Madhya Pradesh High Court
Kailash Chand Jain vs The State Of Madhya Pradesh on 7 December, 2015
HIGH COURT OF MADHYA PRADESH AT JABALPUR.
Cr.R. No. 2270/ 2013
Kailash Chand Jain
Vs.
The State of M.P.
Present:
Hon'ble Shri Justice C.V. Sirpurkar
Shri Ajay Raizada, counsel for the applicant.
Shri K.S. Patel, Panel Lawyer for the respondent
_____________________________________________________
ORDER
(07 /12/2015)
1. This criminal revision filed on behalf of the revisionist/ accused Kailash Chand Jain is preferred against the order dated 07.09.2013 passed in Criminal Appeal No. 33 of 2013, Passed by the Court of Second Additional Sessions Judge, Seoni, whereby conviction and sentence of revisionist Kailash Chand Jain under Section 3 and 4 of the Public Gambling Act imposed by Judicial Magistrate First Class Seoni in Criminal Case No. 4050/2008, by judgment dated 05.03.2013, was affirmed.
2. The case of prosecution before the learned Magistrate may be summarized as hereunder: on 06.06.2008 Town Inspector of P.S. Kotwali, Seoni, received an information from the informant to the effect that accused/revisionist Kailash Chand Jain runs business of gaming (Satta) on telephone and mobile phone from his house. He keeps his house closed so as to ward off a raid by police. He has purchaseed properties on a large scale from the business of gaming (Satta). It was further informed by the informant that he goes to the temple every morning and after returning from temple he takes account of the earnings from gaming and receives the disburses the amount.
3. On aforesaid information, on 7.6.2008 Town Inspector Basant Naik took independent witnesses Pramod Kumar and Jagdish Prasad and apprised them of aforesaid information. He duly obtained a search warrant and constituted a raid party comprising Sub-Inspector Hitendra Nath Sharma, Head Constable Ramesh Maneshwar and seven other Constables and a Home Guard and raided the house of the accused/ revisionist. They reached the spot by official vehicle at about 9:25 am. On entering the house and taking search of second room, they found handwritten gaming slips containing names of certain persons and figures (Satta Patti), a mobile phone, one landline telephone and Rs. 83,830/- in cash lying on the bed. Apart from aforesaid, several bank pass books, documents and revenue documents relating to land, postal pass books, insurance policies, fixed deposit receipts and Kisan Vikas Patra etc. reflecting income earned from gaming business, were discovered in the house and duly seized.
4. A First Information Report under Sections 3 and 4-A were registered against the revisionist and a charge sheet in the Court of Judicial Magistrate first class was filed. Learned Magistrate explained particulars of charge to the revisionist under Section 3 and 4 (5) of the Public Gambling Act, who abjured the guilt and claimed to be tried. He took the defence to the effect that he had made a complaint against the police; therefore, the police force of Seoni forcibly entered his house and took away 12 tolas gold ornaments and Rs. 1.5 lacs in cash and falsely implicated him in this case. The police has shown a lessor amount in seizure memo then the one actually seized. He is innocent. He does not indulge in gaming. He and all the family members are traders and earned their living honestly. The revisionist also examined three witnesses in defence.
5. After trial, learned Magistrate found the offence under Section 3 and 4 of the Public Gambling Act proved beyond doubt against the revisionist and imposed a fine of Rs. 1000/- under Section 3 and a fine of Rs. 500/- under Section 4 of Public Gambling Act and in default of payment of fine, he was directed to undergo further period of simple imprisonment of one month and 15 days respectively. In addition thereto, the amount of Rs. 83,830/- recovered from the revisionist was also forfeited in favour of the State.
6. The revisionist challenged the judgment dated 5-3-2013 passed by the learned Magistrate before the Second Additional Sessions Judge, Sioni, Who affirmed conviction under sections 3 and 4 of the Public Gambling Act, as also the sentence of fine so imposed. The forfeiture of the seized amount of Rs. 83,830/- was also upheld.
