Delhi District Court
Fir No. 143/2016, Ps : Hauz Qazi State vs Rais Ahmed @ Rahisu on 23 September, 2019
FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Rais Ahmed @ Rahiso
FIR No. 143/2016
PS : Hauz Qazi
U/s 12 the Gambling Act
Date of Institution : 01.10.2016
Date of reserving of order : 23.09.2019
Date of Judgment : Oral
JUDGMENT
CNR No. DLCT020190512016
1. Serial No. of the case : 306958/2016
2. Name of the Complainant : ASI Devender Singh
3. Date of incident : 07.07.2016
4. Name of accused person :
Rais Ahmed @ Rahiso S/o Late.
Riyaz Ahmad, R/o H. No. 2427, Ezaz Building Bhandari, Hauz Qazi, Delhi
5. Offence for which chargesheet was filed : S. 12 Gambling Act.
6. Offence for which charge Page 1 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu has been framed : S. 12 Gambling Act.
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 23.09.2019 BRIEF REASONS FOR ORDER:
1. Mr. Rais Ahmed @ Rahiso, the accused herein, has been chargesheeted for committing offence punishable under Section 12 of Gambling Act, (hereinafter referred to as "the Act").
2. The case of the prosecution is that on 07.07.2016, secret information was received by ASI Devender Singh that the accused was involved in satta activities. A raid was prepared. Ct. Suresh was prepared as a decoy customer. The decoy customer reached at the spot and started dealing with the accused while the complainant had remained at a distance concealing himself. The accused had booked a satta for the decoy customer. He was apprehended and various articles, including Rs.20/ which were given to him by decoy customer, were recovered from his possession. On the basis of complaint, present FIR was registered. After Page 2 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was chargesheeted for the offence punishable under Section 12 of Gambling Act.
3. After perusing the record, cognizance was taken by the Court and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, notice for the offence punishable under Section 12 of Gambling Act was served. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 03 witnesses to prove its case against the accused.
5. PW1 Ct. Suresh is the decoy customer. He has deposed that on 07.07.2016, ASI Devender Singh had received secret information that one person was involved in Gambling activity at Ejaj Building. The ASI requested 4 5 passerby to join the raiding party but none of them agreed. They left the spot without disclosing their names and addresses. Due to paucity of time, notice could not be Page 3 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu served to any passerby who refused to join the proceedings. Thereafter, he alognwith IO and secret informer reached at the aforesaid building where at the direction of IO he was directed to play role of bogus customer. At the same time currency note in the denomination of ₹20/ was handed over to him for booking satta with the accused. He was directed by the IO to move his hand over his head after handing over currency notes of ₹20/ for gambling. He reached at the spot and handed over Rs. 20/ to the accused for gambling. The satta was fixed for number 68. The accused told him that if played game at no. 68, he could win ₹1600/ and in case he lost no amount i.e., ₹20/ would be returned to him. He gave the signal after handing over the currency note to the accused. The number of currency note was 28L097161. the IO reached at the spot and apprehended the accused. ₹780/ were recovered from his possession in the denomination of ₹100 x 2, 50 x 10, 10 x 6 and 20 x 1. One receipt with pen was recovered. The said receipt contained writing "61/30" and "68/20". The currency notes i.e., Rs. 760/ were placed in an envelope Page 4 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu while ₹20/ currency note was placed in different envelope. Both the envelopes were sealed with the seal of DS. The seal after use was handed over to him. IO had prepared rukka/ Tehrir and the same was handed over to him for the registration of FIR. The rukka/Tehrir is marked as Mark PW1/A. He went to PS and got the FIR registered. After the registration of FIR, he returned at the spot where HC Mitra Pal was already present to whom the investigation was further entrusted.
6. Ld. APP has put some leading questions to the witness with the permission of the Court. The witness admitted that his personal search was conducted by ASI Devender before he was made decoy customer. The witness proved execution of personal search memo of the decoy customer which is Ex. PW1/B. He also proved the handing over memo of the currency note Rs.20/ to him which is Ex.PW1/C. He also proved the seizure memo of the pen, receipt and currency notes recovered from the accused which is Ex. PW1/D and Ex.PW1/E. He also admitted that the accused was arrested in his presence vide memo Ex. PW1/F and Ex. PW1/G. Page 5 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu
7. PW2 ASI Devender Singh is the complainant.
He has deposed similar to PW1 regarding receiving of secret information, preparation of decoy customer, dealing with the decoy customer, apprehension of the accused, recovery of the case property and preparation of tehrir. He has deposed that he had prepared the tehrir Ex.PW2/A. Ct. Suresh had taken the tehrir to PS. After sometime he returned at the spot alongwith ASI Mitrapal. He handed over the documents to the ASI. The accused was also handed over in his custody. ASI prepared the site plan at his instance. He recorded his statement and he was discharged.
