Delhi District Court
Harminder Singh vs The State on 15 October, 2024
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-000007-2024
CRIMINAL APPEAL No.: 03/2024
GURDEEP KAPOOR,
S/o. Shri. Khushbash,
R/o. D-416, Nehru Vihar,
Timarpur, Delhi-110054. ... APPELLANT
VERSUS
STATE (GOVT. NCT OF DELHI) ... RESPONDENT
Date of Institution : 03.01.2024
Date when judgment was reserved : 30.07.2024
Date when judgment is pronounced : 15.10.2024
CNR No.: DLCT01-018412-2023
CRIMINAL APPEAL No.: 04/2024
HARMINDER SINGH,
S/o. Late Shri. Balbir Singh,
R/o. H. No. B-4A, 2nd Floor,
Gali No. 2, Hardev Nagar,
Burari, Delhi-110084. ... APPELLANT
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of Institution : 03.01.2024
Date when judgment was reserved : 30.07.2024
Date when judgment is pronounced : 15.10.2024
JUDGMENT
1. The present judgment shall determine the aforenoted appeals bearing; Crl. Appeal No. 03/2024 and Crl. Appeal No. 04/2024, filed in terms of the provisions under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 1 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 13:59:57 +0530 'Cr.P.C.'). Pertinent to outrightly observe that Crl. Appeal No. 03/2024 has been preferred by Gurdeep Kapoor, whereas Crl. Appeal No. 04/2024 has been preferred by Harminder Singh (hereinafter the appellants namely, Gurdeep Kapoor and Harminder Singh are collectively referred to as the 'appellants/accused persons'). Notably, both the said appeals impugn/challenge a common judgment dated 23.11.2023 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate/Ld. MM-02, Central District, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM'), in case bearing; "State v. Harminder Singh & Anr., CR Case No. 12055/2019", arising out of FIR No. 91/2019, convicting the appellants for the offences punishable under Sections 3 and 4 of the Delhi Public Gambling Act, 1955 (hereinafter referred to as the 'Gambling Act/DPG Act') and the consequent order of sentence dated 04.12.2023 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellants, simple imprisonment for a period of 03 (three) months and fine of Rs. 1,000/- (Rupees One Thousand only), each, and in default of payment of fine, to undergo simple imprisonment for a further period of 15 (fifteen) days for the offence under Section 3 of the Gambling Act; and simple imprisonment for a period of 01 (one) month and a fine of Rs.
500/- (Rupees Five Hundred only), each, and in default of payment of fine, to undergo simple imprisonment for a further period of 07 (seven) days for the offence under Section 4 of the Gambling Act. The sentences were further directed to run concurrently, with the appellants being held to be entitled to the benefit of the provision under Section 428 Cr.P.C. (hereinafter impugned judgment and Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 2 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.10.15 14:00:02 +0530 impugned order are collectively referred to as the 'impugned judgment and order').
2. Laconically, the case of the prosecution is that on 06.06.2019, information regarding registration of FIR in question under Sections 3/4/5/9/55 Gambling Act was received vide DD No. 14, whereupon, the investigation in the instant case was marked to the concerned ASI. Consequently, the said ASI visited the spot, i.e., H. No. D-416, Nehru Vihar, Timarpur, Delhi (hereinafter referred to as the 'spot'). At that point in time, the ASI is asserted to have found ASI Ajit, HC Manjeet No. 811/N, Ct. Ajay No. 1742/N and Ct. Vineet No. 1729/N along with two persons, namely, Gurdeep Kapoor and Harminder Singh (the appellants), who were apprehended by the said police personnel at the spot. At that point in time, ASI Ajit is further proclaimed to have handed over the sealed seized property, search warrants as well as the appellants to the IO of the present case. Further, it was informed to the IO/ASI that Ct. Tarun No. 1221/N had been sent to PS. Timarpur for the registration of the instant FIR. At the instance of ASI Ajit, the IO/ASI is further proclaimed to have prepared the site plan. In the meanwhile, Ct. Tarun is stated to have returned to the spot and handed over the computerized copy of the FIR and original tehrir to the IO, inter alia recording that ASI Ajit No. 303/PTC Spl. Staff North District Office, Maurice Nagar, Delhi received information from secret informer/mukhbir khaas at around 02:00 p.m. regarding satta/gambling activities being carried out at H. No. D-416, Nehru Vihar, Timarpur, Delhi (मुख़बर खास ने हाज़िर Office आकर ASI Ajit को बतलाया मकान न. D-416, Nehru Vihar, Timarpur, Delhi में Ground Floor पर आजकल चल रहे World Cup Cricket Match पर Mobile में Hotline लेकर Laptop व Mobile phones की Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 3 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:00:07 +0530 मदद से सट्टा चल रहा हैं, जो आज भी World Cup का एक मैच जो Australia व West Indies के बीच 3pm से होगा और इस मैच पर सट्टा लगवाएंगे/ यदि वहां जाकर समय पर रेड की जाए तो उन्हें रंगे हाथो पकड़ा जा सकता है). 