Delhi District Court
State vs Sunil Kumar on 23 December, 2024
CNR NO.DLWT02-017165-2017
IN THE COURT OF MS. SAMIKSHA GUPTA,
CHIEF JUDICIAL MAGISTRATE, WEST DISTRICT, TIS HAZARI
COURTS, NEW DELHI
Date of Institution : 19.12.2017
Date of Reserving Judgment : 20.12.2024
Date of Judgment : 23.12.2024
In the matter of :
State Vs. Sunil Kumar and Anr
FIR No. 336/2017
PS : Kirti Nagar
U/s: 12/9/55 Gambling Act
1. Registration. No. of Case : 7880/2017
2. CNR No. of Case : DLWT02-017165-2017
3. Name of complainant : ASI Narender Kumar
4. Name of accused : Sunil Kumar
S/o Sh. Harihar Prasad
R/o Jhuggi No. 710 C-5/35,
Industrial Area, Kirti Nagar, New
Delhi
5. Offence charged under : Section 12/9/55 Gambling Act
Digitally signed by
Samiksha Samiksha Gupta
Gupta Date: 2024.12.23
14:54:29 +0530
CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 1 of 13
CNR NO.DLWT02-017165-2017
6. Plea of accused : Not guilty
7. Final Order : 23.12.2024
State represented by : Dr. Rajesh, Ld. APP for State.
Accused represented by : Sh. R.K. Mishra, Ld. Counsel for accused.
JUDGMENT
1. It is the case of prosecution that on 26.09.2017 at about 8.00 pm behind Jhuggi No. 5/35, Industrial Area near Railway Line, Kirti Nagar, Delhi, accused persons namely Sunil Kumar and Dalip (proceedings since abated) were found playing satta for the purpose of gambling. Thus, prosecution has set up a case under Section 12 of The Delhi Public Gambling Act, 1955.
2. On the basis of investigation carried out by police, charge sheet was filed in Court and copy of the same was supplied to accused persons.
3. On the basis of charge sheet, notice for committing offence punishable under Section 12 The Delhi Public Gambling Digitally signed by Samiksha Samiksha Gupta Gupta Date: 2024.12.23 14:55:06 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 2 of 13 CNR NO.DLWT02-017165-2017 Act,1955 was served upon accused persons to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined three witnesses, who are as under:
Sr. No. Name Nature of Evidence 1. PW-1/ Ct. Sandeep Along with IO 2. PW-2/ASI Sunil Decoy witness 3. PW-3/ASI Narender IO
5. Prosecution has relied upon the following documents:
S.No Exhibits Documents
1. Ex.PW-1/A Seizure memo of currency notes.
2. Ex.PW-1/B Site plan
3. Ex.PW-1/C Arrest memo of accused Sunil
4. Ex.PW-1/D Arrest Memo of accused Dalip
5. Ex. PW-1/E Personal Search memo of accused Sunil.
6. Ex. PW-1/F Personal search memo of accused Dalip
7. Ex. P-1 Mat
8. Ex. P-2 Paper chits
9. Ex. P-3 Currency notes
Samiksha Digitally signed by
Samiksha Gupta
Gupta Date: 2024.12.23
14:55:21 +0530
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10. Ex. PW-2/A Seizure memo of one currency note duly signed
bearing No. 2KCJ97476 and one slip having mentioned no. '2'
11. Ex. PW-3/A Rukka
12. Ex.P4 DD No.64A
6. Thereafter, PE was closed and statement of accused Sunil was recorded under Section 313 Cr.PC, wherein he stated that he was falsely implicated in the present case. He opted to lead defence evidence and examined himself as DW-1 and Dinesh Kumar as DW-2.
7. Arguments heard. Record perused.
8. The case of prosecution as set up by its witnesses is discussed hereunder:-
(i) PW-1 Ct. Sandeep has deposed that he was on picket duty with ASI Narender on 26.09.2017. One Secret informer informed them about few people, who were gambling at 5/35, Industrial Area behind Railway Line Jhuggis. ASI Narender informed HC Sunil, who came to the spot and went as a decoy customer. This witness and ASI Narender Kumar hid near the spot. HC Sunil came to the spot where he found two people noting satta numbers. As decided, he signaled to ASI Digitally signed by Samiksha Samiksha Gupta Gupta Date: 2024.12.23 14:55:30 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 4 of 13 CNR NO.DLWT02-017165-2017 Narender and this witness, who came to the spot and apprehended two people present there. Their names were revealed as Sunil and Dilip.
