Delhi District Court
State vs . Nasir on 28 February, 2022
IN THE COURT OF MS. SHIVLI TALWAR
METROPOLITAN MAGISTRATE - 06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
FIR No. 42/2021
PS- Sadar Bazar
U/s - 12 of Delhi Public Gambling Act
State Vs. Nasir
JUDGMENT
(a) Criminal Case No. 9305/2021
(b) CNR No. DLCT02-016985-2021
(c) Date of 27.01.2021 commission of offence
(d) Name of the H.C. Thakur Singh complainant
(e) Name of the Nasir S/o Bahaj Nabi Khan R/o House.No. accused person(s), 7815/19, Nai Basti, Bara Hindu Rao, Delhi. his parentage and residence
(f) Offence(s) Section 12 of Delhi Public Gambling Act complained of or proved
(g) Plea of the Pleaded not guilty accused
(h) Final Order Acquitted
(i) Date of institution 04.09.2021 of case
(j) Date when 28.02.2022 judgment was reserved
(k) Date of judgment 28.02.2022 Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.02.28 17:27:51 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 1 of 20 Brief reasons for the decision of the case: -
1. The genesis of the prosecution story is that on 27.01.2021 at about 9.00 PM near Nai Basti, Iliyas Building, Delhi, within the jurisdiction of PS Sadar Bazar, the accused namely Nasir was found gambling through his phone and Rs. 1060/-were recovered from his possession.
2. On finding a prima facie case to proceed against the accused, cognizance of the offence was taken on 04.09.2021 and the accused was duly summoned.
The provisions of Section 207 Cr.P.C. were duly complied with and notice of accusation for offence u/s 12 Delhi Public Gambling Act was served upon the accused on 14.09.2021 to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined two witnesses: PW 1 Ct. Gopal and PW2 Ct. H.C. Thakur Singh (Complainant & Investigating Officer).
4. The record transpires that during the course of trial, the accused admitted the present FIR (without admitting its contents) and the examination of formal witness qua the same was accordingly dispensed with.
5. The prosecution evidence was closed on 23.02.2022 and the accused was examined u/s 313 r/w 281 Cr.P.C. wherein all incriminating evidence was put to him. He submitted that he is innocent and has been falsely implicated in the present case and that the case property was planted upon him. He opted not to lead any evidence in his defence.
6. Prior to delving into the merits of the present case, it is relevant to briefly Digitally signed discuss the testimonies of the prosecution witnesses. by SHIVLI SHIVLI TALWAR TALWAR Date:
2022.02.28 17:28:01 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 2 of 20
7. PW1 Ct. Gopal deposed that on 27.01.2021, at about 9 PM, a secret informer told him that a person is playing satta near Iliyas Building. IO HC Thakur Singh gave him a note of Rs. 10 signed by HC Thakur Singh to place a bet with the accused. Secret informer placed a bet on number 50. The secret informer waived his hand over his head and confirmed that the bet has been placed. In the meantime, IO HC Thakur Singh came to them and they went to apprehend the accused. The accused was apprehended and a cursory search was made, upon which one mobile phone redmi and Rs.1070/- in total (500x2 + 10x7) was recovered from left pocket of his pant in which the note of Rs. 10 signed by the HC Thakur Singh was also recovered. IO recorded the tehrir and handed over the same to him to get the FIR registered. He went to the PS and handed over the original tehrir to the duty officer who registered the present FIR. He came back to the spot along with original tehrir and computerized copy of FIR. IO seized the mobile phone and Rs. 1070/- in white envelope vide seizure memo Ex. P-1 and sealed the same with the seal. The said pullanda/white envelope was deposited in the Malkhana PS Sadar Bazar. At this stage, certain leading questions were put to the witness by Ld. APP for the State upon permission obtained from the Court as the witness was not stating complete facts. The witness admitted that the white envelope was sealed with the seal of 'CS'. He also admitted that after use of seal, the same was handed over to him. He also admitted that the accused was arrested vide arrest memo Ex. PW1/1. He also admitted that the accused was personally searched vide personal search memo Ex. PW1/2 and that the IO recorded the disclosure statement of accused Ex. PW1/3. He also admitted that IO prepared the site plan of the place of incident Ex. PW1/4. The witness correctly identified the accused as well as the case property Ex. PW1/5 during his testimony before the Court.
