Gauhati High Court
Nirmal Ghosh And 3 Ors vs The State Of Assam on 8 May, 2026
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GAHC010122342014
2026:GAU-AS:6364
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./22/2014
NIRMAL GHOSH and 3 ORS
S/O- LT. BIPIN GHOSH, R/O- SHANTIPARA, P.O., P.S. and DIST.- DIBRUGARH,
ASSAM.
2: DEEPAK VERMA
S/O- LT. SANKI VERMA
R/O- PANCHALI
P.O.
P.S. and DIST.- DIBRUGARH
ASSAM.
3: RAMESHWAR KALANDI
S/O- LT. SUBESWAR KALANDI
R/O- BORBARUAH LANE N. 1
P.O. and P.S.- BORBARUAH
DIST.- DIBRUGARH
ASSAM.
4: NANGUTAN THAKUR
S/O- LT
. DEHARU THAKUR
R/O- LAPATCATTA
P.O. and P.S.- BARBARUAH
DIST.- DIBRUGARH
ASSAM
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.P J SAIKIA, MR.K BARUAH,MR.R S MISHRA
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Advocate for the Respondent : , PP, ASSAM,
-B E F O R E -
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioners : Mr. P J Saikia, Mr. K J Saikia, Mr. K Baruah,
Mr. R S Mishra.
For the Respondent(s) : Ms. S H Bora, APP, Assam.
Date on which judgment
is reserved : N/A.
Date of pronouncement
of judgment : 08.05.2026
Whether the pronouncement
is of the operative part
of the judgment ? : No.
Whether the full judgment
has been pronounced : Yes.
JUDGMENT & ORDER (ORAL)
Heard Mr. K J Saikia, learned counsel for the petitioners. Also heard Ms. S H Bora, learned Additional Public Prosecutor, Assam for the State.
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2. By way of this revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973, the accused petitioners have assailed the judgment and order dated 23.09.2013 passed by the learned Additional Sessions Judge, Dibrugarh in Criminal Appeal No. 28(2)/2012, whereby the judgment and order dated 30.04.2012 passed by the learned Chief Judicial Magistrate, Dibrugarh in G.R. Case No. 1017/2009 was affirmed.
3. The brief facts leading to the institution of the present revision petition are that one Sri Jatin Ch. Bora, ASI of Police attached to Dibrugarh Police Station, lodged an Ejahar before the Officer-in-Charge, Dibrugarh Sadar Police Station alleging, inter alia, that on 11.06.2009 at about 5:30 PM, acting upon source information, he along with the Additional Superintendent of Police (Headquarters), Dibrugarh and other police personnel conducted a raid at a house situated near the fish market at New Market, Dibrugarh, where the accused petitioners along with another person were allegedly found playing "double gutti", a form of gambling. Cash money and betting materials were also recovered from their possession.
4. On the basis of the said Ejahar, Dibrugarh Police Station Case No. 281/2009 corresponding to G.R. Case No. 1017/2009 was registered under Section 14 of the Assam Games and Betting Act, 1970 (hereinafter referred to as "the 1970 Act") and investigation was accordingly commenced.
5. During the course of investigation, the Investigating Officer visited the place of occurrence, examined the witnesses acquainted with the facts of the case and, upon completion of investigation, submitted charge-sheet under Section 14 of the 1970 Act against the accused petitioners and another co- accused.
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6. The learned Trial Court having found a prima facie case, framed charge under Section 14 of the 1970 Act against the accused petitioners, to which they pleaded not guilty and claimed to be tried.
7. In order to bring home the charge, the prosecution examined four witnesses including the complainant and seizure witnesses. The defence plea was one of total denial. No evidence was adduced by the defence.
8. Upon appreciation of the evidence on record, the learned Chief Judicial Magistrate, Dibrugarh, by judgment and order dated 30.04.2012 convicted the accused petitioners under Section 14 of the 1970 Act and sentenced them to undergo rigorous imprisonment for one year and to pay fine of Rs. 2,000/- each, in default, to undergo simple imprisonment for one month.
9. The appeal preferred by the accused petitioners being Criminal Appeal No. 28(2)/2012 came to be dismissed by the learned Additional Sessions Judge, Dibrugarh vide judgment and order dated 23.09.2013, affirming the conviction and sentence imposed by the learned Trial Court.
10. Mr. K. J. Saikia, learned counsel appearing for the accused petitioners, submits that the judgments rendered by both, the learned Trial Court as well as Appellate Court suffer from perversity and illegality. He contends that the mandatory procedure contemplated under Section 7 of the 1970 Act authorizing entry and search of a betting house was not complied with and, therefore, the entire prosecution stands vitiated. He further submits that although the complainant/ PW-1 allegedly conducted the raid in presence of the Officer-in- Charge and the Additional Superintendent of Police (Headquarters), the prosecution failed to examine the said officials, thereby creating a serious infirmity in the prosecution case.
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11. The learned counsel for the petitioners further submits that the prosecution failed to establish that the premises in question constituted a "betting house"
within the meaning of the 1970 Act and, therefore, the ingredients of the offence were not proved. It is lastly contended that both the learned Courts below failed to properly consider the applicability of Section 360/361 CrPC and the provisions of the Probation of Offenders Act, 1958 despite the admitted position that the accused petitioners are first-time offenders having no criminal antecedents.
