Delhi District Court
State vs . on 11 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 15665/2019
Unique Case ID No. -: DLSW020465802019
FIR No. -: 266/2019
Police Station -: BHD Nagar
Section(s) -: 12 Delhi Public
Gambling Act.
In the matter of -
STATE
VS.
1) RAVINDER
S/o Sh. Prabhu Dayal
R/o H. no. 1164,
Jatav Mohalla, Najafgarh,
New Delhi.
2) RAM SARAN
S/o Sh. Ram Chander,
R/o H.no. 1164, A-19,
Jatav Mohalla, Najafgarh,
New Delhi.
.... Accused
1. Name of Complainant : HC Jitender Singh
1) Ravinder
2. Name of Accused :
2) Ram Saran
Offence complained of or 12 Delhi Public Gambling Act,
3. :
proved 1955.
4. Plea of Accused : Not guilty
Date of commission of
5. : 01.07.2019
offence
6. Date of Filing of case : 06.09.2019
7. Date of Reserving Order : 23.03.2023
Cr. Case No. 15665/2019 State vs. Ravinder Page 1 of 9
8. Date of Pronouncement : 11.04.2023
9. Final Order : Acquitted
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION
-:
FACTUAL MATRIX -
1. Succinctly, it is the case of the prosecution that on 01.07.2019, at about 06.40 PM at Nangloi Najafgarh Road, near the pavement of Holi Cross School, Najafgarh, Delhi, within the jurisdiction of PS BHD Nagar, accused were found gambling at the said public place, and thereby an committed an offence punishable under Section 12 of Delhi Public Gambling Act, 1955.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of subject FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused was filed.
After taking cognizance of the offence, accused persons were summoned to face trial for the abovesaid offence.
3. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Section 12 of Delhi Gambling Act was framed against accused. Accused pleaded not Cr. Case No. 15665/2019 State vs. Ravinder Page 2 of 9 guilty and claimed trial.
PROSECUTION EVIDENCE -
4. The matter was then fixed for recording PE. In support of its version, prosecution has examined a total of two witnesses.
4.1 PW-1 ASI Jitender Singh deposed that on the date and time of the incident, he was on patrolling duty, when he apprehended both accused persons, who were gambling at a public place, with playing cards. He deposed that total 52 cards and Rs. 320/- in denomination of Rs. 10 x 32 were recovered from them. He further deposed that he seized the currency notes and cards vide seizure memo, Ex. PW1/A and Ex.PW1/B, and sealed them with the seal of 'JS'. In his testimony, he also relied upon the site plan of the spot Ex. PW1/D. Finally, he deposed that he deposited the case property in the malkhana of the PS concerned. When the case property was produced, it was correctly identified by the witness. The playing cards were exhibited as Ex. P1 (colly) and the currency notes were exhibited as Ex. P2 (colly). The witness then was duly cross examined and discharged.
4.2 Prosecution next examined Ct. Suresh as PW2. PW2 deposed that on 01.07.2019 i.e. the date of the incident, he was on patrolling duty with Ct. Jitender / PW1. Similar to the testimony of PW1, PW2 also deposed about the apprehension of accused persons at the time that they were gambling in a public Cr. Case No. 15665/2019 State vs. Ravinder Page 3 of 9 place, and the seizure of the playing cards and the currency notes. PW2 also identified the case property correctly, i.e. Ex. P1 and Ex. P2.
5. The remaining documents i.e. FIR no. 266/2019 PS BHD Nagar Ex. A1 and certificate under Section 65B of Indian Evidence Act, 1872 Ex. A2 were put to the accused, and were admitted by them under Section 294 CrPC. Accordingly, the remaining witnesses, formal in nature, were dropped from the list of prosecution witnesses. PE was closed thereafter.
6. Thereafter, in order to accord an opportunity to the accused to personally explain the incriminating circumstances appearing in evidence against them, the statements of both accused were recorded without oath under Section 313/281 CrPC. They submitted that they are innocent and have been falsely implicated in the present case. To a specific query, they stated that they do not wish to lead defence evidence in the affirmative.
7. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.
8. In order to establish the guilt of the accused persons and to secure a conviction, the prosecution was required to prove their guilt beyond any reasonable doubt. It is to be remembered that in a criminal trial, the prosecution has to traverse the distance between 'may have' to 'must have'. In the considered opinion of this court, in this endeavor, the prosecution miserably failed.