2.1. Upon receipt of the aforesaid information, a raiding team is asserted to have been constituted comprising of HC Atul, Ct. Ajay, Ct. Vineet along with the secret informer, whereupon they reached at the spot and on the pointing of the secret informer/mukhbir khaas, recce of the house was carried out and subsequently, ASI Ajit obtained the search warrants of the place. Subsequently, at around 04:10 p.m., the raiding team is stated to have entered the house with spontaneity. At that point in time, as per the prosecution, the appellants were found sitting inside one room on the ground floor, who disclosed their identities as that of the appellants as well as, were found looking towards one Dell Company laptop, kept inside the room. Inside the said Dell Laptop, 'Batting Assistant I book' software was found operational at that point in time, whereupon names of individuals involved in gambling/satta were found recorded/uploaded. Correspondingly, one mobile phone of Intex make, golden colour IMEI No. 91560501421581, 91560501421599, connected to Wi-Fi, albeit without a SIM Card was found, on which, the Australia v. West Indies, live match is declared to be telecasted at that point in time. Simultaneously, another mobile phone, Jio Lyf black color IMEI No. 911612859635906, with mobile no. 9354605366, asserted to be live-connected with mobile no. 9990735184, was found/seized, on which betting sounds are asserted to have been heard at that point in time (रेट भाव लगाने की आवाज़ आ रही थी). Further, as per the prosecution, several other mobile phones were found at the spot along with the mobile bearing no. 9899500020, whereupon, Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 4 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:00:11 +0530 appellant, Harminder was attending a call at that point in time. Correspondingly, amongst other items, upon the said laptop of Dell company model P63F, the appellant, Gurdeep Kapoor is asserted to have made entries of satta/gambling and till then, 29 (twenty nine) entries have been proclaimed to have been made. Correspondingly, in one of the two diaries found at the spot, records of match from a period between 28.05.2019 till 05.06.2019 is stated to be found recorded (पास में ही दो diaries रखी थी जिसमें से एक में दिनांक 28/05/2019 से 05/06/2019 तक के match का हिसाब दर्ज है). The raiding team is further stated to have found; 2 (two) blue pens, one calculator, 1 (one) laptop, 1 (one) extension board, 6 (six) mobile charger and some cash, cumulatively amounting to Rs. 10,500/- (Rupees Ten Thousand Five Hundred only, 21 (twenty one) notes of Rs. 500/- (Rupees Five Hundred only) each), strewn on the bed at the spot. The said mobile phones, diaries, mobile chargers, calculator, pens, cash amount, etc., are concurrently, stated to have been seized and handed over to the IO, upon his arrival. Further, upon the IO's conclusion of investigation in the instant case, including recording of statements of various witnesses, chargesheet was filed by the concerned IO before the concerned court/Ld. MM in the instant case.
2.2. Significantly, upon the filing of chargesheet and registration of the case, Ld. MM/Ld. Trial Court, vide its order dated 19.09.2019, took cognizance of the offences specified therein/under the chargesheet. Subsequently, vide order dated 28.09.2019, notice under Section 251 Cr.P.C. for the offences under Sections 3 and 4 of the Gambling Act was framed against the appellants to which, the appellants pleaded not guilty and claimed trial. Appositely, during the course of trial, prosecution examined Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 5 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:00:15 +0530 six witnesses (PWs), i.e., PW-1/ASI Anil Kumar, PW-2/HC Atul, PW-3/ASI Ajeet Singh, PW-4/HC Tarun, PW-5/HC Adesh, and PW-6/ASI Rajeev Kumar/IO. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellants/accused persons under Section 313/281 Cr.P.C. on 06.09.2023, as well as on conclusion of arguments on behalf of the parties, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellants guilty of the offences punishable under Sections 3 and 4 of the Delhi Public Gambling Act, 1955/Gambling Act, sentenced them in the manner, as noted hereinabove.