12. In support of his submissions, learned counsel for the petitioners has relied upon the decisions rendered in the following cases -
(i) Bablu @ Mubarik Hussain -Vs- State of Rajasthan, reported in (2006) 13 SCC 116;
(ii) Harivallabha & Anr. -Vs- State of M.P., reported in (2005) 10 SCC 330 and
(iii) Soori @ T.V. Suresh -Vs- The State of Karnataka , reported in (2023) 7 SCC 257.
13. Per contra, Ms. S.H. Bora, learned APP, Assam submits that the prosecution has successfully established the involvement of the accused petitioners in gambling activities and that the concurrent findings of conviction recorded by both the learned Trial Court as well as Appellate Court do not warrant interference in exercise of revisional jurisdiction. She submits that no jurisdictional error or perversity is discernible in the impugned judgments.
14. The learned APP, however, fairly submits that the accused petitioners are first-time offenders and there is nothing on record to indicate any criminal Page No.# 6/12 antecedents or prior conviction involving offences of similar nature.
15. I have given my prudent consideration to the submissions advanced by the learned counsel for the parties and have carefully perused the materials available on record including the judgments impugned herein.
16. PW-1, namely the complainant himself, categorically deposed that on 11.06.2009, acting upon source information, he along with other police officials conducted a raid at the house situated near the fish market at New Market, Dibrugarh and found the accused petitioners playing "double gutti". The said witness further deposed that betting materials along with cash amounts were recovered from their possession and they were accordingly apprehended.
17. PW-3 and PW-4 are seizure witnesses who have supported the seizure effected by the police. Exhibit-2, namely the seizure list, reveals recovery of 125 numbers of "double gutti" paper boards along with cash amounting to Rs. 4,020/- apart from additional amounts recovered individually from the accused petitioners.
18. It further appears that the testimony of the prosecution witnesses remained substantially unshaken during cross-examination. The accused petitioners neither furnished any explanation during their examination under Section 313 CrPC regarding their presence inside the premises nor adduced any evidence in defence.
19. At this stage, it would be apposite to refer to the relevant statutory provisions contained in the Assam Games and Betting Act, 1970.
Section 2(c) defines "betting house" to mean any house, room or place used for the purpose of betting or where instruments of betting are kept or found. Section 2(d) defines "instruments of betting" to include boards, slips, Page No.# 7/12 tickets and other materials used for betting. Section 8 of the Act raises a statutory presumption that where instruments of betting or records of betting are found in any house or upon persons found therein, such premises shall be presumed to be a betting house unless the contrary is proved. Similarly, Sections 16 and 18 further incorporate presumptions against persons found in such premises and with betting instruments.
20. The legislative intent behind engrafting such presumptions is evident. Gambling activities are generally conducted in secrecy and direct evidence may not always be available. The statute, therefore, consciously permits the Court to draw presumptions from the surrounding circumstances and recovery of betting materials.
21. In the present case, the evidence on record clearly establishes that the accused petitioners were found inside the premises along with betting boards and cash amounts connected with gambling activity. Accordingly, the statutory presumptions under Sections 8, 16 and 18 of the 1970 Act stood attracted.
22. Significantly, the accused petitioners failed to rebut the aforesaid presumptions either through cross-examination or by leading defence evidence. Mere denial, in the face of statutory presumptions supported by seizure of betting instruments and cash amounts, is wholly insufficient.
23. The contention advanced on behalf of the petitioners that the prosecution failed to establish the premises as a betting house is devoid of merit. Once betting instruments and betting records are found within the premises and persons are apprehended therein while indulging in betting activities, the statutory presumption squarely operates unless rebutted by cogent evidence. No such rebuttal is forthcoming in the present case.
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24. Likewise, non-examination of the Officer-in-Charge or the Additional Superintendent of Police does not materially affect the prosecution case. PW-1 himself is the police official who participated in and conducted the raid leading to apprehension of the accused petitioners and seizure of the betting materials. His testimony clearly establishes the manner in which the accused petitioners were found indulging in gambling activities and the consequent seizure effected from the place of occurrence. The evidence of PW-1 remained substantially unshaken during cross-examination and was duly corroborated by the seizure witnesses. It is settled law that quality of evidence prevails over quantity and non-examination of every official accompanying the raid party is not fatal when the evidence adduced otherwise inspires confidence and sufficiently establishes the prosecution case.
25. The contention advanced on behalf of the accused petitioners regarding alleged non-compliance of the procedure contemplated under Section 7 of the 1970 Act is also found to be without merit. Except making a bald submission at the stage of arguments, nothing has been brought on record to indicate that the procedure relating to entry, search and seizure was not followed by the police officials while conducting the raid. Significantly, no suggestion whatsoever was put to PW-1 or the seizure witnesses during cross-examination disputing the legality of the search, seizure or entry into the premises. The prosecution witnesses were never confronted with any allegation of procedural impropriety so as to afford them an opportunity of explanation. In absence of any foundational challenge during trial, the accused petitioners cannot be permitted to raise such factual contention for the first time in revisional jurisdiction. Furthermore, no prejudice having been demonstrated to have been caused to the accused petitioners on account of the alleged irregularity, the said Page No.# 9/12 contention does not persuade this Court to interfere with the concurrent findings recorded by the learned Trial Court as well as the Appellate Court.
