Delhi District Court
State vs . Rahul Sukhija on 20 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02, DISTRICT
EAST, KARKARDOOMA COURTS, DELHI
Presided by: Mr. Vinod Joshi, DJS
State Vs. Rahul Sukhija
FIR No. 719/2014
PS. Geeta Colony
U/s. 3/4/9/55 Gambling Act
JUDGMENT
1) CIS Number of the case : 12492/2016
2) The date of commission of offence : 11.10.2014
3) The name of the complainant : HC Sunil Kumar,
No. 188/East
4) The name & parentage of accused : Rahul Sukhija,
S/o Sh. Suresh Sukhija,
R/o House no. 290 B,
Block-13, Geeta Colony,
Delhi.
5) Offence involved : U/s. 3/4/9/55 Gambling Act
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 20.01.2023
Date of Institution : 22.07.2015
Judgment reserved on : 19.01.2023
Judgment announced on : 20.01.2023
BRIEF STATEMENT OF REASONS FOR DECISION:
01. The accused has been sent to face trial with the allegations that on 11.10.2014, at about 03:15 PM, at Ground Floor of House No. 13/290B, Geeta Colony, Delhi, within the jurisdiction of PS Geeta Colony, accused was found playing Satta/betting in a house or he has occupied or having the use of house as gaming house and police seized the articles and documents vide seizure memo mark X, which were being used for the purpose of betting/satta and thus the FIR No. 719/2014 State Vs. Rahul Sukhija 1 of 8 accused had committed offences punishable under Section 3/4/9/55 of Delhi Public Gambling Act.
02. Upon completion of the investigation, chargesheet under section 173 Cr.PC was filed on behalf of the IO and the accused was consequently summoned. A formal notice for the offence punishable under Section 3/4/9/55 Delhi Public Gambling Act was served upon the accused on 07.04.2016, to which he pleaded not guilty and claimed trial.
03. In order to prove its allegations against the accused, the prosecution has got examined four witnesses.
04. PW-1 HC Sant Kumar deposed that he was posted at PS Geeta Colony as Constable and on that day, at about 02:00 PM, one secret informer came to PS and met ASI Rajender that one person namely Rahul was playing satta on Cricket Match between India versus West Indies at House No. 13/290B, Geeta Colony, Delhi. Thereafter, ASI Rajender intimated the information to SHO and he along with ASI Rajendeer and HC Subhash left the PS vide DD no. 19A. He further deposed that Ct. Mahender was also accompanied them. They verified the said information at the spot and after satisfying with the information, a letter was sent to DCP through Ct. Mahender. At about 03:00 PM, Ct. Mahender returned to the spot after getting permission of DCP. 4-5 public persons were asked to join the investigation but no body turned up and left the place without disclosing their names and addresses. He further deposed that they all reached at House No. 13/290B, Geeta Colony, Delhi and found the door of the house opened. They all entered into the house and seen that accused was talking on mobile phone make Intex and he was also having another mobile phone make HTC of which speaker was turned down and sound of making satta was coming. The accused was writing something in a black diary. They apprehended the said person and seized the case property vide memo Ex. PW1/A. The case property was kept in a pullinda and sealed it with the seal of GC-08, PS Geeta Colony, Delhi. He further deposed that the seal after use was handed over to HC Subhash. Thereafter, Teharir/Rukka was prepared and FIR was got registered through Ct. Mahender. He deposed that FIR No. 719/2014 State Vs. Rahul Sukhija 2 of 8 further investigation was marked to HC Sunil who also reached the spot and all the proceedings and the accused were handed over to him. HC Sunil arrested the accused. This witness has correctly identified the accused and the case property Ex. P-1 (colly). This witness has been cross-examined on behalf of accused.
05. PW-2 Retd. SI Rajender Singh deposed that on 11.10.2014, he was posted at PS Geeta Colony as ASI. On that day, he was present in the PS and one secret informer came to him at about 01:30 PM and informed that one person namely Rahul is betting money on cricket match of India vs. Australia at his House i.e. 13/290B, Geeta Colony, Delhi and if raided, he might be apprehended. He deposed that he recorded the said information vide DD no. 19A in DD register and further intimated this information to SHO concerned who had directed him to verify the said information. After verifying the said information, he was instructed by SHO to proceed further and thereafter, at about 02:00 PM, he prepared a raiding team consisting of HC Subhash, Ct. Sant Kumar and Ct. Mahender and departed for the spot vide DD no. 20A. He deposed that he handed over an application under Section 5 Gambling Act to Ct. Mahender and sent him to DCP office for obtaining permission. He deposed that he along with HC Subhash and Ct. Sant Kumar reached at Ramesh Dhaba, 13 Block Geeta Colony, Delhi and asked 4-5 public persons to join the investigation, but none agreed and left the spot without disclosing their names and identities. He deposed that at about 03:00 PM, Ct. Mahender returned to the spot along with said permission and handed over to him. He briefed the raiding party and conducted raid at Ground Floor of House No. 13/290B, Geeta Colony, Delhi and main door of the said floor was already opened. They entered into the room and found that accused was carrying a mobile phone in his hand and one phone was put on the table. The mobile phone on the table was connected to someone and it was put on speaker. One diary was also put on the table and the accused was mentioning the bets in the same. He further deposed that he collected the mobile phones and diary and seized them vide memo Ex. PW1/A. The said pullinda was sealed with the seal of GC-08 and seal was handed over to HC Subhash after use. He prepared rukka Ex. PW2/A and handed over the same to Ct. Mahender for getting the FIR registered at PS. After FIR No. 719/2014 State Vs. Rahul Sukhija 3 of 8 the registration of FIR, HC Sunil arrived at the spot as the investigation of the case was handed over to him. He deposed that he handed over the custody of accused, relevant documents and case property to HC Sunil who prepared the site plan at his instance. After sometime, he was relieved from the spot. This witness has correctly identified the accused and the case property Ex. P1 (colly). This witness has also been cross-examined on behalf of accused.