SHIVLI Digitally signed by SHIVLI
TALWAR
TALWAR Date: 2022.02.28 17:28:08
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During his cross-examination by Ld. Defence Counsel, the witness deposed that he left the PS at about 8 PM and came back to the PS at around 11:45 PM after completing the investigation. He further deposed that they recorded the departure entry before leaving the station but he did not remember the number of the same. He further deposed that they were in police uniform and that when they left the station, they were having one danda and phatti (in which documents like arrest memo, personal search memo and other documents were present). He admitted that people were coming and going nearby to the place of incident. He deposed that IO requested many residents of Iliyas Building to join the investigation but they all refused to join by stating their separate reasons and that they did not note down the name of residents of Iliyas Building who refused to join the investigation. He further deposed that the accused did not issue any slip regarding confirmation of betting. He admitted that the fact "Secret informer placed a bet on number 50 and the secret informer waived his hand over his head and confirmed that the bet has been placed" is not mentioned in his statement under section 161 Cr.P.C. He further deposed that they did not know whether the IO checked the IMEI number of the mobile phone of the accused. He further deposed that the IO did not prepare the seal handing over memo. He further deposed that they did not give their personal search before taking the search of accused. He further deposed that before taking the rukka to the PS, IO prepared the seizure memo and at that time, the IO did not call any other officer from the PS to investigate the case when he left the spot along with rukka to the PS. He further deposed that he went to the PS along with rukka at about 9 PM and came back to the spot after 30-35 minutes. He further deposed that IO did not get signature on the disclosure statement of accused of any public witness. He further deposed that he did not know to whom the SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:28:16 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 4 of 20 seal of 'CS' belongs. He denied the suggestion that all the investigation was done while sitting in PS and that he signed all the memos in the police station. He further denied the suggestion that the accused was falsely implicated as he was not actually betting.
8. PW2 HC Thakur is the complainant as well as the Investigating Officer. He deposed on similar lines as PW1 Ct. Gopal. He deposed that he informed 4-5 public persons about the secret information and requested them to join the investigation however, none of them agreed to join the investigation and left the place without disclosing their name and address. He proved the rukka Ex.PW2/A. The witness correctly identified the accused as well as the case property Ex. PW1/5 during his testimony before the Court.
During his cross-examination by Ld. Defence Counsel, the witness deposed that he left the PS in police uniform at about 8.00 PM on a call without making any separate DD entry regarding his departure. He further deposed that he came back to the PS at around 02:00 AM after completing the investigation of the present case. He admitted that Illias building is a residential complex and that the area is a congested one. He deposed that he did not record the name of persons who refused to join the investigation and that he did not take any action against them. He admitted that he had not mentioned this fact in rukka that Ct. Gopal waived his hand after putting his hand on his head after playing the satta. He admitted that he had not made any request in the rukka that after registration of the case that other officer may be sent for the further investigation. He admitted that he did not take the search of Ct. Gopal before handing him numbery note. He admitted that he had also not offered his search to the accused before taking the search of the accused. He further admitted that accused did not give any parchi to Ct.
SHIVLI Digitally signed by SHIVLI
TALWAR
TALWAR Date: 2022.02.28 17:28:23
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FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 5 of 20
Gopal after placing satta. He also admitted that he did not make any documents before sending the rukka to the PS. Later on, he deposed that he prepared personal search of accused and seizure memo of the mobile and numbery note and other notes. He further deposed that no CDR or ownership documents of the mobile phone which was allegedly recovered from the accused was obtained. He further deposed that he had not enquired as to in whose name the SIM in the recovered mobile phone was registered. He denied the suggestion that the mobile phone recovered from the accused did not belong to him and that the same was planted upon him. He also denied the suggestion that no numbery note was recovered from the accused and that the same was planted upon him. He deposed that no handing over/taking over memo of seal was prepared and that the seal of 'CS' did not belong to him. He deposed that the distance between the spot and the PS was about 750 meters-1 km. He further deposed that Ct. Gopal came back to the spot after registration of the case at about 12:20 AM. He further deposed that no other customer was present at the spot who was playing the satta. He further deposed that no call details of the persons who played the satta was obtained by him. He denied the suggestion that Ct. Gopal did not play the satta with the accused at the spot and that no satta was played by the accused at the spot. He also denied the suggestion that all the investigation was done while sitting in PS and he signed all the memos in the police station. He also denied the suggestion that the accused was falsely implicated as he was not actually betting.
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. Counsel for accused keeping in view the material SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:28:31 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 6 of 20 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. Counsel 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 the police officials whose testimonies are not reliable without corroboration by public witnesses. It has further been argued by Ld. Counsel for accused that none of the police officers had made departure/ arrival entry of their patrolling duty in the daily diary. 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 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 SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:28:38 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 7 of 20 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 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. Counsel for accused that no public witness was joined by the IO during investigation of the present case and at the time of SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:28:46 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 8 of 20 alleged recovery of the case property, despite their availability.