3. Learned Counsel for the appellants vehemently contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their setting aside at the outset. In this regard, Ld. Counsel outrightly submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous gaping holes, infirmities, and contradictions in the testimonies of prosecution witnesses, making the entire prosecution story unworthy of credence, not appealing to the senses of a prudent man. It was further submitted by Ld. Counsel for the appellant that the Ld. Trial Court failed to appreciate the facts and circumstances of the case and even failed to consider the submissions of the appellants as well as erred in convicting the appellants. As per the Ld. Counsel, the Ld. Trial Court even failed to appreciate the cardinal principle of law that benefit of doubt must accrue in favour of the appellants herein. In this regard, Ld. Counsel vehemently argued that in the present case, the prosecution failed to prove the allegations against the Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 6 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:00:19 +0530 appellants as there is clear lack of evidence against the appellants, despite which, as per the Ld. Counsel, benefit of doubt was wrongly, not accorded to the appellants by the Ld. Trial Court. Ld. Counsel further submitted that the Ld. Trial Court failed to appreciate that there was no direct or indirect incriminating material against the appellants by which, it would be proved that the appellants were playing satta or engaging in gambling/gambling activities or running a gaming house, as otherwise held by the Ld. Trial Court. It was further submitted that nothing has been proved on record, including that even the articles asserted to be seized from the possession of the appellants were being used for gambling or mobile phones so recovered, belonged to the appellants.
3.1. Ld. Counsel for the appellants further fervently argued that the Ld. Trial Court committed grave error in holding the appellants guilty by considering the unreliable and poor evidence, adduced by the prosecution. In this regard, Ld. Counsel further asserted that in the entire case, no public witnesses were cited by the prosecution to prove the search, seizure or alleged recovery from the possession of the appellants. As per the Ld. Counsel, in the facts of the present case, testimonies of the prosecution witnesses, who are all police officials/formal witnesses and members of raiding team, are unreliable and do not prove the case of the prosecution against the appellants beyond reasonable doubt. Even otherwise, as per the Ld. Counsel, not only have any public witnesses/private persons, not been cited as prosecution witnesses, rather, the police officials have failed to demonstrate any sincere attempts/endeavor to join any such persons in the process of search and seizure in the instance case, as Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 7 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:00:23 +0530 mandated under law. As per the Ld. Counsel, there serious non- compliance of the provisions under Section 100 Cr.P.C. in the instant case and the police officials, though, asserted that they endeavored to join public persons in search and seizure, however, even the names or particulars of such persons have been recorded by the police officials in question/by any members of the raiding team. Even otherwise, as per the Ld. Counsel there are gross illegalities in the search and seizure process. In particular, as per the Ld. Counsel, it may be observed from a perusal of the seizure memos and other documents asserted to be prepared on the spot, that the same, bear the particulars of FIR number in question, even prior to the registration of the said FIR. Ergo, under such circumstances, Ld. Counsel zealously contended that a possibility of such documents being subsequently prepared at the police station and being ante-date and ante-timed, cannot be ruled out. 3.2. Ld. Counsel for the appellants further vehemently contended that the impugned judgment and order were passed by the Ld. Trial Court against the principles of natural justice, contrary to the settled principles of law/judicial dictates as well as oblivious to the fact that the entire evidence produced by the prosecution does not inspire confidence or even was sufficient to hold the appellants guilty, beyond reasonable doubt. It was further submitted that the entire evidence produced by the prosecution does not inspire confidence to convict the appellants and that in the absence of any reliable material/evidence, it was not safe for the Ld. Trial Court to have passed an order of conviction against the appellants, on guess work and fanciful conjectures. As per the Ld. Counsel, the impugned judgment was passed by the Ld. Trial Court, arbitrarily and by way of pick and choose of material of Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 8 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:00:28 +0530 own convenience and without recording proper submissions of/on behalf of the appellants. Even otherwise, it was submitted by the Ld. Counsel that the order of sentence was also passed by the Ld. Trial Court, whimsically. In this regard, Ld. Counsel further vehemently argued that the punishment/penalty must not be retributive in nature, rather, humanizing, considering that condemning the appellants with severe sentence would subject the appellants' family members to grave depravity, which facts were not considered by the Ld. Trial Court. Consequently, the Ld. Counsel prayed that the present appeal(s) be allowed, and the impugned judgment and order be set aside. In support of the said contentions, reliance was placed upon the decisions in; Mohd.