06. PW-3 HC Mahender has been examined in chief and he deposed the facts that are similar to the testimony of PW1 HC Sant Kumar and he was duly cross- examined by Ld. Counsel for accused.
07. PW-4 ASI Sunil Kumar is the second IO in this case. He deposed about the subsequent investigation conducted by him in this case. He deposed about preparation of site plan Ex. PW2/A, about arrest and personal search of accused vide memos Ex. PW3/A and Ex. PW3/B respectively. This witness has correctly identified the accused and this witness was cross-examined by Ld. Counsel for accused.
08. Statement of accused under Section 294 Cr.P.C was recorded whereby he admitted the factum of registration of FIR No. 719/2014, Ex. A-1 and Sanction under Section 5 of the Delhi Public Gambling Act Ex. A-2 while denying the contents of the same.
09. After prosecution evidence was concluded the statements of accused persons were U/s 313 Cr.P.C read with 281 Cr.P.C were recorded wherein he refuted the allegations levelled against him in toto. Accused chose not to lead any defence evidence in his favour.
10. I have heard the rival submissions and carefully perused the record.
APPRECIATION OF EVIDENCE :
11. The relevant extract of the cross-examination of witnesses is as FIR No. 719/2014 State Vs. Rahul Sukhija 4 of 8 under:
a) PW-1 HC Sant Kumar has deposed during his cross examination that one or two persons were also present in outside room of the house of the accused.
He deposed that no notice was issued to the public persons who had refused to join the investigation.
b) PW-2 Retd. SI Rajender Singh has deposed during his cross examination that he did not ask any passersby/public persons or occupants of adjacent residential buildings to join the investigation at the spot. However, he had asked the public persons to join the investigation at Ramesh Dhaba. No notice was served upon by the IO to the passersby who had refused to join the investigation at Ramesh Dhaba.
c) PW-3, HC Mahender has also deposed during his cross-examination that some of the public persons were passing through the spot and ASI Rajender had asked them to join the investigation/raiding team, however, they refused to join the same. He further deposed that he did not record the name and addresses of the public persons, who were asked/refused to join the investigation. He further deposed that no public person was called to sign upon or be a witness to the seizure memo prepared in respect of the mobile phones and diary.
d) PW-4, ASI Sunil Kumar has deposed during cross-examination that he did not join any public person during investigation of this case.
12. In case titled Roop Chand vs. State of Haryana, 1999 (1) C.R.L. 69 , the Hon'ble High Court of Punjab & Haryana held as following:
"...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 FIR No. 719/2014 State Vs. Rahul Sukhija 5 of 8 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 the 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..."
13. Hon'ble Supreme Court in a judgment reported as Hemraj vs State of Haryana [AIR 2005 SC 2110] observed as follows:
"...the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case..."
14. Burden lies on the prosecution to establish that the association of any person as Public witness was not possible in the facts and circumstances of this case. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to seen with suspicion.
15. There is nothing in the testimony of any of the witnesses whether any sincere efforts were made by them to join the independent witness. The only explanation accorded by the IO is that they refused to join the proceedings. Such FIR No. 719/2014 State Vs. Rahul Sukhija 6 of 8 an ordinary reply/explanation of the IO does not support the case of prosecution in any manner. The IO could have very well taken down the names of the public persons, who were asked to join the raid and in case of such refusal to render assistance, could have proceeded against them as per Section 187 of IPC.
16. Further, from the record, it appears that after apprehension of the accused and before taking the formal/casual search of the accused, police official(s) had not offered their own search to the accused before taking his search. 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. This rule is meant to avoid the possibility of implanting the object which was brought out by the search. The police officials have to offer themselves for personal search by the accused before conducting the personal search of the accused. The court hereby concludes that the possibility of implanting the allegedly recovered material is not ruled out in the present case.
17. In the instant case in hand, it has been stated by PW-2 that he handed over the rukka to PW-3 for registration of FIR, after the seizure memo Ex. PW1/A was prepared at the spot, however, perusal of the seizure memo reflects that the FIR no. 719/2014 is mentioned upon the seizure memo, which makes the alleged recovery doubtful.
18. In the present case during examination-in-chief, PW1 HC Sant Kumar deposed that accused was playing satta on Cricket Match between India Versus West Indies while PW2 Retd. SI Rajender Singh deposed that accused was betting money on Cricket Match between India Versus Australia. The testimonies of PW1 and PW2 are contradictory and makes the said raid doubtful. It also casts doubts FIR No. 719/2014 State Vs. Rahul Sukhija 7 of 8 upon the chain of events put forward by the prosecution.
19. It is noticed that nothing has brought on record as to the fact that the accused Rahul Sukhija was owning or keeping or having charge of the above- said house. The prosecution has failed to bring any evidence in this respect so as to connect the accused Rahul Sukhija with the place of alleged recovery i.e. House No. 13/110, Geeta Colony, Delhi.
20. In view of the above discussion, the court is of the view that the prosecution has failed to prove its case beyond reasonable doubt and the accused deserves the benefit of doubt. Accordingly, the accused Rahul Sukhija is hereby acquitted for the charged offence punishable u/s 3/4/9/55 Gambling Act and further all the accused persons are acquitted in respect of the charged offence punishable u/s. 3/4/9/55 Gambling Act.
21. Ordered accordingly.
Announced in the Open Court
on 20.01.2023 (VINOD JOSHI)
MM-02(E)/KKD COURTS/DELHI
FIR No. 719/2014 State Vs. Rahul Sukhija 8 of 8