IO got recovered currency notes, one paper chit and number note. IO ASI Narender seized the currency notes in a pullanda and sealed it with the seal of NK. IO prepared t ehrir and FIR was got registered through this witness. IO conducted further investigation. He correctly identified the case property and the accused present in Court.
During cross-examination, he stated that at the time of apprehension of accused, public persons were asked to join the investigation but they refused. Currency recovered from accused persons were old currency notes, which were in circulation before demonetization. He denied the suggestion that accused was falsely implicated.
(ii) PW-2 ASI Sunil deposed that he was on picket duty on 26.09.2017 at Hindustan Vegetables, Rama Road. He was called by ASI Narender in civil clothes at about 7.00 pm after which he went and found Ct. Sandeep and one secret informer there. Public persons were asked by the IO to join the investigation but they refused to join the investigation. At about 7.30 pm, he went to the spot where accused Digitally signed by Samiksha Samiksha Gupta Gupta Date: 2024.12.23 14:55:39 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 5 of 13 CNR NO.DLWT02-017165-2017 persons were gambling and told them that he also wanted to gamble. Accused persons had one plastic sheet in which numbers from 1 to 10 were written and they also had playing cards and one more sheet. One other boy had also come there for gambling. This witness then signaled to the raiding party who came and apprehended the accused persons. IO seized the case property and sealed it with the seal of NK. IO conducted further investigation. He correctly identified accused Sunil present in Court.
During cross-examination, he could not recall the departure DD number. Public persons refused to join the investigation. FIR number was not known to him at the time of preparing seizure memo and no alteration was done on the seizure memo after having known the FIR number. No seal handing and taking over memos were prepared. Seal after use was not handed over to public person. No videography and photography was done at the time of raid. He denied the suggestion that accused persons have been falsely implicated.
(iii) PW-3 ASI Narender has deposed that he was on picket duty with Ct. Sandeep on 26.09.2017. One Secret informer informed them about few people, who were gambling at 5/35, Industrial Area behind Railway Line Jhuggis. This witness informed Samiksha Digitally signed by Samiksha Gupta Gupta Date: 2024.12.23 14:55:49 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 6 of 13 CNR NO.DLWT02-017165-2017 HC Sunil, who came to the spot and went as a decoy customer. Ct. Sandeep and this witness hid near the spot. HC Sunil came to the spot where he found two people noting satta numbers. As decided, he signaled to this witness and Ct. Sandeep, who came to the spot and apprehended two people present there. Their names were revealed as Sunil and Dilip. This witness got recovered currency notes, one paper chit and number note. This witness also seized the currency notes in a pullanda and sealed it with the seal of NK. He prepared rukka and FIR was got registered through Ct. Sandeep. Further investigation was conducted. He correctly identified the accused present in Court.
During cross-examination, he stated that accused persons were gambling on railway track. He could not recall the departure DD entry. Public persons were asked to join the investigation but they refused to join the same. FIR number was not known to him at the time of preparing seizure memo and no alteration was done on the seizure memo after having known the FIR number. No seal handing and taking over memos were prepared. Seal after use was not handed over to public person. No videography and photography was done at the time of raid. He denied the suggestion that accused persons have been falsely implicated.
Digitally signed Samiksha by Samiksha Gupta Gupta Date: 2024.12.23 14:55:57 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 7 of 13 CNR NO.DLWT02-017165-2017 Analysis & Findings:
9. Section 12 of the Delhi Public Gambling Act, 1955 reads as under:
"12. Gaming and setting birds and animals to fight in public streets. - A police officer may apprehend without warrant any person found gaming in any public street, place or thoroughfare situated within the Union Territory of Delhi, or any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the said State, or any person there present aiding and abetting such public fighting of birds and animals, such person when apprehended shall be brought without delay before a Magistrate and shall be liable to imprisonment for a term which may extend to three months and shall also be liable to a fine which may extend to one thousand rupees, and such police officer may seize all instruments of gaming found in such public street, place or thoroughfare or on the person of those whom he shall so arrest, and the Magistrate may on conviction of the offender order such instruments to be forthwith destroyed".
10. Needless to state, the well established principle of Digitally signed by Samiksha Samiksha Gupta Gupta Date: 2024.12.23 14:56:13 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 8 of 13 CNR NO.DLWT02-017165-2017 criminal jurisprudence is that prosecution has to prove its case beyond reasonable doubt. The prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the loopholes in the defence of accused or the material brought by him on record.