Hashim v. State, 82 (1999) DLT 375, Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC); and Appabhai v. State of Gujrat, AIR 1988 SC 696.
4. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order were passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. Ld. Addl. PP for the State further submitted that the testimonies of the prosecution witnesses have not only been consistent, rather, of sterling quality, lucidly pointing out towards the only inference of guilt of the appellants. It was further submitted by the Ld. Addl. PP for the State that the appellants have even failed to prove their defence before the Ld. Trial Court by adducing any witnesses, independent/uninterested witnesses. Ld. Addl. PP for the State further contended that the omission of joining public witnesses, at the stage of apprehension and recovery from the appellant is not detrimental to the prosecution case, especially when the same Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 9 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:00:32 +0530 stands duly proved from the consistent testimonies of witnesses adduced by the prosecution. Even otherwise, as per the Ld. Addl. PP for the State, the appellant has failed to rebut the onus of prove, as envisaged under Section 4(2) of the Gambling Act. Lastly, it was submitted by the Ld. Addl. PP for the State that no grounds of any indulgence or relaxation in either the impugned judgment or even in the order of sentence/impugned order, passed against the appellants are established. Accordingly, Ld. Addl. PP for the State submitted that the present appeal(s) deserve(s) to be dismissed at the outset, as grossly malicious and devoid of merits.
5. The arguments of Ld. Counsel for the appellants as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record(s), thoroughly perused.
6. At the outset, this Court deems it prudent to enunciate the scope of jurisdiction of this Court in an appeal. In this regard, this Court deems it apposite to make a reference to the decision of the Hon'ble Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC 621, wherein the Hon'ble Court, while delving into the 'scope an ambit' of appellate court's jurisdiction inter alia noted as under;
"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 10 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:00:37 +0530 presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court..."
(Emphasis supplied)
7. Comparably, the Hon'ble Apex Court in Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785 , remarked in respect of the foregoing as under;
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. The judgment of the High Court must show that the Court really applied its mind to the facts of the case as particularly when the offence alleged is of a serious nature and may attract a heavy punishment."
(Emphasis supplied)
8. Markedly, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that the jurisdiction of this Court in appeal extends to reappreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to whether the said evidence can be relied upon or not. In fact, as aforenoted, court(s), while exercising appellate power is not required to consider the question of law, rather, also question of facts to affirmatively reach a conclusion of guilt or innocence of an accused. In fact, it is trite law1 that non-re- appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even the accused. Needless to reemphasize that the appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid 1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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principles, however, before proceeding with the determination of the rival contentions of the parties, it would be pertinent to reproduce the legal provisions under the Gambling Act/DPG Act/law, relevant for present adjudication, as under;
"2. Interpretation-(1) In this Act, unless the context otherwise requires-
(i) "Gaming" includes wagering or betting except wagering or betting upon a horse race when such wagering or 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 State Government set apart for the purpose, but does not include a lottery;
(ii) "Instruments of gaming" includes any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming, and any winning of prizes in money or otherwise distributed or intended to be distributed in respect of any gaming;
(iii) "Common gaming-house" means any house or room or tent or enclosure or vehicle or vessel or any place whatsoever in which any instruments of gaming are kept or used for gaming purposes -
(a) with a view to the profit or gain of any person owning, occupying or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel, place or instruments or otherwise howsoever;
(b) with or without a view to such profit or gain if the gaming for the purpose of which such instruments are so kept or used is gaming on any figures or numbers or dates to be subsequently ascertained or disclosed or on the occurrence or non-occurrence or the quality or extent of any natural event...
3. Penalty for owning or keeping or having charge of a gaming-house-Whoever being the owner or occupier or having the use of any house, room, tent, enclosure space, vehicle, vessel or place in the Union Territory of Delhi opens, keeps or uses the same as a c ommon gaming-house; and whoever being the owner or occupier of any such house, room, tent, enclosure, space, vehicle, vessel or place as aforesaid, knowingly or wilfully permits the Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 12 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:00:45 +0530 same to be opened, occupied, used or kept by any other person as a common gaming-house; and Whoever has the care or management of, or in any manner assists in conducting the business of any house, room, tent, enclosure, space vehicle, vessel or place as aforesaid, opened, occupied, used or kept for the purpose aforesaid; and whoever advances or furnishes money for the purpose of gaming with persons frequenting such house, room, tent, enclosure, space, vehicle, vessel or place;
Shall be liable to imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to one thousand rupees.
