Delhi District Court
Criminal Case/228/2004 on 17 September, 2013
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
CHIEF METROPOLITAN MAGISTRATE (SOUTH),
SAKET COURTS COMPLEX, NEW DELHI
State v. Kamal Kumar and Another
PS Malviya Nagar
FIR No. 228/04
U/S. 3,4 of The D.P.G Act, 1955.
JUDGMENT
a) Serial number of the case : 02406R0987462004
b) Date of commission of offence : 21.03.2004
c) Name of the complainant, if any : SI Sudhir Kumar Crime Branch, R.K. Puram, Delhi.
d) Name & address of accused : 1. Kamal Kumar S/o late Shri Hasa Nand R/o B10, 1st Floor, Shivalik, Malviya Nagar, Delhi
2. Pawan Kumar S/o late Shri Mohan Singh Batra R/o E8/10, Malviya Nagar, Delhi.
e) The offence complained off : U/S. 3, 4 of The D.P.G. Act
FIR No. 228/04 State v. Kamal Kumar and Another 1 of 10
f) The plea of accused : Pleaded not guilty.
g) Final order : Acquitted
h) Date for which order was
reserved for : 03.09.2013
i) The date of such order : 17.09.2013
BRIEF STATEMENT OF REASONS FOR THE DECISION:
1. On 21.03.2004 SI Sudhir Kumar in the office of Anti Extortion Cell got secret information regarding satta on cricket match being played between India and Pakistan at B10, First Floor, Shivalik, Malviya Nagar (hereinafter referred to as 'premises in question'). He shared the information with senior officers and recorded the information in Roznamcha vide DD No. 5 dated 21.03.2004. He is stated to have taken permission from the senior officers U/S 5 of The Gambling Act for raiding the premises in question. Thereafter, he prepared a raiding party consisting of himself, Inspector Ran Singh, PW3 Ct. Rajbir, PW4 Ct. Satpal, Ct. Lalit and SI Surender Gulia. At about 6.00 PM, the raiding party reached near the premises in question. PW2 SI Sudhir Kumar directed SI Rajbir to become a decoy customer and gave him a note of Rs. FIR No. 228/04 State v. Kamal Kumar and Another 2 of 10 500/ denomination signed by him and appointed Ct. Satpal, a shadow witness. He further directed SI Satbir to struck a deal and the shadow witness to signal. On receiving the signal, he raided the premises in question where he was told by PW3 that he had fixed the deal with one person named Kamal. He had also taken Rs. 500/ from him. Accused Kamal had passed Rs. 500/ note to another accused Pawan Kumar sitting next to him who also gave him the satta parchi.
2. On the aforesaid allegations, PW2 prepared rukka Ex.PW2/F and got the FIR registered through PW3 HC Rajbir Singh. Investigation in the case commenced. From the premises in question, one mobile phone, two pens, Satta Parchi, four landline phones alongwith one TV were seized vide seizure memos Ex.PW2/A to Ex.PW2/D respectively. Rs. 3,260/ seized from the possession of accused Kamal including the currency note paid to him by the decoy customer was seized vide seizure memo Ex.PW2/E.
3. On conclusion of investigation, the IO of the case filed charge sheet in the Court. Vide order dated 17.08.2004, learned predecessor of the Court took cognizance of the offences involved in the case. FIR No. 228/04 State v. Kamal Kumar and Another 3 of 10
4. The accused persons were summoned to face trial in the case. On their appearance in the Court, they were supplied with the copy of charge sheet and other documents in compliance of Section 207 Cr.P.C.
5. To a charge U/S 3 and 4 of The Delhi Public Gambling Act, 1955, both the accused pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined four witnesses in all. They are as under: PW1 HC Anil Kumar, Duty Officer. He registered the FIR in the case, which is Ex.PW1/B. He put endorsement on rukka vide Ex.PW1/A. PW2 SI Sudhir Kumar, PW3 HC Rajbir Singh and PW4 HC Satpal are the members of the raiding party. PW3 is the decoy customer who went to the premises in question to struck the deal with the alleged accused persons. PW4 is a shadow witness. PW5 Inspector Suresh Kumar is the IO of the case who in the course of investigation of the case, prepared the site plan Ex.PW5/A. He arrested both the accused vide memo Ex.PW3/A and Ex.PW3/B and conducted their personal search vide memos Ex.PW3/C and Ex.PW3/D respectively.
7. Examined U/S 313 Cr.P.C, both the accused claimed innocence. Accused Pawan Kumar stated that he was called from his house by police and falsely implicated in the case being known to the other accused. On FIR No. 228/04 State v. Kamal Kumar and Another 4 of 10 the other hand, accused Kamal Kumar stated that he was taken by the police from his house for the purpose of interrogation and thereafter falsely implicated in the case.