26. Having regard to the evidence available on record and the statutory presumptions under the 1970 Act, this Court finds no perversity, illegality or jurisdictional infirmity in the concurrent findings recorded by the learned Trial Court as well as the Appellate Court holding the accused petitioners guilty under Section 14 of the 1970 Act. Accordingly, the conviction of the accused petitioners does not warrant interference in exercise of revisional jurisdiction.
27. This now brings the Court to the question as regards the applicability of the provisions of Section 360/361 CrPC and the Probation of Offenders Act, 1958.
28. It appears from the record that the learned Trial Court declined to extend the benefit of probation primarily considering the nature of the offence. However, the learned Appellate Court failed to independently examine whether the accused petitioners were entitled to consideration under the beneficial provisions of the Probation of Offenders Act, 1958.
29. The Probation of Offenders Act, 1958 is a beneficial and reformative legislation intended to prevent conversion of first-time offenders into hardened criminals by exposing them to prolonged incarceration. The object of the legislation is not merely punitive but reformative and rehabilitative.
30. In Bablu @ Mubarik Hussain (Supra), the Apex Court held that Section 361 CrPC casts a mandatory duty upon the Court to consider applicability of Section 360 CrPC wherever possible and special reasons must be recorded, if such benefit is denied.
31. Similarly, in Harivallabha (Supra), the Apex Court held that where the Page No.# 10/12 offenders are first-time offenders and the circumstances justify reformative treatment, denial of probation without adequate reasons would be improper.
32. More importantly, in Soori @ T.V. Suresh (Supra), the Apex Court extended the benefit of probation even in a case arising out of gambling offences considering absence of criminal antecedents and the reformative object of the legislation.
33. The principles emerging from the aforesaid decisions unmistakably indicate that while grant of probation is discretionary, consideration thereof is mandatory, particularly in cases involving first-time offenders where the offence does not disclose moral depravity, violence or grave societal impact.
34. In the present case, several factors weigh in favour of extending the benefit of probation to the accused petitioners.
35. Firstly, the accused petitioners are admittedly first-time offenders and no criminal antecedents have been brought on record against them.
36. Secondly, there is nothing on record to indicate that the accused petitioners were previously involved in offences of similar nature.
37. Thirdly, the occurrence pertains to the year 2009 and the accused petitioners have undergone the ordeal of criminal prosecution, trial, appeal and revision for nearly seventeen years.
38. Fourthly, no material has been placed before this Court to suggest that the accused petitioners are beyond reformation or that their release on probation would be detrimental to the society.
39. This Court is conscious of the fact that gambling activities have serious adverse social consequences and that it is precisely to curb the growing menace Page No.# 11/12 of organized betting and gambling that the legislature enacted the Assam Games and Betting Act, 1970 incorporating stringent provisions including statutory presumptions under Sections 8, 16 and 18 of the Act. Therefore, offences under the said special statute cannot be treated lightly. At the same time, sentencing must necessarily depend upon the facts and circumstances of each individual case. In the present case, the accused petitioners are first-time offenders, no criminal antecedents have been brought on record against them, and the occurrence pertains to the year 2009. The materials on record also do not indicate involvement of the accused petitioners in any organized or repeated criminal activity. In such peculiar facts, while the conviction deserves to be maintained so as to uphold the legislative object of the statute, the ends of justice would be adequately served by extending to the accused petitioners the reformative benefit under the Probation of Offenders Act, 1958 instead of directing incarceration at this distant point of time.
40. Sentencing is not merely a process of imposing punishment; it is also a judicial exercise directed towards balancing deterrence with reformation. The criminal justice system recognizes that in appropriate cases, particularly involving first-time offenders, societal interest may be better served by reform rather than incarceration.
41. In the considered opinion of this Court, sending the accused petitioners to undergo rigorous imprisonment at this stage, after lapse of nearly seventeen years from the date of occurrence, would not advance the cause of justice. On the contrary, extending them the benefit of the Probation of Offenders Act, 1958, while maintaining the conviction and fine would adequately subserve the ends of justice.
42. Accordingly, the appeal is allowed in part and while upholding the Page No.# 12/12 conviction and sentence of fine awarded to the petitioners, the sentence of imprisonment awarded against them is set aside and the learned Trial Court is directed to deal with them under the provisions of the Probation of Offenders Act, 1958 and Section 360 CrPC. The petitioners who are on bail, are discharged from the liability of bail bonds.
43. Resultantly, the accused petitioners shall deposit the fine amount before the learned Trial Court within a period of one month from the date of receipt of a certified copy of this judgment.
44. Send back the TCR forthwith, along with a copy of this judgment.
JUDGE
Comparing Assistant
Digitally signed by
Pranab Pranab Kumar Deka
Kumar Deka Date: 2026.05.11
15:26:36 +05'30'