4. Penalty for being found in gaming-house-(1) Whoever is found in any such house, room, tent, enclosure, space, vehicle, vessel or place, playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found there present for the purpose of gaming, whether playing for any money, wager, stake or otherwise, shall be liable to imprisonment for a term which may extend to three months and shall also be liable to fine which may extend to five hundred rupees.
(2) Whoever is found in any common gaming-
house during any gaming or playing therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming.
*** *** ***
6. Finding cards, etc., in suspected houses, to be evidence that such houses are common gaming- houses-When any cards, dice, gaming tables, cloths, boards or other instruments of gaming are found in any house, room, tent, enclosure, space, vehicle, vessel or place entered or searched under the provision of the last preceding section or about the person of any of those who are found therein, it shall be evidence, until the contrary is made to appear that such house, room, tent, enclosure, space, vehicle, vessel or place is used as a common gaming-house and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Magistrate or police officer or any person assisting him.
*** *** ***
9. Proof of playing for stakes unnecessar.--It shall not be necessary, in order to convict any person of keeping a common gaming-house, or of being concerned in the management of any common gaming- house, to prove that any person found Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 13 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:00:50 +0530 playing at any game was playing for any money, wager or stake."
(Emphasis supplied)
10. Remarkably, from a conscientious perusal of the provisions under the Gambling Act, it is outrightly deduced that the said enactment aims to curb the evil(s) of public gambling as well as keeping of the common gaming houses, as also reflected under the preamble1 of the said enactment. Notably, Section 2(1)(i) of Gambling Act defines the term, 'Gaming' to include wagering or betting, except wagering or betting upon a horse race in the manner, specified therein. In turn2, the word 'bet/betting' as per its Dictionary meaning inter alia connotes, staking or pledging as between two parties upon the event of a contest or any contingent issue. Correspondingly, the term, 'bet' as per its Dictionary meaning denotes, 'a wager: something staked to be lost or won on the result of a doubtful issue.' Pertinent at this stage, to make a reference to the decision in Baldoo v. Rex, 1952 SCC OnLine All 25, wherein the Hon'ble High Court of Allahabad, while inter alia explicating the contours of term, 'gaming', under an akin situation, noted as under;
"...'Gaming' has been defined in the Act as including a wager or betting (except wagering or betting upon a horse-race and under certain circumstances). Gaming, wagering or betting have all one common feature, that the game is a game of chance and played with stakes. In order, therefore, that gaming be established, the prosecution must establish (1) that the game being played was a game of chance, and (2), that it was being played with stakes. The mere proof that some game of cards was being played and that some money was found in possession of the accused is not enough to establish that they were gaming."
(Emphasis supplied) 1 "An Act to Provide for the Punishment of Public Gambling and the Keeping of Common Gaming- Houses in the State of Delhi".
2Chimanlal v. The State, AIR 1958 Raj. 335.
Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 14 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:00:54 +0530
11. Markedly, Section 2(1)(ii) of the Gambling Act, further comprehensively defines the terms, 'instruments of gaming', to include any article used or intended to be used as a subject or means of gaming, or even any document, which is used or intended to be used as a register or record or evidence of any gaming, or even the proceeds of any gaming, and any winning of prizes in money or otherwise distributed or intended to be distributed in respect of any gaming. Clearly, the subjects of gaming, records/documents used to keep an entry of gaming events as well as the proceeds of such gaming events are all embodied under the definition of the terms, 'instrument of gaming' under the said provision. As aforenoted, Sections 3 and 4 of the Gambling Act penalize, owning or keeping or having charge of a gaming-house and being found in a gaming house, respectively. Ergo, it becomes imperative to refer to the definition under Section 2(1)(iii) of the said enactment, which defines ' common gaming house' as any house or room or tent or enclosure or vehicle or vessel or any place whatsoever in which, "any instruments of gaming are kept or used for gaming purposes" , with or without profits for the purposes, as envisaged under the said provision.