8. The witness identified the case property. The cash amount of Rs.760/ is Ex. P1. The pen, the parchi and currency note of Rs.20/ are Ex. P2.
9. PW3 ASI Mitrarpal is the IO of the case. He has deposed that on 07.07.2016, he had received a copy of FIR of the present case for the investigation. He reached at near Ejaj Building. There he met with ASI Devender. He handed over two sealed envelopes and a seizure memo to him. He had prepared a site plan at the instance of ASI Page 6 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu Devender which is ExPW3/A. He had recorded the discloser statement of the accused. He had recorded the discloser statement in Case Diary. He had arrested the accused vide memo Ex PW1/F. The accused had produced his surety. He was released on bail. He had prepared the challan and filed in the Court.
10. The witnesses were crossexamined. The accused has admitted the documents the registration of FIR no. 143/2016 which is Ex. A1, DD no. 21A which is Ex. A2 and certificate under Section 65B of Indian Evidence Act, which is Ex. A3.
11. Thereafter, the prosecution evidence was closed. Accused was examined under Section 313 Cr. P.C. r/w Section 281 Cr. P.C. The accused denied the incriminating evidence against him. He has stated that he was falsely implicated.
12. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
13. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The statements of police witnesses are consistent with Page 7 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu each other. Hence, the prosecution has proved all the ingredients of the offence punishable under Section 12 of the Act beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
14. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. Provision of Section 100, Cr.P.C. was not complied with. Public witnesses were not joined nor any sufficient explanation is given in this regard. Thus, reasonable doubts have been created on the story of the prosecution. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
15. I have heard the rival submissions and carefully perused the material available on record.
16. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
17. In the present case, the accused has been charged with an offence punishable under section 12 of Page 8 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu the Delhi Public Gambling Act, 1955. It has been alleged against the accused that he was found gambling in the public place by writing satta. PW1 and PW2 have deposed that a secret information was received that the accused was involved in gambling activities at public place. Thereafter, a raiding team was prepared. PW1 was prepared as a decoy customer. He had dealt with the accused. The accused was apprehended while he was dealing with the decoy customer. Thus, there was sufficient time with the police officials to join the public persons in the proceedings. However, perusal of record would show that no public persons had been joined by the complainant or the IO during the entire proceeding. PW2 ASI Devender has stated that he had shared the information with the public persons who were passing through the road. Perusal of the record would show that there is no sufficient explanation given for non joining of any public witness at the time of apprehension of accused. No serious efforts are shown to be made to join the public witnesses. In the case where the public witness are easily available and they are not being joined without any Page 9 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu justified reason, the statement of police witnesses only cannot be relied. I get strength from the case law reported as Anoop Joshi Vs. State, 1992(2) C.C. Cases 314(HC) in which Hon'ble High Court of Delhi has observed as under:
"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 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."(emphasis supplied)
18. Further, in Roop Chand Vs. The State of Haryana 1999(1) C.L.R.69, the Punjab & Haryana High Court has held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The Page 10 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of 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 of 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 join the investigation, the Investigating Page 11 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu of officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police of 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".(emphasis supplied)
19. In the present case, non joining of public witnesses create reasonable doubts on the case of the prosecution.
20. Further, as per the testimony of the prosecution witness PW1 Ct. Suresh, ASI Devender had sealed the case property with the seal of DS and handed over the seal to him. However, there is no handing over memo of the seal to show that seal was so handed over. Thus, the possibility that the case property might have been tampered with cannot be ruled out.
21. In the light of the discussion hereinabove, I am of the opinion that all the abovementioned circumstances are able to create reasonable doubts on the case of the prosecution. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot Page 12 of 13 MM08(Central)/THC/Delhi/23.09.2019 FIR No. 143/2016, PS : Hauz Qazi State Vs Rais Ahmed @ Rahisu be ruled out. The accused is therefore entitled to the benefit of reasonable doubts. The accused is hereby acquitted of the offence punishable under Section 12 of Gambling Act.
22. Case property be confiscated to the State. The items except the currency notes be disposed of as per law. The currency notes be deposited with the District Nazir.
23. The accused has already furnished bond under Section 437A Cr.P.C., with one surety along with photographs and copies of address proof.
Digitally
signed by
DINESH
DINESH KUMAR
KUMAR Date:
2019.09.23
16:54:52
+0530
Pronounced in the open Court on (Dinesh Kumar)
this 23rd day of September 2019. MM08 (Central) Tis Hazari Courts Delhi.
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