11. In the present case, the prosecution has not been able to prove its case against the accused due to the following reasons:
(i) No public witness was joined by IO during investigation of the present case. Similarly, no public witness has been joined at the time of recovery of the case property, despite their availability.
During his cross-examination, both IO and recovery witness have admitted that the place of incident was a public place near railway tracks. They have further admitted that during investigation, public persons were passing by the spot of incident. In such a scenario, it was for the witness to clarify as to what precluded him in joining such public persons in investigation. IO and recovery witness have stated that public witnesses were asked to join the investigation but they refused and also did not disclose their names or addresses.
Samiksha Digitally signed by
Samiksha Gupta
Gupta Date: 2024.12.23
14:56:29 +0530
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IO as well as recovery witness has not clarified if he had recorded the name of persons who had refused to join the investigation and if IO had initiated any action against them.
It is settled law that the testimony of police witnesses can be relied upon if it inspires confidence of the court. However, in this case, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation. In the present case, only police officials have been cited as prosecution witnesses whose testimonies are not reliable without corroboration by public witnesses in the facts of the present case.
(ii) During the search and recovery from accused, IO has not followed the procedure prescribed by law under Section 100 (4) CrPC.
Reference is made to the judgment of Hon'ble Punjab and Haryana High Court in Roop Chand Vs. State of Haryana 1999 (1) CLR 69 wherein it was observed that, "It is well settled principle of 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."
Digitally signed Samiksha by Samiksha Gupta Gupta Date: 2024.12.23 14:56:37 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 10 of 13 CNR NO.DLWT02-017165-2017
In the present case also admittedly the independent witnesses were available at the time of search but they refused to be witnesses to such search of accused. 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 who they had contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. The failure to explain the same suggests that such explanation is an after thought and is not worthy of credence.
Admittedly, the place of alleged incident was a public place. This Court is of the considered opinion that in order to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, some independent person should have been associated by the IO during investigation. However, no sincere efforts were made by the IO to persuade any public witness to join the investigation and no written notice was served upon any of the public persons. Admittedly, no action was also taken against those persons who refused to join the investigation for reasons best known to the IO.
(iii) Record further shows that no seal handing over
Digitally signed by
Samiksha Samiksha Gupta
Gupta Date: 2024.12.23
14:56:47 +0530
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memo was prepared by IO ASI Narender and it is also not clear from his testimony as to how safe custody of seal was maintained and to whom it was handed over after use. Perusal of testimonies of prosecution witnesses reveals that pursuant to seizure of case property from the accused, IO sealed the case property and the same was deposited in malkhana.
Admittedly, the seal after use was not handed over to any independent person. This Court is of the considered opinion that IO himself being a material recovery witness would always be interested in the success of the case of prosecution and thus possibility that the case property was tampered with cannot be ruled out. Further, while case property was produced in court during evidence, it was brought in an unsealed pullanda, thereby casting doubt on its safe custody. Reference is made to the judgment of Hon'ble Punjab and Haryana High Court in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, wherein it was held that, "The very purpose of giving the seal to an independent person is to avoid tampering of the case property." Thus, in the present case, the possibility of tampering of case property cannot be ruled out.
It is also pertinent to state that the prosecution has failed to prove as to whom the seal of 'NK' belonged. The prosecution Digitally signed Samiksha by Samiksha Gupta Gupta Date: 2024.12.23 14:57:12 +0530 CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 12 of 13 CNR NO.DLWT02-017165-2017 witnesses have not clarified on this material aspect.
(iv) It has also come on record that one other person was also present at the spot and was gambling with accused. However, no further details qua the said person have been put forth by prosecution. He would have been the most material witness against the accused and to explain the factum of gambling. However, his particulars are conspicuous by their absence in chargesheet.
12. In view of the material unexplained lacunae in the case of prosecution, it is clear that prosecution has not been able to establish the guilt of accused beyond reasonable doubt. Accordingly, accused Sunil Kumar is acquitted of offence under Section 12, The Delhi Public Gambling Act, 1955.
Pronounced in open Court Digitally signed
on 23rd of December, 2024 by Samiksha
Samiksha Gupta
Gupta Date:
2024.12.23
14:57:19 +0530
(SAMIKSHA GUPTA)
Chief Judicial Magistrate, West District Tis Hazari Courts: Delhi CC No.7880/2017 PS - Kirti Nagar U/s 12/9/55 Gambling Act Page- 13 of 13