Cr. Case No. 15665/2019 State vs. Ravinder Page 4 of 99. The prosecution case rests on the alleged recovery of case property, i.e. the playing cards and 32 currency notes in the denomination of Rs. 10/-, from the possession of the accused persons at the relevant time by police officials namely ASI Jitender and Ct. Suresh, who were on patrolling duty at the relevant time and place. However, no document / DD entry was proved by the witnesses on the record which could establish that they actually left the police station at the relevant time for the purpose of patrolling duty the time of the incident. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and 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. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In fact, PW1 and PW2 both deposed that they were on patrolling duty vide DD entry no. 57A Ex. PW2/X1, but admitted in their testimonies that the same does not contain their signatures. The said document is inchoate, and does not fulfil the requirement of law. In absence of the departure and arrival entry of the police officials, their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"if the investigating agency deliberately ignores to Cr. Case No. 15665/2019 State vs. Ravinder Page 5 of 9 comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
10. The offence with which accused persons are charged is that they were gambling at a public place. Yet, record reveals that no public witness was joined by the IO to the investigation. Now, it is true that non-joining of independent witnesses cannot be a sole ground to discard the entire prosecution story, in view of the law laid down by the Hon'ble Supreme Court of India in Appabhai versus State of Gujarat AIR 1988 SC 696, evidence in each case has to be weighed in light of the peculiar factual matrix of the same. Non-joining of public witnesses, despite their easy availability, reflects lack of genuine efforts on the part of the prosecution, denting its case. The IO could have easily served notice in writing to the witnesses, to make them join the investigation. But not to be. Where the IO has failed to make genuine efforts to join public witnesses, veractity of the case of prosecution becomes doubtful. At this juncture, this court seeks guidance from the law laid down by the Hon'ble High Court of Delhi in Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC):-
"18.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 Cr. Case No. 15665/2019 State vs. Ravinder Page 6 of 9 witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 rigours 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".
11. PW1 and PW2 both admitted that there is a School as well as a Church close to the place of recovery. They also admitted that they did not make any efforts to obtain the CCTV footage of either of these institutions, which could have bolstered their case. In view of the fact that PW1 and PW2 did not make any efforts to procure evidence which was easily available at hand, a further shadow of doubt is created upon the case of prosecution.
12. Both PW1 and PW2 have deposed that accused persons were gambling with the help of playing cards and cash. Yet neither of them have deposed as to how the recovered articles were being used by them for the purpose of gambling. In other words, the witnesses did not depose as to in what manner exactly gambling was going on, before the accused persons were apprehended. Accused persons can not be convicted only on the strength of a Cr. Case No. 15665/2019 State vs. Ravinder Page 7 of 9 conjecture that since accused persons were apprehended in possession of playing cards and cash, they were indulging in betting and gambling. Since the exact modus of the offence has not been established, prosecution can not secure the conviction of accused persons for the offence of gambling.
13. PW1 and PW2 have deposed that the case property was sealed vide seizure memo Ex. PW1/A and Ex. PW1/B. After the seizure thereof, the seal admittedly remained in possession of the official posted in the same police station, in the malkhana of which police station the case property was deposited. As such, the possibility of tampering with the case property can not be ruled out. This is more so in view of the fact that case property Ex. P1 consists of a deck of playing cards, easily available in the market, and Ex. P2 are currency notes, also easily available.
14. Case of prosecution is that recovery of case property was made from the accused persons by police officials, PW1 and PW2. Both PW1 and PW2 admitted that they did not offer their personal search to the accused persons before searching them. In view of the same, possibility that the case property was planted upon the accused persons can not be ruled out.
15. PW1 and PW2 also admitted in their testimonies that the seizure memo Ex. PW1/A and Ex. PW1/B contain the details of the subject FIR. Now, the FIR must have, of necessity, being registered after the seizure memo was prepared. In this circumstance, it was upon the prosecution to explain how the FIR number finds a mention on the seizure memos. However, no Cr. Case No. 15665/2019 State vs. Ravinder Page 8 of 9 explanation in this regard was offered by prosecution. The possibility that the FIR was registered prior to the recovery of the case property can not be ruled out in view of this discrepancy, and because of the same, the prosecution case appears to be shrouded in doubt.
16. These factors show that the prosecution miserably failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, accused Ravinder S/o Prabhu Dayal and Ram Saran S/o Ram Chander, stand acquitted of the offence punishable under section 12, Delhi Public Gambling Act, 1955.
File be consigned to record room after due compliance with Section 437A CrPC.
Pronounced in open court on 11.04.2023 in presence of accused person. This judgment contains 9 pages and each page has been signed by the undersigned. Digitally signed MEDHA by MEDHA ARYA ARYA Date: 2023.04.11 17:16:58 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 11.04.2023 Cr. Case No. 15665/2019 State vs. Ravinder Page 9 of 9