7. The judgment passed by the learned Additional Judge, has been challenged in this criminal revision mainly on following grounds:
(a) The particulars of offence as explained by learned Magistrate to the revisionist were fundamentally defective and misled the revisionist.
(b) It is not the case of the prosecution that the revisionist was actively engaged in gambling at the time of raid.
(c) There was no one other than the revisionist present in the house at the time of the raid.
(d) No investigation with regard to call details of the mobile phone etc. was made to establish that the seized telephones were actually used for the purpose of gaming.
(e) The names and figures on alleged Satta Patti were neither printed nor published nor any information with regard thereto, was disseminated.
(f) The independent witness had turned hostile.
(g) The accused had previously instituted a suit for malicious prosecution against certain officers of police department, department therefore they had motive to falsely implicate the accused.
(h) In aforesaid circumstances no presumption under the act arises.
8. A perusal of the record of the trial Court reveals that independent witnesses Pramod Tiwari (PW-1) and Ashish Trivedi (PW-2) have turned hostile and have blandly stated that they are neither acquainted with the accused nor any such raid was conducted in their presence. They signed the documents simply because Police had asked them to do so. However, prosecution witnesses Town Inspector Basant Nayak (PW-3) and Sub Inspector Hitendra Nath Sharma (PW-4) have supported the prosecution story. The gist of their evidence is that on receiving information from the informant at 6:10 am on 7.6.2008 Sub-Inspector Hitendra Nath Sharma was sent to Sub-Divisional Officer, for obtaining search warrant. After receiving search warrant, they summoned independent witnesses. The witnesses were informed about the information received from the informant; thereafter, a raid party comprising Town Inspector Basant Nayak and Sub- Inspector Hitendra Nath Sharma, Head Constable Ramesh Maneshwar and seven other constables and a home guard was constituted. The raid party surrounded the house of the accused/ applicant. On due search, in second room of the house, gaming slips (Satta Patti) from articles A1 to A5), a mobile phone, a land-line telephone and a sum of Rs. 83,830/- in cash were found on the bed, which were duly seized. In addition thereto, several pass books, insurance policies, revenue documents relating to agricultural land, fixed deposit receipts, Kisan Vikas Patra and several other documents showing investment of earnings from gaming business, were discovered in the house and were duly seized. The accused was arrested and released on bail. First Information Report was recorded and after investigation, a charge-sheet as aforesaid, was filed in the Court of Judicial Magistrate First Class.
9. Learned trial Court explained particulars of offence under Sections â3, 4 (5)â of the Public Gambling Act, 1867 (hereinafter referred to in this order, as âthe Actâ). It may be noted at the out-set that there is no sub-section (5) to Section 4 of the Act. The first information report was recorded under Section 3, and 4-A of the Act. The charge- sheet was filed under Section 3 / 4 of the Act.
10. Sections 3, 4 and 4-A of the Public Gambling Act 1867 as applicable to the State of Madhya Pradesh read as follows:
â3. Penalty for owning or keeping or having charge of a gaming-house:- Whoever, being the owner or occupier, or having the use, of any house, room, tent, enclosure, space, vehicle, vessel or place situate within the limits to which this Act applies, opens, keeps or uses the same as a common gaming-house; and whoever, being the owner or occupier of any such house, room, tent, enclosure, space, vehicle, vessel or place as aforesaid, knowingly or willfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house; and whoever has the care or management of, or in any manner assists in conducting the business of any house, room, tent, enclosure, space, vehicle, vessel or place as aforesaid, opened, occupied, used or kept for the purpose aforesaid; and Whoever advances or furnishes money for the purpose of gaming with persons frequenting such house, room, tent, enclosure, space, vehicle, vessel or place, shall be punished--
(a) for the first offence with imprisonment which may extend to six months or with fine which may extend to one thousand rupees;
(b) for a second offence with imprisonment which may extend to one year and, in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, shall not be less than fourteen days, either with or without fine which may extend to two thousand rupees; and
(c) for a third or subsequent offence with imprisonment which may extend to one year and, in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, shall not be less than four months, together with fine which may extend to two thousand rupeesâ.
