Delhi District Court
State vs . Nitin Joshi on 18 September, 2019
1
IN THE COURT OF MS. NEETI SURI MISHRA: METROPOLITAN MAGISTRATE02
(CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Nitin Joshi
FIR No. 216/18
U/s: 12/ 9 / 55 Gambling Act
P.S. Timar Pur
CNR no. DLCT02
J U D G M E N T
Unique Identification No. : 6913/19
Date of Institution : 06.05.2019
Date on which case reserved for
judgment : 18.09.2019
Date of judgment : 18.09.2019
Name of the complainant : SI Lalit Chauhan
Date of the commission of
offence : 09.10.2018
Name of accused : Nitin Joshi, S/o Sh. Jitender Mohan
Joshi, R/o. H. NO. 665, Multy Storey,
TupeI, Timarpur, Delhi54.
Offence complained of : U/s 12 / 9 / 55 Gambling Act.
Offence charged of : U/s 12 of Delhi Public Gambling Act.
Plea of the accused : Pleaded not guilty.
Final order : Acquittal
FIR No .216/18, State vs. Nitin Joshi
2
1. The brief facts of the case as per prosecution are that on 09.10.2018, at about 6.45 pm, at Dairy no.3 within the jurisdiction of PS. Timarpur, the accused Nitin Joshi was found gambling/playing satta with one more person(who could not be arrested during investigation) and therefore, it is alleged that he committed offence punishable u/s 12 of the Delhi Public Gambling Act, 1955.
2. Prosecution's case is that the first IO SI Lalit Chauhan alongwith Ct. Vikesh Kumar were on patrolling duty when on receiving secret information about activity of gambling going on near Dairy no.3, they arrived at the spot and constituted a raiding party and apprehended the accused, but the accomplice managed to flee from the spot. It is alleged that rukka was prepared by the IO and sent to the police station for registration of FIR. On the basis of rukka, FIR in the present case was registered. Investigation as per the FIR was thereafter conducted by the police officials.
3. On conclusion of the investigation, chargesheet was filed in terms of Section 173(2) Cr.P.C. for the offences under Section 12 of the Delhi Public Gambling Act, 1955. The court took cognizance of the offences, summoned the accused and on his appearance, copy of the challan was supplied to the accused in compliance with the provision under Section 207 Cr.P.C.
4. On the basis of the contents of the chargesheet and after hearing both the parties, notice u/s 251 Cr.P.C. was served upon the accused for the commission of offences under Section 12 of the Delhi Public Gambling Act, 1955. The accused did not plead guilty and claimed to be tried.
5. To establish the guilt of the accused, the prosecution examined a total of four (4) witnesses. The record of their testimonies is as under:
FIR No .216/18, State vs. Nitin Joshi 3 PW1 HC Trilok Chand deposed that on 09.10.2018, he was posted as HC and worked as duty officer from 4 pm to 12 midnight and on that day, he received rukka at about 10.50 pm, from Ct. Vikesh sent by IO SI Lalit. He deposed that on the basis of rukka, he registered the FIR proved as EX.PW1/A and made endorsement on rukka proved as EX.PW1/B. Witness also proved the certificate u/s 65 B Indian Evidence Act as EX.PW1/C. PW2 Ct. Vikesh Kumar deposed that on 09.10.2018, he was posted as constable at PS. Timarpur when he alongwith IO SI Lalit was performing patrolling duty near dairy no.4. He deposed that at about 8 pm, one secret informer gave information to the IO regarding two boys who were writing slips for the purpose of satta in gali/street near Dairy no.3. Witness deposed that IO passed the information at PS and thereafter, police staff reached there and IO prepared raiding party which included the IO himself, the witnesses and 34 police staff. It is stated that thereafter, the raiding party alongwith the secret informer went to the spot and on reaching the spot, they conducted raid. Witness deposed that one boy was apprehended who was writing on two slips and on two short gatta slips. He deposed that on inquiry by IO, he revealed his name as Nitin Joshi, but the other boy fled from the spot. Witness deposed that IO conducted cursory search of accused and on cursory search, two slips and an amount of Rs.7700/ was recovered from the right