Delhi District Court
State vs . Deepak Choudhary & Ors. on 22 May, 2019
State V. Deepak Choudhary & Ors.
IN THE COURT OF MM05, EAST, KARKARDOOMA COURTS, DELHI
Presided by : Ms. Aakanksha Vyas
Cr. Case 10008/2016
STATE Vs. Deepak Choudhary & Ors.
FIR No. 462/07
PS Krishna Nagar
JUDGMENT:
a) Case No. : 10008/2016 b) Name of the complainant : Inspector Anil Sharma
c) Name, parentage and address : 1.Deepak Choudhary, S/o Sh.
of the accused Chander Pal Choudhary, R/o
H.NO. 30/31, Gali no.4, East
Azad Nagar, Delhi
2. Iqbal, S/o Sh. Abdul Aziz, R/o
28/1/2, East Azad Nagar, Delhi
3. Shahid, S/o Sh. Abdul Aziz, R/o
28/1/2, East Azad Nagar, Delhi.
4. Naseem S/o Sh. Abdul Aziz,
R/o 28/1/2, East Azad Nagar,
Delhi.
d) Offences charged : U/s 3/ 4/ 5 of Delhi Public
Gambling Act.
e) Plea of accused : Not guilty
f) Date on which judgment was : 10.05.2019
reserved
g) Final order : Acquittal
h) Date of decision : 22.05.2019
FIR No. 462/07 page no. 1 of pages 8
State V. Deepak Choudhary & Ors.
FINAL ORDER
1. Vide this order I shall dispose off the present case in which the accused persons herein have faced trial for the commission of offences u/s 3/4/5 of the Delhi Public Gambling Act 1955. Briefly put, the case of the prosecution is that on 29/9/2007, Inspector Anil Kumar Sharma Addl. SHO PS Krishna Nagar received information at 4:45 pm that one Shahid alongwith his friends was indulging in betting on the cricket match of India v. Australia on the ground floor of his two room factory at 28/1//2 East Azad Nagar Krishna Nagar (hereinafter referred to as the spot/premises in question) and he had engaged in betting in the twenty twenty matches also. The said information is stated to have been recorded vide DD no. 26A and a raiding party comprising of Inspector Anil Sharma, HC Rajpal, HC Suresh, Ct. Kapil and Ct. Pramod was constituted which reached the spot at about 5:00 pm and after obtaining search warrant from the DCP, a raid was conducted at the spot and the accused persons were arrested and 6 mobile phones, one LG TV, 2 copies, 2 reynolds pen and one tine box containing 25750/ were seized. Accordingly, the present case was registered against the accused persons vide FIR no. 462/2007. After the completion of the investigation, charge sheet for aforesaid offences was filed against the accused persons and they were sent up to face trial.
2. To prove its case, the prosecution examined six witnesses. Ct. Kapil, Ct. Pramod, Inspector Anil Sharma and SI Rajpal Singh i.e. members of the raiding party were examined as PW1, PW 2, PW 4 and PW 5. PW3 is ASI Madan Singh who proved the registration of the present FIR on the basis of the rukka sent by Inspector Anil Sharma through Ct. Pramod and also proved the endorsement made by him on the rukka. PW6 is HC Anoop Singh who FIR No. 462/07 page no. 2 of pages 8 State V. Deepak Choudhary & Ors.
proved the search warrant issued by the concerned DCP upon the request of the Inspector Anil Sharma qua the spot.
3. Statements of accused persons were recorded U/s. 313 Cr.P.C. wherein they pleaded innocence and false implication in this case. However, accused persons chose not to lead defence evidence. Thereafter final submissions were heard. Ld. APP for state has argued that the testimony of police witnesses is consistent with each other and contradictions if any are minor in nature and do not impeach their credit. Further, reasonable explanation has been given for not joining the public witnesses. On the other hand, the accused have not led any defence evidence. In other words, the Ld. APP contended that a holistic reading of the testimony of prosecution witnesses shows that the offences u/s 3 & 4 of Delhi Public Gambling Act 1955 are proved beyond reasonable doubt.
Per contra, the Ld. Counsel for the accused has argued that there is no legally sustainable evidence against the accused persons. There are material contradictions in the testimony of PW1, PW2, PW4 and PW5. Further, it is argued that no public witness was joined during investigation nor any sufficient explanation given in this regard which renders the case of the prosecution highly suspect.
4. In the present case, the accused persons have been charged with the commission of offences u/s 3/4/5 of Delhi Public Gambling Act 1955. At the outset, it may be pointed out that Section 5 is merely procedural, dealing with the power of District Magistrate or Superintendent of Police to enter or authorize any police officer not below the rank of Sub Inspector to enter and search any premises believed to be used as a common gaming house and does not carve out any substantive offence. Thus essentially, the accused FIR No. 462/07 page no. 3 of pages 8 State V. Deepak Choudhary & Ors.
persons have faced trial for the commission of offences u/s 3 and 4 of the Act. Before proceeding further, it would be apposite to note the contents of Section 3 and 4 of the Act.
