Delhi District Court
State vs . Subhash on 26 April, 2022
IN THE COURT OF SH. VINOD JOSHI, MM-02 (EAST),
KARKARDOOMA COURTS, DELHI
State Vs. Subhash
FIR No : 289/2010
U/s 12/9/55 Delhi Public Gambling Act
PS : Geeta Colony
JUDGMENT
01. CIS Number of the case : 3283/2016
02. Date of Commission of Offence : 28.10.2010
03. Date of institution of the case : 21.12.2011
04. Name of the complainant : SI Vijay Kumar
05. Name of the Accused : Subhash @ Bhavi
S/o Sh. Madan Lal,
R/o 15/28, Geeta Colony,
Delhi
06. Offence complained of : U/s 12/9/55 D. P. Gambling
Act
07. Plea of the Accused : Pleaded not guilty
08. Arguments heard on : 25.04.2022
09. Final order : Acquitted
10. Date of such order : 26.04.2022
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. Briefly stated, the cae of the prosecution is that on 28.10.2010, at about 08:20 PM, at near the Wall of Mehandi Park, Opposite 14 Block, Geeta Colony, Delhi, the accused was found gambling/gaming with the help of satta slip i.e. by booking satta, while giving the numbers on a slip and stake money of Rs. 3585/- was recovered from him and he thereby committed an offence punishable under Section 12 of The Delhi Public Gambling Act 1955.
2. Upon completion of investigation, charge sheet for the offence punishable under Section 12 of Gambling Act was filed on behalf of the IO and the accused was consequently summoned. Perusal of file reveals that notice for commission of offence under Section under Section 12/9/55 Gambling Act was FIR No. 245/02 State Vs. Subhash Page 1 of 8 framed against the accused by the Ld. Predecessor to which he pleaded not guilty and claimed trial.
3. In order to establish its case against the accused, prosecution has got examined four witnesses.
4. PW-1, Ct. Satpal has deposed that on 28.10.2010, he alongwith Ct. Ravi Kumar was patrolling in the area of PS and when they they reached at 14 Block, Mehandi Park, Geeta Colony, Delhi, SI R.N. Pathak and Ct. Sambha Murti met them. He further deposed that a secret informer informed the IO that one person was playing satta while standing near the wall of the park in the form of khaiwari and writing down the slips and if raid was conducted, he might be apprehended. He further deposed that IO asked 4-5 passers-by to join the investigation but none of them joined the same and left the spot without disclosing their names and addresses. He further deposed that IO formed a raiding party including them and handed over the currency note of Rs. 100/- while signing and marking the date on the same to him. He further deposed that the IO instructed him to go to the accused persons along with secret informer and also instructed him to make the signal while itching my hair whenever the accused wrote down the satta slip and thereafter, as the direct of IO, he along with secret informer had gone to the accused and he handed over the said currency note to the accused and asked him to write down the satta slip and accused wrote a number on the satta slip and handed over the same to him after taking the said currency note from him. He further deposed that the accused kept the said currency note in the right pocket of his pant and as per the instructions of IO, he made a signal to the IO while itching his hair upon which IO along with other staff reached at the spot. He deposed that the accused was formally searched and viz. the said currency note of Rs. 100/-, Rs. 3585/-, 23 written satta slips, one pen and diary were recovered from the possession of accused. He deposed that the IO seized the case property vide seizure memo Ex. PW1/A to Ex. PW1/D respectively and prepared a separate pullinda of the said case property and sealed it with the seal of RNP and seal after use was handed over to him. He deposed that IO prepared the rukka and handed over the same to him for registration of FIR. After registration of FIR, he came back at the spot alongwith IO/SI Vinay Kumar. He deposed that accused was arrested vide arrest memo Ex. PW1/E and his personal search was conducted vide memo Ex. PW1/F. He deposed FIR No. 245/02 State Vs. Subhash Page 2 of 8 that the case property was deposited in the Malkhana. The witness correctly identified the case property Ex. P1 to Ex. P7. This witness has been cross-examined on behalf of accused.