â4. Penalty for being found in gaming-house:-
Whoever is found in any such house, room, tent, enclosure, space, vehicle, vessel or place, playing or gaming with cards, dice, counters, money or other instruments of gaming or is found there present for the purpose of gaming, whether playing for any money, wager, stake or otherwise, shall be liable to a fine not exceeding five hundred rupees, or to imprisonment of either description, as defined in the Indian Penal Code ( 45 of 1860) for any term not exceeding four months.â 4A. Punishment for printing or publishing digits, figures, signs, symbols or pictures relating to Worli Matkas or other form of gaming-- (1) Whoever prints or publishes in any manner whatsoever any digits or figures or signs or symbols or pictures or combination of any two or more of such digits or figures or signs or symbols or pictures relating to Worli Matka or any other form of gaming under any heading whatsoever or by adopting any form of device, or disseminates or attempts to disseminates or abets dissemination of information relating to such digits or figures or signs or symbols or pictures or combination of any two or more of them shall be punishable with imprisonment which may extend to six months and with fine which may extend to one-thousand rupees.
(2) Where any person is accused of an offence under sub-
section (1), any digits or figures or signs or symbols or pictures or combinations of any two or more of such digits or figures or symbols or pictures in respect of which the offence is alleged to have been committed, shall be presumed to relate to Worli Matka gaming or some other form of gaming unless the contrary is proved by accused.
11. It has been recorded in the particulars of offence as explained to the accused/revisionist that the accused performed illegal act by inviting stakes for losing or wining money on the figures recorded in gaming slips (Satta Patti) through mobile phone and telephone.
12. As per the prosecution case, hand written slips of paper containing names of certain persons and figures ( Satta patti), a mobile phone, one land line telephone and Rs. 83830/- in cash lying on the bed in the house of the accused, were seized. Out of aforesaid articles, apart from the alleged gaming slips, no other article can be said to be incriminating in nature by itself. The amount of Rs. 83,800/-, though large, by itself cannot incriminate the accused unless it is proved by the prosecution that the amount constituted proceeds of gaming transactions.
13. No investigation was made with regard to call-details of mobile phone or land line phone to ascertain whether the persons to whom the accused spoke on those phones tallied with the names recorded in one of the gaming slips (Article A-4). Thus, there is no evidence to suggest that mobile phones or the land line telephone were used for the purpose of gaming.
14. When the alleged gaming slips from articles A1 to A5, are examined, it is found that apart from random figures and names like Gopi, Mama, Sheetal, Prakash etc. and words Auto, cash (âNakdiâ), passbook, passbook number in digits, âS.B.â etc. are mentioned. These figures and words appear to be unrelated to each other. The alleged gaming slips are hand written. They are not in printed form. For want of any evidence, they cannot be said to have been published in any form. Since no investigation with regard to calls made on mobile phone or land line telephone was made, it cannot be said that the accused had disseminated, attempted to disseminate or abated dissemination of any information relating to aforesaid digits or figures in any manner. Thus Section 4-A of the Act, would not apply to the present case and the presumption under Sub Section (2) of Section 4 would also not arise.
15. Section 1 of the Act as applicable to State of Madhya Pradesh, defines expression âinstruments of gamingâ as follows:
âThe expression âinstruments of gamingâ includes any article used or intend to be used as subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming and any winnings or prizes in money or otherwise distributed or intended to be distributed in respect of any gaming.â
16. Sub Section (2) of Section 1, as applicable in the State of Madhya Pradesh, defines âcommon gaming-houseâ as follows:
âCommon gaming houseâ means i. in the case of gamingâ
1. ***
2. ***
3. ***
4. ***
5. ***
6. âon the digits or figures or signs or symbols or pictures used in stating the opening, middle or closing digits or figures or signs or symbols or pictures declared for or in connection with worli matka gaming or any other form of gaming.