side pocket of the short pants worn by the accused. He deposed that IO seized the case property, prepared pullanda and sealed the same with the seal of LC and prepared seizure memo EX.PW2/A. Witness stated that IO prepared tehrir and got the FIR registered through the witness and the witness after the registration of FIR went to the spot with IO HC Dharmender. He deposed the IO HC Dharmender interrogated the accused, arrested him and conducted his personal search vide memos EX.PW2/B and EX.PW2/C. witness deposed that thereafter the entire police FIR No .216/18, State vs. Nitin Joshi 4 staff alongwith accused returned to the PS and case property was deposited in the malkhana. Witness identified the accused in court and during the testimony of witness, the MHCM produced one pullanda of white colour duly sealed with the seal of LC. The seal was broken and on opening pullanda, it was found containing one Reynold pen with blue colour refill, two paper slips and two slips of gatta over which some number were mentioned and one newspaper slip on which some numbers were mentioned and date of 09/10 was also mentioned. The currency notes of Rs.7700/ were also taken out from the pullanda and were correctly identified by the witness. The case property was proved as EX.P1(Colly).
On being cross examined by Ld. APP for the State, the witness deposed that at the gesture and instance of secret informer they reached near the spot and two paper slips and two gatta slips the words "personi complete hair removal cream rose with baby oil" and on newspaper slip and on two other slips some numbers were mentioned. He deposed that IO gave Sl. No. A1 to A5 to the recovered slips and IO HC Dharmender prepared site plan at the instance of SI Lalit.
PW3 SI Lalit chauhan deposed that on 09.10.2018, he was posted as SI PS. Timarpur, when on that day, he alongwith Ct. Vikesh Kumar was performing patrolling duty in gali no.3. He deposed that at about 8 am, one secret informer came and gave information to him regarding two boys writing slips for the purpose of satta in gali near dairy no.3. He deposed that he alongwith Ct. Vikesh Kumar and secret informer reached there, requested 45 public persons to join the proceedings but none agreed and left the spot without disclosing their names and addresses. He deposed that thereafter, at the instance of secret informer, they managed to apprehend one boy who was writing on slips, however the other boy managed to flee away from the spot. He stated that upon interrogation, the apprehended boy disclosed his name as Nitin Joshi and he recovered two slips, two gatta slips , one newspaper cutting and one Reynolds pen from his pants. He stated that upon his FIR No .216/18, State vs. Nitin Joshi 5 personal search, he recovered Rs.7700/ from the right pocket of his shorts and marked them Sl. No.A to A5. He stated that he prepared pullanda and sealed with the seal of LC. He further deposed that seizure memo of case property was prepared, rukka was prepared proved as EX.PW3/A and given to Ct. Vikesh for registration of FIR. Witness deposed that thereafter, Ct. Vikesh handed over the rukka and copy of FIR to HC Dharmender. The accused, case property were handed over to IO HC Dharmender. Witness identified the case property already EX.P1(Colly).
PW4 HC Dharmender deposed that on 09.10.2018, the investigation of the present case was marked to him and he alongwith Ct. vikesh who was having the copy of the FIR and original tehrir, went to the spot where SI Lalit was present with accused. Witness deposed that the incident was narrated to the IO and accused with seized pullanda were handed over to him. He deposed that he prepared site plan which is EX.PW4/A, interrogated the accused, recorded his disclosure statement, arrested him, released him on bail and deposited the case property in malkhana. He deposed that on completion of investigation, he prepared challan and filed the same in court.
5. On closure of prosecution's evidence, the statement of accused was recorded. Accused refused to lead defence evidence and the case was fixed for hearing of final arguments.