5. PW-2, HC Om Prakash, is the Duty Officer, who recorded the present case FIR bearing no. 289/10, copy of which is Ex. PW2/A and made endorsement on the rukka Ex. PW2/B.
6. PW-3, SI Vijay Kumar is the second IO of the case who has deposed that on 28.10.2020, he received a rukka along with copy of FIR in case FIR no. 289/2010 from DO at about 10:00 PM. He further deposed that thereafter, he along with Ct. Satpal went to the spot where SI R.N. Pathak alongwith Ct. Sambha Murti, Ct. Ravi and accused met him and SI R.N. Pathak informed him about the facts of the case and handed over four sealed envelopes, four seizure memo and accused to him. He prepared the site plan Ex. PW3/F at the instance of SI R.N. Pathak and arrested the accused vide arrest memo Ex. PW1/E and personally searched vide memo Ex. PW1/F. He also deposed that accused was released on bail at the spot, he recorded the statement of the witnesses u/s 161 Cr.PC and thereafter, he received the case property and deposited in the Malkhana. He completed other formalities of the investigation and after preparing the challan, submitted the same before the Court. This witness has correctly identified the accused in the Court.
7. PW-4, SI R.N. Pathak is the first IO of the case who has deposed almost on the same lines as of PW1. He has also deposed that he seized the marked note and slip with number vide memo Ex. PW1/B in an envelope with the seal of RNP. He further deposed that he seized the pen in an envelope vide memo Ex. PW1/A and currency note total Rs. 3485/- in an envelope vide seizure memo Ex. PW1/D and 22 satta slip in an envelope vide memo Ex. PW1/C. He further deposed that he prepared the rukka Ex. PW4/A and handed over the same to Ct. Satpal and sent him to the PS for registration of FIR. He further deposed that Ct. Satpal went to PS for getting the FIR registered and return to the spot along with copy of FIR, rukka and SI Vijay Kumar. He further deposed that he had handed over the case property, the documents and custody of accused to SI Vijay Kumar. He further deposed that SI Vijay Kumar prepared the site plan Ex. PW3/A at his instance. This witness has correctly identified the accused and the case property in the Court. This witness has FIR No. 245/02 State Vs. Subhash Page 3 of 8 been cross-examined on behalf of accused.
8. Thereafter, vide order dated 12.04.2022, PE was closed. The statement of the accused Subhash was recorded u/s 313 Cr.P.C. read with Section 281 Cr.P.C whereby all the incriminating evidence including exhibited documents available on record were put to him. He denied the prosecution case in its entirety and stated that he was innocent and had been implicated falsely in the present case and nothing has been recovered from his possession.
09. This Court has heard the Ld. APP for State and Ld. Counsel for the accused and perused the entire judicial record carefully.
APPRECIATION OF EVIDENCE :
10. The relevant extract of the cross-examination of witnesses is as under:
a) PW-1 Ct. Satpal has deposed during his cross examination that when the accused was arrested, public persons were gathered at the spot and the spot is in residential area. He further deposed that IO did not offer their personal search to the accused. He also deposed that IO has asked 4-5 public persons to join the investigation but none agreed and no notice was given to the public persons by the IO.
b) PW-3 SI Vijay Kumar has deposed during his cross examination that no public witness had joined the investigation and he had asked some public persons to join the investigation, but they did not join the same as it was night and he did not serve any written notice to the passers-by.
c) PW-4, SI R.N. Pathak has deposed during his cross examination that they did not conduct the personal inspection of the members of the raiding party prior to the raid. He deposed that he did not conduct the personal inspection of the members of the raiding party prior to the raid.
11. In case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69 , the Hon'ble High Court of Punjab & Haryana held as following:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of FIR No. 245/02 State Vs. Subhash Page 4 of 8 contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
12. Hon'ble Supreme Court in a judgment reported as Hemraj vs State of Haryana [AIR 2005 SC 2110] observed as follows:
"...the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case..."
