Delhi District Court
State vs . Sunny on 6 January, 2023
IN THE COURT OF MS. SHIVLI TALWAR
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
FIR No. 297/2021
PS - Civil Lines
U/s - 12/9/55 Delhi Public Gambling Act
State Vs. Sunny
JUDGMENT
(a) Criminal Case No. 5541/2022
(b) CNR No. DLCT02-009382-2022
(c) Date of 08.08.2021 commission of offence
(d) Name of the HC Ankush Dhama complainant
(e) Name of the Sunny s/o Sh. Ram Snahi r/o H.No. 579, Bhawain accused person(s), Sawain, Agra, UP.
his parentage and residence
(f) Offence(s) Section 12/9/55 Delhi Public Gambling Act complained of or proved
(g) Plea of the accused Pleaded not guilty
(h) Final Order Acquitted
(i) Date of institution 06.04.2022 of case
(j) Date when Not reserved judgment was reserved
(k) Date of judgment 06.01.2023 Brief reasons for the decision of the case: -
1. The genesis of the prosecution story is that on 08.08.2021 at about SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:14:45 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 1 of 14 10:00 PM at DDA Flat, Bulward Road, Tis Hazari, Delhi, within the jurisdiction of PS Civil Lines, the accused was found playing game of gambling with the help of writing pad and pen and Rs.2,800/- were recovered from his possession and thereby accused committed an offence punishable u/s 12/9/55 Delhi Public Gambling Act.
2. On finding a prima facie case to proceed against accused, cognizance of the offence was taken on 13.07.2022. The provisions of Section 207 Cr.P.C. were duly complied with and notice of accusation for offence u/s 12/9/55 Delhi Public Gambling Act was served upon accused on 30.09.2022 to which accused pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined two witnesses: PW1 HC Mangeja Meena and PW2 HC Ankush Dhama (Complainant as well as Investigating Officer).
4. The record transpires that during the course of trial, the accused admitted the present FIR Ex. A1, certificate u/s 65B Indian Evidence Act Ex. A2, endorsement on rukka Ex. A3 and entry no. 191/26/41 in register No. 19 Ex. A4 u/s 294 Cr.P.C. and the examination of formal witnesses qua such documents was accordingly dispensed with.
5. The prosecution evidence was closed on 20.12.2022 and accused was examined u/s 313 r/w 281 Cr.P.C. wherein all incriminating evidence was put to him. Accused submitted that he is innocent and has been falsely implicated in the present case and that the case property was planted upon him. The accused opted not to lead any evidence in his Digitally signed defence. by SHIVLI SHIVLI TALWAR TALWAR Date:
2023.01.06 16:14:56 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 2 of 14
6. Prior to delving into the merits of the present case, it is relevant to discuss the testimonies of the prosecution witnesses.
7. PW1 HC Mangeja Meena deposed that on 18.08.2021, he alongwith HC Ankush Dhama were on emergency duty and at about 10:00 PM, when they reached DD Flat Boulevard Road, after attending call of DD No. 68A, they saw 3-4 persons standing there who started running on seeing the police. On suspicion, they chased them and apprehended the accused who was holding cash of Rs. 50/- and one pad on which "UAE Auto Component Pvt. Ltd" was written and on the last page numbers 73, 77, 50, 10, 10 and 5 were written. In his right hand, he was also holding one pen (pink colour) pursuant to which IO HC Ankush Dhama took his cursory search and during search, cash of Rs.
2,750/- were recovered from the right pocket of his wearing pants. IO prepared the pullanda of recovered cash of Rs. 2,800/-, writing pad and pen and sealed it with the seal of 'AD' and seized the same vide seizure memo Ex. PW1/A. Seal after use was handed over to PW1. Thereafter, IO prepared rukka and got the FIR registered through PW1. Thereafter, IO arrested accused vide arrest memo Ex. PW1/B and conducted his personal search vide memo Ex. PW1/C. The witness correctly identified the accused as well as case property i.e. cash of Rs. 2,800/- Ex. P1 (colly) and writing pad and pen Ex. P2 (colly) during his testimony before the Court.
The witness was duly cross-examined by the defence.
8. PW2 HC Ankush Dhama is the complainant as well as Investigating Officer. He deposed on similar lines as PW1. He further proved on SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:15:06 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 3 of 14 record rukka Ex. PW2/A. The witness correctly identified the accused during his testimony before the Court.
The witness was duly cross-examined by the defence.
9. This is the entire evidence on case record.
10. I have given a considered thought to the rival submissions made by Ld. APP for the State and Ld. LAC for accused keeping in view the material available on the judicial file.