Perusal of record reflects that PW1 Ct. Gopal, during his cross-examination by Ld. Defence Counsel, admitted that people were coming and going nearby to the place of incident. He further deposed that IO requested many residents of Iliyas Building to join the investigation but they refused to join by stating their separate reasons and that they did not note down the name of residents of Iliyas Building who refused to join the investigation. PW2 HC Thakur, during his examination-in-chief, deposed that he requested 4-5 public persons to join the investigation however, none of them agreed and left the place without disclosing their name and address. During his cross- examination, he admitted that Iliyas Building is a residential complex and that the area is a congested one. He deposed that he did not record the name of persons who refused to join the investigation and that he did not take any action against them.
Ld. Counsel for accused submits that the prosecution has only examined police officials whose testimonies are not reliable without corroboration by public witnesses. Ld. Counsel 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: 2022.02.28
17:28:55 +0530
FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 9 of 20
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 High Court of Delhi observed that, Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:03 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 10 of 20 "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 shopkeeeprs 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 place of alleged incident was a residential complex and the area was a congested one. 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.
17. It has been further argued by Ld. Counsel for accused that case property has been tampered with as no seal handing over memo was prepared by the IO. PW1 Ct. Gopal, during his cross-examination by Ld. Defence Counsel, deposed that the IO did not prepare the seal handing over memo. PW2 HC Thakur also, during his cross-examination by Ld. Defence Counsel, deposed that no handing over/ taking over memo of seal was prepared. Perusal of testimonies of both the witnesses reveals that pursuant to seizure of case SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:09 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 11 of 20 property from the accused, IO put the case property in a white envelope and sealed it with the seal of 'CS' and seal after use was handed over to PW1/ Ct. Gopal. Thereafter, the seized case property was deposited in Malkhana.
Admittedly, the seal after use was not handed over to any independent person. It was handed over by the IO to Ct. Gopal only. This Court is of the considered opinion that PW1 himself being a material recovery witness 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 .5. Even the 1.0. Public Witness .7 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 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." Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:16 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 12 of 20 Thus, 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 officials having possession of the seal were posted.
18. It is also pertinent to note that the prosecution has failed to prove as to whom the seal of 'CS' belongs to. PW1 Ct. Gopal, during his cross-examination by Ld. Defence Counsel, deposed that he did not know to whom the seal of 'CS' belongs. PW2 HC Thakur also, during his cross-examination by Ld. Defence Counsel, deposed that the seal of 'CS' did not belong to him.
19. It has been further argued by Ld. Counsel for accused that no DD entry pertaining to arrival and departure of the police officials for patrolling duties has been proved on record.
In this regard, reference is made to the testimony of PW1 Ct. Gopal, who during his cross-examination by Ld. Defence Counsel, deposed that they recorded the departure entry before leaving the police station but he did not remember the number of the same.
Reference is also made to the testimony of PW2 HC Thakur, who during his cross-examination by Ld. Defence Counsel, deposed that he left the police station at about 8PM on a call without making any separate DD entry regarding his departure.
Thus, from the perusal of record and testimonies of both the prosecution witnesses, it emerges that no DD entry pertaining to departure for patrolling duty has been proved on record by any of the police officials.
At this juncture, it is pertinent to mention that Chapter 22 rule 49 of Punjab Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:23 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 13 of 20 Police Rules 1934, provides 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, whether posted at the police station or elsewhere, with the statement of 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 latter personally by signature or seal.
Note: The term Police Station will include or places such as Police Lines and Police Posts where register no. II is maintained."
In the present case, the said provision has not been complied with by the investigating agency. As per the prosecution version, at the relevant time, police personnel were on area patrolling duty but the DD entry vide which they had left the police station for patrolling has not been brought on record. Even the number of the said DD entry made in Register No. II has not been brought on judicial record. In the considered opinion of the Court, prosecution was under an obligation to prove on record, the above said DD entry vide which above said police officials had left the police station for patrolling duty so as to prove the possibility of availability of police personnel at the place of apprehension of accused. However, the same has not been done.
Reference is made to the judgment of Hon'ble High Court of Delhi, in the case of Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed that, Digitally signed SHIVLI by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:31 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 14 of 20 "If the investigation agency deliberately ignores to comply with the provisions of the Act, the courts 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 prosecution version and attributes oblique motive on the part of the prosecution."
Thus, the failure to bring on record the DD entries creates a reasonable doubt in the prosecution version.
20. It has been further contended by Ld. Counsel for accused that all documents of the present case were prepared in the police station and not at the spot of alleged incident. It has been further argued that the accused was not arrested from the spot and he was in fact called to the police station and thereafter arrested.
21. It is further pertinent to note that seizure memo Ex. P-1 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 in the same ink and handwriting as the remaining contents of the document.
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, Digitally signed by SHIVLI SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:37 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 15 of 20 "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."