8. I have heard and considered the submissions advanced by learned APP for the State and learned for accused persons and perused the record of the case.
9. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. It is also a settled proposition that burden of proof of the version of the prosecution case in a criminal trial throughout the course of the trial rests entirely and entirely on the prosecution and never shifts to the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal. FIR No. 228/04 State v. Kamal Kumar and Another 5 of 10
10. From perusal of record, it is revealed that after the apprehension of the accused persons and before taking their formal/casual search, police official(s) had not offered their own search to them. 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. In the case at hand, there is material contradiction in the testimony of PW2 SI Sudhir Kumar and PW3 HC Rajbir Singh who both are the members of the raiding party. PW2 in his cross examination stated that none of the raiding party members offered their search to the accused persons before conducting their personal search. On the other hand, PW3 stated that they all had offered their search to the accused persons before taking their search. In the face of material contradiction between two members of raiding party, it is very difficult to believe that police officials had in fact offered their search to the accused persons FIR No. 228/04 State v. Kamal Kumar and Another 6 of 10 before taking their search. Thus, one of the necessary formalities required for searching of a person has not been followed in this case.
11. As per the Punjab Police Rules, entry is essentially required to be made as regards the hour of arrival and departure of police personnel on duty. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the entry of 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 made immediately. However in the present case, the arrival and departure entry of police from the place of duty to the place of spot has not been proved on record. Non proving of the DD entry of arrival and departure from the place of duty to the place of incident creates a doubt about the case of the prosecution.
12. As per Section 5 of The Delhi Public Gambling Act, 1955, no officer below the rank of District Magistrate or an officer having full powers of a Magistrate of 1st class or Superintendent of Police has power to enter and search the premises. The aforesaid officers may enter or by their warrant authorize any officer of police not below the rank of Sub Inspector to enter in any house, room, tent, enclosure, space, vehicle, FIR No. 228/04 State v. Kamal Kumar and Another 7 of 10 vessel or place used as a common gaming house. The officer so authorized may search all parts of the house, room, tent, enclosure, space, vehicle, vessel or place used and seize the instruments of gaming found upon such search and take possession of the same. In the case in hand, the premises in question has been raided twice, firstly at around 6.00 PM and lastly at about 10.20 PM. PW2 SI Sudhir Kumar in his cross examination has admitted that he took permission from DCP in between 7 PM to 8.00 PM to raid the premises. Thus, it is clear that the police officials were not having any authority/sanction from their senior officers at the first time when the premises in question was raided. The officer concerned who gave the permission for raiding the premises has not been examined to prove that permission for entering in the premises in question and making search of the same was in fact given. Thus, the raid conducted by SI Sudhir Kumar alongwith his team without having valid permission from senior officers is illegal.
13. No public persons were joined in the raid of the premises in question nor they were joined in the police proceedings. First raid at the premises in question was conducted at around 6.00 PM. Second raid was allegedly made at around 10.20 PM. PW5 Inspector Suresh Kumar, IO of FIR No. 228/04 State v. Kamal Kumar and Another 8 of 10 the case in his cross examination has stated that he remained at the spot for about 33½ hours. PW2 stated that he stayed at the spot for about 56 hours. He could not tell as to whether any customer or person came to the premises or not during the time of their stay. After the first raid atleast at the time of seizure of the gaming instruments, the public persons ought to have been joined in the investigation, which has not been done by the investigating agency without any cogent and sufficient reason. This aspect also casts doubt on the prosecution story.
14. The case property was not produced in the Court in proper sealed condition. The sealed pulanda containing the case property, which was produced in the Court was in broken condition. The television make Videocon was produced in unsealed condition. PW2 admitted in his cross examination that sealed pulanda which was containing the match box and the Parchi lying therein could have been taken out without breaking the seal. None of the police officials checked as to whether the telephone as well as the mobile were in working condition or not.
15. For the foregoing reasons, this court is of the considered view that prosecution has failed to bring home the guilt against the accused persons and failed to prove its case against them beyond all shadow of FIR No. 228/04 State v. Kamal Kumar and Another 9 of 10 reasonable doubt. Hence, benefit of doubt is given to accused persons. Consequently, both the accused are acquitted for the offences with which they have been charged. Bail bond of both the accused is hereby extended for a period of six months in view of Section 437A Cr.P.C. File be consigned to Record Room.
Announced in the open Court today i.e. 17.09.2013 (RAJ KUMAR TRIPATHI) Chief Metropolitan Magistrate South, New Delhi/ 17.09.2013 FIR No. 228/04 State v. Kamal Kumar and Another 10 of 10