6. Final arguments were heard and the case file was carefully examined. The offence for which the accused Nitin Joshi was sent for trial was punishable u/s 12 of the Delhi Public Gambling Act, 1955. The penal provision of Section 12 of Delhi Public Gambling Act, 1955 is reproduced as under:
Section 12.Gaming and setting words and animals to fight in public FIR No .216/18, State vs. Nitin Joshi 6 streetA 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 words or animals to fight in any public street, place or thoroughfare situated within the said Union Territory, 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 magistrate and shall be liable to imprisonment for a term which may extend to 3 months and shall also be liable to a fine which may extend to one thousand rupees."
Further the term Gaming is defined under Section 2(1)(i) as "Gaming" that includes wagering or betting upon a horse race when such wagering and betting takes place on the day on which such race is to be run and in an enclosure which the stewards controlling such race have with the sanction of the central government set apart for the purpose, but does not include a lottery."
8. For proving the offence in question against the accused, the prosecution was required to prove that the accused was indulging in gaming activities and for establishing the offence prosecution has relied heavily on the testimonies of primarily two witnesses PW2 Ct. Vikesh Kumar and PW3 SI Lalit Chauhan. Reliance has been placed on the testimonies of both these witnesses inasmuch as, they have been named as the eyewitnesses and were also involved in the apprehension of the accused. In this regard, it was expectation that both of them would depose in sync with each other testimonies insofar as the material facts are concerned, but there are material discrepancies in their evidence. PW2 deposed that after receiving secret information, the IO PW3 passed the information to PS. Timarpur and thereafter, police staff reached there. But testimony of PW3 is totally silent on the aspect of sending information to the PS. It is nowhere stated by IO that he sent information to the PS. Further, the deposition of PW2 has recorded that a raiding party was constituted before apprehension of accused and it comprised of 34 other police staff but PW3 has testified to have apprehended the accused alongwith Ct. Vikesh only and there is not even a whisper in his evidence of constituting a raiding party including other police officials.
FIR No .216/18, State vs. Nitin Joshi 7
9. It is in evidence of prosecution witnesses that no public person was joined in the search and seizure proceedings conducted by the investigating officer. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws: In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under: "18. 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 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 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".
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
9. Considering the aforesaid observations made by the higher Courts, the omissions/ failure on the part of investigating agency to join independent public FIR No .216/18, State vs. Nitin Joshi 8 witnesses creates reasonable doubt in the prosecution story and are fatal to the prosecution's version which establishes the version of defence that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
10. Further in the matter of Roop Chand Vs. The State of Haryana, 1999 (1) C.L.R 69, Hon'ble Punjab & Haryana High Court held 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 nonjoining 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''.
Also in the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that:
"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. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined FIR No .216/18, State vs. Nitin Joshi 9 by the prosecution. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
11. It is also pertinent to mention that prosecution witnesses have failed to produce any documentary evidence or the DD entries to show their movement from the police station to the spot for raid or of the factum of their conducting raid.
12. Regarding the value of making DD entry, it is worth mentioning that as per Chapter 22 Rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police officials. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under: "22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered: (C)The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whet her posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the Page No.9/12 FIR No. 125/2012 PS: Vijay Vihar U/s 33 Delhi Excise Act State Vs Deen Dayal & Ors prosecution version and attributes oblique motive on the part FIR No .216/18, State vs. Nitin Joshi 10 of the prosecution."
13. Considering these aspects, I doubt the genuineness of the inquiry, raid and seizure proceeding, conducted by the police officials.
14. Thus no conviction can be sustained on the evidence of prosecution witnesses led in the present case. Hence, in light of the facts, circumstances and evidence led by prosecution, the accused Nitin Joshi thus acquitted in the present case.
15. Bail bond in terms of Section 437A Cr.P.C was directed to be furnished.
NEETI Digitally signed
by NEETI SURI
SURI MISHRA
Date: 2019.09.22
MISHRA 16:57:57 +0530
Pronounced in open court (NEETI SURI MISHRA)
on 19.09.2019 MM02 (Central): Tis Hazari Courts
Courts:Delhi:/19.09.2019
(This Judgment contains 10 pages and
all pages are signed by me)
FIR No .216/18, State vs. Nitin Joshi