11. Ld. APP for the State has contended that the presence of accused at the spot of incident is established beyond reasonable doubts as both the prosecution witnesses have correctly identified him before the Court. It is further contended that prosecution has established the guilt of accused beyond all reasonable doubts and, therefore, the accused deserves to be convicted for the offence in question.
12. Per contra, Ld. LAC for accused has argued that the accused has been falsely implicated in the present case and the case property has been planted upon him. It has been further argued that no independent public witness was asked to join the investigation despite availability and the only witnesses examined by the prosecution are police officials whose testimonies are not reliable without corroboration by public witnesses. Thus, the prosecution has not been able to prove its case beyond reasonable doubts and the accused is entitled to acquittal.
13. Before proceeding further on merits of this case, let us first discuss the relevant provision of law for which notice of accusation was served SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:15:18 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 4 of 14 upon the accused.
Section 12 of the Delhi Public Gambling Act, 1955 provides 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".
14. In the aforementioned backdrop, the Court shall now proceed to deliberate upon the evidence appearing on record so as to evaluate if the prosecution has proved its case on the requisite yardsticks or not.
15. Before proceeding with the appreciation of evidence, the cardinal principle of criminal jurisprudence is to be borne in mind, that prosecution has to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence. 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 benefits SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:15:28 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 5 of 14 whatsoever from the weakness, if any, in the defence of accused. It is for the prosecution to travel the entire distance from may have to must have and accused is entitled to benefit of reasonable doubts in the prosecution story and any such doubts in the prosecution case entitles the accused to acquittal.
16. It has been argued by Ld. LAC for accused that no public witness was joined by the IO during investigation of the present case and at the time of alleged recovery of the case property, despite their availability.
Reference is made to the testimony of both the prosecution witnesses, who during their cross-examination by Ld. LAC for accused, admitted that the spot was a crowded area and there were several houses and shops situated near the spot. They also admitted that no person from the houses and shops were called to join the investigation.
Ld. LAC for accused submits that the prosecution has only examined police officials whose testimonies are not reliable without corroboration by public witnesses. Ld. LAC has further argued that recovery of case property has been planted upon the accused.
No doubt, it is settled law that the testimony of police witnesses can be relied upon if it inspires confidence of the court but in this case, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation and specifically at the time of alleged search and seizure of case property in compliance of section 100(4) Cr.P.C., despite their availability. The same brings the seizure under a cloud of doubt. Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date:
2023.01.06 16:15:38 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 6 of 14 Reference is made to the judgment of Hon'ble Punjab and Haryana High Court in the case of Roop Chand Vs. State of Haryana 1999 (1) CLR 69 wherein it was observed that, "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 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 he 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''.
Reference is also made to the judgment in the case titled as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC) wherein the Hon'ble SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:15:47 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 7 of 14 High Court of Delhi observed that, "It is repeatedly laid down by this Court that 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 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".
Admittedly, the spot was a crowded area and there were several houses and shops situated near the spot. However, for reasons unexplained by the IO, no person from the houses or shops were asked to join the investigation. 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. It has also not been mentioned as to what action was taken against those persons who refused to join the investigation. Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date:
2023.01.06 16:15:56 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 8 of 14
17. It has been further argued by Ld. LAC for accused that case property has been tampered with as admittedly, no separate handing over or taking over memo of the seal was prepared by the IO. Perusal of testimony of PW1 HC Mangeja Meena reveals that pursuant to seizure of case property, IO sealed the case property with the seal of 'AD' and seal after use was handed over to PW1. Thereafter, after completion of necessary formalities, the case property was deposited in the Malkhana.
It is pertinent to note that admittedly, the seal after use was not handed over to any independent person. It was handed over by the IO to PW1 HC Mangeja Meena only. This Court is of the considered opinion that PW1 himself being a material recovery witness in the present case would always be interested in the success of the case of the prosecution and thus chances of tampering of case property cannot be ruled out.
Reference is made to the judgment of Hon'ble High Court of Delhi in Safiullah vs State (Delhi Administration) 49 (1993) DLT 193 wherein it was held that:
"It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness Public Witness Even the Public Witness does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:16:04 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 9 of 14 out."
Reference is also 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 seal to an independent person is to avoid tampering of the case property."
In the present case, the possibility of tampering of case property cannot be ruled out as it was lying in the same Malkhana where the police official having possession of the seal was posted.
18. It has been further contended by Ld. LAC for accused that the accused has been falsely implicated in the present case and the case property has been planted upon him. He further contends that all documents of the present case were prepared in the police station and not at the spot of alleged incident.