22. It is alleged by the prosecution that the accused was found gambling through his phone and one mobile phone was recovered from the possession of accused. However, Ld. Defence Counsel has pointed out that PW1 Ct. Gopal, during his cross-examination by Ld. Defence Counsel, deposed that they did not know whether the IO checked the IMEI number of the mobile phone of the accused. Furthermore, PW2 HC Thakur, during his cross-examination by Ld. Defence Counsel, deposed that no CDR or ownership documents of the mobile phone which was allegedly recovered from the accused was obtained. He further deposed that he had not enquired as to in whose name the SIM in the recovered mobile phone was registered. Thus, Ld. Defence Counsel submits that the mobile phone allegedly recovered from the possession of accused did not belong to him and the same was planted upon him.
23. It is further pertinent to note that if the accused was found gambling at a SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:46 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 16 of 20 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. In fact, PW2 HC Thakur, during his cross-examination by Ld. Defence Counsel, deposed that no other customer was present at the spot who was playing the satta. He further deposed that no call details of the persons who played the satta were obtained by him. The same is a material void in the case of the prosecution.
24. Moreover, the prosecution has failed to bring any evidence on record as to the modus operandi adopted by the accused for alleged satta. It has not been proved by the prosecution as to how the recovered phone would have been used for gambling. From the mere recovery of phone, nothing can be deduced as to factum of alleged 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. Thus, this Court is of the considered opinion that mere recovery of a mobile phone is not sufficient for proving the charge of gambling against the accused.
25. It is further pointed out by Ld. Defence Counsel that PW1 Ct. Gopal, during his cross-examination by Ld. Defence Counsel, deposed that the accused did not issue any slip regarding confirmation of betting. He also admitted that the fact "Secret informer placed a bet on number 50 and the secret informer waived his hand over his head and confirmed that the bet has been placed" is not mentioned in his statement u/s 161 Cr.PC. It is also pointed out that PW2 HC Thakur, during his cross-examination by Ld. Defence Counsel, also admitted that he had not mentioned this fact in the rukka that Ct. Gopal SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:29:54 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 17 of 20 waived his hand after putting his hand on his head after playing the satta. He further admitted that accused did not give any parchi to Ct. Gopal after placing satta. Thus, Ld. Defence Counsel submits that the same clearly establishes that the accused has been falsely implicated in the present case.
26. Ld. Defence Counsel has also pointed out another major contradiction in the testimonies of both the prosecution witnesses. PW1 Ct. Gopal, during his cross-examination by Ld. Defence Counsel, deposed that he went to the PS along with rukka at about 9 PM and came back to the spot after 30-35 minutes whereas PW2 HC Thakur, during his cross-examination by Ld. Defence Counsel, deposed that Ct. Gopal came back to the spot after registration of the case at about 12:20 AM. The said contradiction casts a serious shadow of doubt on the version of the prosecution.
27. It also cannot be lost sight of that PW1 Ct. Gopal as well as PW2 HC Thakur, during their cross-examination by Ld. Defence Counsel, admitted that they did not give their personal search before taking the search of accused. PW2 HC Thakur, during his cross-examination by Ld. Defence Counsel, also admitted that he did not take the search of Ct. Gopal before handing him numbery note. Thus, the possibility of the case property having been planted upon the accused cannot be ruled out.
28. Ld. Defence Counsel further submits that the fact that complainant and IO are the same further strengthens his submission that accused has been falsely implicated in the present case. It has also been pointed out that PW1 Ct. Gopal, during his cross-examination by Ld. Defence Counsel, deposed that the IO did not call any other officer from the PS to investigate the case when he left the spot along with rukka to the PS. PW2 HC Thakur Digitally also, during his SHIVLI signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:30:02 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 18 of 20 cross-examination by Ld. Defence Counsel, admitted that he had not made any request in the rukka that after registration of case, another officer be sent for further investigation. This Court is of the considered opinion that the fact that IO and complainant are the same is also a clear violation of judgment of Hon'ble Supreme Court in the case of Mohan Lal Vs. The State of Punjab (Criminal Appeal No. 1880 of 2011, decided on 16.08.2018) wherein the Hon'ble Apex Court held that, "It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof."
29. 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.
30. 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 cannot be held liable for the SHIVLI Digitally signed by SHIVLI TALWAR TALWAR Date: 2022.02.28 17:30:09 +0530 FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 19 of 20 offence with which he has been charged. Accordingly, accused namely Nasir is acquitted in the present case for the offence punishable u/s 12 Delhi Public Gambling Act.
31. 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
SHIVLI TALWAR
ANNOUNCED IN OPEN COURT (through V.C.) TALWAR Date:
2022.02.28
17:30:16
on: 28.02.2022 +0530
(SHIVLI TALWAR)
MM-06(C)/THC/Delhi/28.02.2022
FIR No. 42/2021 PS Sadar Bazar State Vs Nasir Page No. 20 of 20