12. Apposite for the purposes of present discourse to also refer to the provisions under Section 6 of the Gambling Act, which provides for a presumption inter alia to the effect that when any cards, dice, gaming tables, cloths, boards or other instruments of gaming are found in any house, room, tent, enclosure, space, vehicle, vessel or place entered or searched under the provision under Section 5 of the said enactment or of/about the person of any of those who are found therein, that it shall be evidence, until the contrary is made to appear before the Court, such, "house, room, Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 15 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:00:58 +0530 tent, enclosure, space, vehicle, vessel or place is used as a common gaming-house and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Magistrate or police officer or any person assisting him." Notably, the Hon'ble Supreme Court in Krishnachandra v. State of M.P., 1963 SCC OnLine SC 206 , while elucidating the circumstances under which, presumption under Section 6 of the Gambling Act may be raised, observed as under;
"9. Having defined gambling house and instruments of gaming, the Act provides safeguards against victimisation of innocent persons by putting in certain checks when it proceeds to provide for the detection and prosecution of offenders against the Act. The offences are the keeping of a gaming house (Section 3), gaming in a gaming house (Section 4) and gaming in places to which public have access (Section
12). We are not concerned with the last. Section 5 confers the powers to enter and authorise police to enter and search places believed to be gaming houses.
This power is given to a District Magistrate, a sub- divisional Magistrate or a police officer not below the rank of a sub-inspector. The officer must be satisfied, upon credible information and after such inquiry as he may think necessary that there are good grounds for belief that any place is used as a gaming house before he makes a search. On entry the officer is empowered to take the persons present there into custody and to search them and to search the place and seize all things reasonably suspected to have been used for the purpose of gaming. Pausing here, it is clear that the power is given to superior officers who are expected to act reasonably and after due satisfaction. But the matter does not end there. After the arrests and seizures have been made the officer who entered the place and seized the articles has to satisfy the Court that his suspicions were based on reasonable grounds and it is only then that the burden is shifted to the accused to prove his innocence. Though the word used in Section 6 is "suspecting" in actual proof this suspicion must be demonstrated to be reasonably based. The safeguards, thus, are -- (a) the existence of credible information, (b) the seizure of articles suspected to be instruments of gaming which bear out the information on which action is taken, and (c) proof to the satisfaction of the Court that there are Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 16 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:01:02 +0530 reasonable grounds for holding that the articles seized are instruments of gaming. Once the house is shown to the satisfaction of the Court to be a gaming house the law leaves any one found in it during any gaming, to explain his presence on pain of being presumed to be there for gaming."
(Emphasis supplied)
13. Conspicuously, in the aforesaid dictate, the Hon'ble Apex Court in unambiguous terms asserted that considering that the enactment/Gambling Act aims to root out the evil of gambling, which is quite rampant and considering that gaming houses flourish as profitable business, which are difficult to be detected and perceived, law inevitably provides for a special procedure. However, as per the Hon'ble Court, when the Act/Gambling Act itself envisages sufficient safeguards to ensure that its provisions are not exploited in the hands of unscrupulous persons, the said safeguards/precautions are required to be duly considered and followed. Pertinent at this stage to further refer to the decision of the Hon'ble Madhya Pradesh High Court in Rambharti v. State of M.P., 2006 SCC OnLine MP 151, wherein the Hon'ble Court while refusing to raise a presumption under Section 6 of the Public Gambling Act, 1867 (pari materia to Section 6 of DPG Act), noted as under;
"6. The learned counsel for the applicants/ accused has argued that since money, carpet and playing cards were recovered no presumption under section 6 of the Act can be drawn. Merely because these articles and money was recovered it cannot be said that the accused No. 2 to 11 were with the aid of money playing gamble. These articles are so common that they are always available in every house. There is no iota of evidence that accused were gambling and accused Rambharti was using the house as gambling house. There is no evidence to show that accused was making profit and charging commission for the use of the house for the purpose of gambling. The Officer S.P. Mishra who led the raid party and conducted seizer of the articles etc. was not examined in the Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 17 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:01:07 +0530 Court. FIR has also not been proved by the prosecution. Hence merely because some money, playing cards and carpet were recovered, no presumption can be drawn under section 6 of the Act that the house was being used as gambling house and accused persons were gambling."