19. It is further pertinent to note that seizure memo Ex. PW1/A bears the number and particulars of the present FIR. As per the rukka Ex. PW2/A and testimonies of prosecution witnesses, the seizure memo of the case property was prepared prior to the registration of FIR. If that be the case, the prosecution has not offered any explanation whatsoever as to how the number and other particulars of the present FIR are mentioned on the seizure memo of the case property.
Reference is made to the judgment of Hon'ble High Court of Delhi in Giri Raj vs State 83 (2000) DLT 201 wherein it was held that, SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:16:13 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 10 of 14 "The number of the FIR (Ex. PW-2/A) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. PW-2/A) had appeared on the top of the said documents, which were allegedly prepared on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW-2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
20. It is alleged by the prosecution that the accused was found playing game of gambling and Rs. 2800/- alongwith writing pad and one pen were recovered from his possession. It has been argued by Ld. APP for the State that the accused used to write down certain numbers/digits in the writing pad and on the basis of those numbers, the gambling used to be done. If that be the case, the writing pad containing some numbers/ digits allegedly recovered from the possession of accused must have been sent by the IO to FSL for comparison with his admitted handwriting. However, admittedly, no specimen of handwriting of accused was taken to match the same with the handwriting contained in the writing pad allegedly recovered from him nor was the writing pad sent to FSL for examination. In a SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:16:21 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 11 of 14 criminal trial, the onus is upon the prosecution to prove its case beyond reasonable doubts and nothing is to be assumed. It cannot be assumed that the writing pad contained the handwriting of accused. This alleged fact was required to be proved by the prosecution specifically by leading positive evidence which could have been an opinion of the handwriting expert in the facts of the present case. Nothing of this sort was done by the IO for the reasons best known to him. The same further creates a gaping hole in the case of prosecution.
21. It is further pertinent to note that if the accused was found gambling at a public place, then there must have been persons who were investing money with the accused. However, the prosecution has not been able to call any of those persons as prosecution witnesses. Both the prosecution witnesses, during their cross-examination by Ld. LAC for accused, deposed that no person was present who was playing gambling with the accused and they could not tell upon which and with whom the accused was allegedly playing gambling. They further deposed that no name / identification mark was written on the currency note to identify whether any gamble was placed on that note. The same is a material void in the case of the prosecution.
22. Moreover, the prosecution has failed to bring any evidence on record as to the modus operandi adopted by the accused for alleged gambling. It has not been proved by the prosecution as to how the recovered writing pad and pen would have been used for gambling. From the mere recovery of writing pad and pen, nothing can be deduced as to factum of alleged gambling. The prosecution ought to have brought on record positive evidences as to how the numbers SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:16:29 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 12 of 14 mentioned in the writing pad could be used for gambling. It is not proved on record as to how the winner would be declared, who would declare the winner and when would the winner be declared. It is also not proved on record whether the winner would be declared by the accused, or by some third person or through any computer software by random numbers. This Court is of the considered opinion that mere recovery of writing pad and pen is not sufficient for proving the charge of gambling against the accused.
23. It also cannot be lost sight of that there is nothing on record to prove that the recovery witnesses offered their own search before conducting the search of accused due to which the possibility of the case property having been planted upon the accused cannot be ruled out.
24. Thus, there are major lacunaes in the case of the prosecution. The aforementioned lacunaes and contradictions surfacing from the testimonies of various prosecution witnesses makes it extremely doubtful that on the fateful day, the accused was found gambling at the alleged time and place. Furthermore, the recovery of case property from the possession of accused has also not been proved by the prosecution beyond reasonable doubts since no independent public witnesses have been joined during the investigation and at the time of alleged recovery of case property, thereby diluting the case of the prosecution.
25. Thus, in light of the discussion made above, this Court is of the firm view that prosecution has failed to establish the charge levelled against the accused beyond shadow of doubt. Thus, the accused SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2023.01.06 16:16:37 +0530 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 13 of 14 cannot be held liable for the offence with which he has been charged. Accordingly, accused namely Sunny is acquitted in the present case for the offence punishable u/s 12/9/55 Delhi Public Gambling Act.
26. The bail bonds, if any, furnished by the accused at the time of commencement of trial stand cancelled. Surety, if any, stands discharged. Documents, if any, shall be returned to its rightful owner as per rules. Endorsement, if any, stands cancelled. Case property, if any, shall be disposed of as per rules after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to the record room after due compliance.
Digitally signed by SHIVLI TALWAR SHIVLI ANNOUNCED IN OPEN COURT TALWAR Date: 2023.01.06 on : 06.01.2023 16:16:45 +0530 (SHIVLI TALWAR) MM-06(C)/THC/Delhi/06.01.2023 FIR No. 297/2021 PS Civil Lines State Vs. Sunny Page No. 14 of 14