13. Burden lies on the prosecution to establish that the association of any person as Public witness was not possible in the facts and circumstances of this case. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to seen with suspicion.
FIR No. 245/02 State Vs. Subhash Page 5 of 814. There is nothing in the testimony of any of the witnesses whether any sincere efforts were made by them to join the independent witness. The only explanation accorded by the IO is that they refused to join the proceedings. Such an ordinary reply/ explanation of the IO does not support the case of prosecution in any manner. The IO could have very well taken down the names of the public persons, who were asked to join the raid and in case of such refusal to render assistance, could have proceeded against them as per Section 187 of IPC.
15. Further, from the record, it appears that after apprehension of the accused and before taking the formal/casual search of the accused, police official(s) had not offered their own search to the accused before taking his search. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty v. State of Orissa . In this case relying upon the judgment of the Supreme Court in State of Bihar v. Kapil Singh AIR 1969 SC 53 : (1969 Cri. L.J 279) it has been held that one of the formalities that has to be observed in searching a person is that the searching officer and others assisting him should give their personal search to the accused before searching the person of the accused. This rule is meant to avoid the possibility of implanting the object which was brought out by the search. The police officials have to offer themselves for personal search by the accused before conducting the personal search of the accused. What renders the alleged recovery more questionable is the fact that PW-1 knew the accused prior to the day of alleged recovery. PW-1 has categorically stated in his cross examination dated 03.09.2015 that he knew the accused prior to the alleged recovery. The court hereby concludes that the possibility of implanting the allegedly recovered material is not ruled out in the present case.
16. The prosecution has failed to prove the mandatory DD entries with respect to departure of PW-1 and PW-4 from PS for patrolling duty or regarding presence of PW3 in the given area at the relevant time. This also strengthens the doubt of presence of these witnesses at the spot and consequently, the arrest of the accused.
As per Chapter 22 Rule 49 of Punjab Police Rules, 1934 :-
"22.49 Matters to be entered in Register No.II. The Following matters shall, amongst others, be entered :-FIR No. 245/02 State Vs. Subhash Page 6 of 8
(C) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term police station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
At this juncture, it would be relevant to refer to a case law reported as :
"Ratan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery.
17. In the instant case in hand, it has been stated by the PW-4 that the rukka was sent to PS through PW-1 for registration of FIR, after the seizure memos viz. Ex. PW1/A, Ex. PW1/B, Ex. PW1/C and Ex. PW1/D were prepared at the spot, however, perusal of all the seizure memos reflects that the FIR no. 289/10 is mentioned upon all the seizure memos, which makes the alleged recovery doubtful. It also casts doubts upon the chain of events put forward by the prosecution. Contradiction is also reflected in the respective testimonies of PW-3 and PW-4, qua the personal search of the accused, wherein they both claim that they had conducted his personal search.
18. PW-3, SI Vijay Kumar has deposed that he prepared the site plan Ex.PW3/A at the instance of PW-4 SI R.N. Pathak. However, perusal of the site plan Ex. PW3/A reveals that the site plan has not been signed by SI R.N. Pathak, who was FIR No. 245/02 State Vs. Subhash Page 7 of 8 allegedly present at the spot and on whose instance the same was prepared.
19. In view of the above discussion, the court is of the view that the prosecution has failed to prove its case beyond reasonable doubt and the accused deserves the benefit of doubt and is, accordingly, acquitted of the charged offence punishable u/s 12/9/55 D.P. Gambling Act.
File be consigned to Record Room.
Digitally
signed by
Announced in the Open Court Vinod Vinod Joshi
Date:
on 26.04.2022 (VINOD JOSHI)
Joshi 2022.04.25
MM-02(E)/KKD COURTS/DELHI
17:18:21
+0530
FIR No. 245/02 State Vs. Subhash Page 8 of 8