(Emphasis supplied)
14. Consequently, being mindful of the aforenoted judicial dictates and principles, this Court would proceed with the evaluation of the material placed on record of the Ld. Trial Court. Relevantly, in order to appreciate the prosecution's case against the appellants, it would be apposite to outrightly make a reference to the testimony of the complainant, PW-3/ASI Ajeet Singh No. 189 Special Cell, Janakpuri, who asserted before the Ld. Trial Court that on 06.06.2019, he was posted as ASI in Special Staff Maurice Nagar, Delhi and that on the said day, he/PW-3, along with HC Atul, Ct Ajay, Ct. Vineet along with secret informer, in two private vehicles, left for the spot. Further, as per PW-3, at around 03:00 p.m., the secret informer pointed out towards, H. No. D-416 Nehru Vihar, Timarpur and at the instance of the said secret informer, PW-3 proclaimed that he did the recce of the said house. Thereupon, PW-3 is asserted to have dispersed the police officials near at the spot and subsequently proceeded to the Office of the DCP to obtain/fetch the search warrant. Further, as per PW-3, after some time at around 04:00 p.m., he returned to the spot along with the search warrants (Ex. PW3/A) and briefed all the raiding staff regarding the information given by the secret informer. PW-3 further deposed that in the meantime, Ct. Tarun also reached at the spot and he/PW-3 briefed Ct. Tarun and made him a part of the raiding party. As per PW-3, he also requested the passers-by to join the raiding party, however, no one agreed and left the spot without disclosing their names and addresses. It was further proclaimed by Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 18 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:12 +0530 the complainant that due to paucity of time, he/PW-3 could not serve any notice to the said public persons and commenced with the proceedings. It was correspondingly deposed by PW-3, as under;
"...On at about 4:10 PM, I along with other raiding party entered the ground floor of H. No. D-416 Nehru Vihar, Timarpur where when we entered in a room which was situated on a ground floor two people were sitting on a bed. I informed them regarding the raid and show search warrant. I made enquiry with them in which they disclose their name Harminder and Gurdeep (witness correctly identified both the accused who are present in a court room today). Both these persons were looking towards the laptop in which there was a software open by the name of the Batting Assistant and their names details were mentioned in that software and one mobile phone which was connected through WiFi and there was no SIM in it in which live telecast of Australia vs. West Indies World Cup Cricket Match was going on. There was another mobile phone Jio Lyf black colour in which SIM no. 9354605366 was activated and voice of betting were coming from it. The said phone was live and it was connected with mobile no. 9990735184 and with other mobile E63 Black colored Nokia Mobile No. 9990144459, E63 Nokia Red and Black colored, 2 Intex mobile phone Black colored, Apple white 9899500072, Apple white 9312393226, Black Berry Mobile No. 9999644459, Nokia Black colored Mobile No. 9899500020 on which accused Harminder were attending the call and on a bed there was a laptop of Dell company model P63F on which Gurdeep was making an entry and in total there was 29 entry was already made. There were two diaries in which entry regarding for the betting from 28.05.2019 to 05.06.2019 were mentioned and these diaries were opened in which entries were making regarding the current match. Two blue pen, one calculator, one laptop charger, one extension board, six mobile charger and some currency notes in total 10,500/- (in denomination of 500*21). Thereafter, the articles which were used in betting i.e., 10 mobile phones, 2 diaries, 6 mobile chargers, 1 calculator and 2 pens were put into a transparent plastic container and sealed with doctor tape and prepared a pulinda and the name was given S. No. 1. The cash which was recovered from the possession of the accused person was put into a transparent plastic container and sealed Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 19 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:15 +0530 with doctor tape and prepared pulinda which was given name S. No. 2. The laptop, laptop charger and extension board were put into a transparent plastic container and sealed with doctor tape and the container was named S. No. 3. All the pulindas were sealed with the seal of AS and after using the seal the same was handed over to HC Atul. All the pulidnas were seized vide seizure memo which is Ex. PW3/B bearing my signature at point A. Thereafter. I made inquiry with the accused persons in which they disclosed they already put bet of rupees 2 lakhs. After that, I prepared tehrir which is Ex. PW3/C bearing my signature at point A and handed over the same to constable Tarun for getting the FIR registered. After some time, constable Tarun returned back at the spot along with computerized copy of FIR and original tehrir and in a meantime, ASI Rajeev Kumar also reached at the spot. Constable Tarun handed over the computerized copy of the FIR and original tehrir to ASI Rajeev Kumar. Thereafter, I produced case properties along with accused persons before ASI Rajeev Kumar and narrated the whole incident to him. I also handed over seizure memo which I prepared on which IO Rajeev Kumar mentioned the FIR number. (Witness correctly identified both accused persons present in the court room today). After that, I left the spot..."