(ii) In the case of any other form of gaming any house, room, tent, enclosure, space, vehicle, vessel or any place whatsoever, in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, space, vehicle, vessel, place or instrument or otherwise howsoeverâ.
17. It may be noted here that it is not the case of the prosecution that any person other than the accused was present at the time of raid. Thus, it is not as if any active gaming or gambling was going on in the house of the accused. The only arguments of the prosecution is that the articles A1 to A5 constituted âinstruments of gamingâ as define in the Act and since these were found in the house of the accused at the time of the raid, it the falls under the definition of âcommon gaming houseâ.
18. Now the question that arises for consideration is, whether random hand-written figures and a few words on small, stray, slips of paper, as seized in the present case, without any supporting evidence, can be presumed to be gaming slips or any record or evidence of gaming or proceeds of gaming?
19. In this regard, the judgment rendered by a Co-ordinate Bench of this Court in the case of Usuf Khan Vs. State of Madhya Pradesh, 2014, Cr.L.J. 2927 may profitably be referred to. The paragraph no. 7 of the judgment which reads as follows:
â(7) âif the huge sum with some satta slips are recovered from the applicant then, it was for the investigation officer to prove that those were satta slips and therefore, he was expected to tell the reason as to why he found those slips to be satta slips but, in the evidence of Shivbahadursingh, he submitted that neither he saw anybody playing with the applicant through satta slips nor he could show those slips were used for satta purposesâ.
20. Likewise, in an old case of Narayan Vs. State, 1955 Cr.L.J. 170 (2) Madhya Pradesh High Court held that mere making of the assertion that articles seized are records of gaming without giving any reason, is not sufficient to unable the court to draw a presumption against the accused under Section 6; thus there was no material which could enable the Court to draw the inference that articles seized were instruments of gaming.
21. Reverting back to the facts of the case at hand, it may be seen that neither Inspector Basant Nayak (PW-3) nor Sub- Inspector Hitendra Nath Sharma (PW-4) have stated in their evidence as to what were the grounds, which made them believe that articles A1 to A5 were gaming slips. They have simply stated that they found satta slips ( A1 to A5) on the bed of accused's house. In these circumstances, there is no material before the Court to presume that slips of paper (from A1 to A5) were in fact gaming slips, or records of gaming or records of proceeds of gaming transaction, shifting the burden on the accused to prove otherwise. Since, aforesaid articles were not proved to have been gaming slips or record of gaming or proceeds of gaming, it cannot be said that any instrument of gaming was seized from the house of the accused. Consequently, the house of the accused cannot be said to be common gaming house, wherefrom instruments of gaming were seized.
22. In aforesaid view of the matter, neither offence under Section 3 nor offence under Section 4 nor offence under Section 4-A of the Public Gambling Act, 1867, is proved against the revisionist/accused. Thus, the Courts below committed error in law in holding that the prosecution had proved the offence under Section 3 and 4 of Public Gambling Act against accused/revisionist beyond reasonable doubt. Thus, the impugned judgment is not sustainable in the eyes of law.
23. Consequently, this criminal revision is allowed. Impugned judgment is set aside. The conviction of the revisionist/accused under Section 3 and 4 of the Public Gambling Act, 1867, and sentence of fine imposed upon him under aforesaid provisions, is set aside.
24. The order of forfeiture of amount of Rs. 83,830/- seized from the possession of the accused/revisionist is also set aside. Since, the revisionist/accused has claimed aforesaid amount as belonging to him, he is entitled to receive it back. Consequently, the amount shall be returned to him.
(C V SIRPURKAR) JUDGE