Section 3 of the Act provides that: "Whoever, being the owner or occupier or having the use of any house, room, tent, enclosure, space, vehicle, vessel or place in the Union Territory of Delhi opens, keeps or uses the same as common gaminghouse; 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 gaminghouse; 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 funishes money for the purpose of gaming with persons frequenting such house, room, tent, enclosure, space, vehicle, vessel or place; shall be liable to imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to one thousand rupees."
Section 4 of the Act provides that: "(1) 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 imprisonment for a term which may extend to three months and shall also be liable to fine which may extend to five FIR No. 462/07 page no. 4 of pages 8 State V. Deepak Choudhary & Ors.
hundred rupees (2) Whoever is found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming."
5. It is settled proposition of criminal law that prosecution is supposed to prove its own case beyond all reasonable doubt by leading reliable, cogent and convincing evidence. Further, in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. It is also settled proposition of criminal law that throughout the trial, burden of proof is on the prosecution and it never shifts on to the accused and the accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal. Having said so, in the present case, upon a considered reading of the judicial file, I am of the opinion that the prosecution has failed to discharge the burden of proof cast upon it and there are various facts which create a reasonable doubt upon the version of the prosecution. The same is discussed hereunder.
6. To begin with, it is pertinent to note that what is penalized by section 3 of the Act is essentially the operation of a common gaming house. Common gaming house is defined under section 2 (iii) of the Act. Thus as per section 3 of the Act, the offender should have the dominion over the place where the gaming house is being run but the dominion of either of the accused over the premises in question is not proved by the prosecution. The prosecution has failed to place on record any document to show the ownership, tenancy or any right of any of the accused persons over the said premises allegedly used as a gaming house.
Further, no public witness has been engaged in this case nor any FIR No. 462/07 page no. 5 of pages 8 State V. Deepak Choudhary & Ors.
sufficient explanation given for not joining public witness at the time of apprehension of the accused persons or conducting the search of the premises or at the time of seizure of articles. Let us see the testimony of the PWs on this point. PW1 has deposed during cross examination that the premises in question was situated in a crowded place and the Investigating officer (IO) did not ask any public person to join the investigation in his presence. PW2 also deposed during cross examination that IO did not ask anyone from the adjacent houses to join the investigation while PW4 Inspector Anil Sharma admitted that he did not give notice to anyone under section 160 CrPC to join investigation. Now, in a case where the public witness are easily available and they are not being joined without any justified reason, the statement of police witnesses only cannot be relied as no public witness has been joined. In this regard, reliance is placed upon the judgment in the case titled Anoop Joshi Vs. State 1992(2) C.C. Cases 314(HC) in which the High Court of Delhi had observed as under:
"It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
FIR No. 462/07 page no. 6 of pages 8 State V. Deepak Choudhary & Ors.
7. The case of the prosecution is that secret information was received to the effect that on the accused persons were betting on the cricket match of India v. Australia. Further, the PWs have deposed that when the raid was conducted on the premises in question, cricket match was playing on the television and the accused persons were talking on the mobile phones and writing on a copy. However, in the present case, there is no document on record to show that match was being played between Australia and India on the relevant date. The fact that the accused persons were actually betting on the match is also not proved as in the present case, no decoy customer was sent to put a stake on the cricket match. As per the PWs, the accused persons were talking on the mobile phones and playing satta but no verification has been done by the IO regarding the SIM cards of the mobile phones seized nor their CDRs have been placed on record to unearth information regarding the customers of the accused persons. No verification has also been done regarding the manner in which the satta was being done. So far as question of recovery of Rs. 25,750/ recovered from the accused persons is concerned, the same cannot be connected with the stake amount.
8. There are also contradictions in the testimonies of the PWs. PW1 and PW5 have deposed that all the members of the raiding party were in uniform while PW4 has deposed that he and Ct. Suresh were in uniform while the rest of the members of the raiding party were in civil dress. PW2 has deposed that the members of the raiding party reached the spot on a government vehicle whereas PW1 deposed that he went to the spot on a motorbike. Subsequently, during cross examination, PW2 himself deposed that the members went to the spot on their private motorcycles.
FIR No. 462/07 page no. 7 of pages 8 State V. Deepak Choudhary & Ors.
10. In the light of the preceding observations, it cannot be said that the prosecution has been able to prove its case beyond all reasonable doubt. Accordingly all the accused persons stand acquitted of the offences charged.Digitally signed by
Announced in the open court on AAKANKSHA AAKANKSHA VYAS Location: Court No.3, this day i.e. 22.05.2019 VYAS Karkardooma Courts, Delhi Date: 2019.05.22 14:44:24 +0530 (AAKANKSHA VYAS) MM5, East, KKD Courts, Delhi/22.05.2019 FIR No. 462/07 page no. 8 of pages 8