(Emphasis supplied)
15. Notably, during the course of his deposition, PW-3/ ASI Ajeet also identified the case property as Ex. P1 [10 (ten) mobile phones, 2 (two) diaries, 6 (six) mobile charges, 1 (one) calculator and 2 (two) pens], Ex. P2 [21 (twenty one) currency notes of Rs. 500/- (Rupees Five Hundred only) denominations only, cumulatively amounting to Rs. 10,500/- (Rupees Ten Thousand Five Hundred only)] and Ex. P3 [laptop of Dell make black in colour, laptop charger and extension board], before the Ld. Trial Court, as the articles recovered from the possession of the appellants/accused persons. Significantly, PW-2/HC Atul No. 226 and PW-4/HC Tarun No. 1301, deposed in similar terms as that of PW-3/ASI Ajeet Singh before the Ld. Trial Court, inter alia affirming themselves to be a part of the raiding team and joining Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 20 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:20 +0530 the raiding team, respectively; appellants being found indulging in gambling activities; Ct. Tarun reaching the concerned police station with tehrir and getting the FIR registered in the instant case; and of recovery of the aforesaid articles from the possession of the appellants. In so far as PW-1/ASI Anil Kumar is concerned, he asserted that on 06.06.2019, when he/PW-1 was posted at PS Timarpur and working as DO from 04:00 p.m. to 12:00 midnight, at around 08:15 p.m., Ct. Tarun came to PS along with original tehrir and handed over the same to him/PW-1 for the registration of FIR. Further as per PW-1, he/PW-1 reduced the said information to DD No. 37A (copy exhibited as Ex. PW1/A) and the same was marked to ASI Rajeev/PW-6 for enquiry, who went to the place of incident. Correspondingly, as per PW-1, on the basis of the said information, the instant FIR came to be registered (copy of FIR is Ex. PW2/B) and also issued a certificate under Section 65B of the Indian Evidence Act, 1872/Evidence Act (Ex. PW1/C). Lastly, as per PW-1, the copy of FIR and original rukka was handed over to Ct. Tarun to further handover the same to ASI.
16. Here, it is further pertinent to observe that PW-5/HC Adesh produced and proved the entry regarding the deposit of case property in malkhana vide register no. 19, bearing Entry No. 2862 [Ex. PW5/A(OSR)] as well as proclaimed that the case property was deposited in the malkhana, as per the said record(s) by ASI Ajeet (PW-3). Apposite for the purpose(s) of present discourse, to refer to the testimony of PW-6/ASI Rajeev Kumar, who proclaimed in his testimony before the Ld. Trial Court as under;
"On 06.06.2019, I was posted as ASI at Special Staff North District, Maurice Nagar. On that day, DO informed me that the investigation of the present case was marked to me. Thereafter, I went at the spot i.e., H. No. D-416, Nehru Vihar, Timar Pur, Delhi and met ASI Ajeet, Ct. Manjeet, Ct. Vineet, Ct. Ajay and HC Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 21 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:01:24 +0530 Atul who had apprehended 2 persons namely Gurdeep and Harminder and were in the possession of 3 pullindas of case property. ASI Ajeet narrated the incident to me and handed over the case property and custody of accused to me. ASI Ajeet told me that Ct. Tarun had left the spot to register the FIR at the PS. Thereafter, at the instance of ASI Ajeet I prepared site plan which is Ex. PW6/A bearing my signature at point A. After some time, Ct. Tarun returned at the spot and handed over the computerized copy of FIR and original tehrir to me. Thereafter, I recorded the statement of ASI Ajeet and discharged him. I arrested both accused persons vide arrest memos which are already Ex. PW2/A and Ex. PW2/B bearing my signatures at point C respectively. I also recorded the disclosure statement of accused persons which are already Ex. PW2/C and Ex. PW2/D bearing my signature at point C. As the offence was a bailable one, both accused persons were released on police bail vide bonds Ex. PW6/B and Ex. PW6/C bearing my signatures at points A and B on both documents. Thereafter, I along with other police officials came to PS Timar Pur and deposited the case property in the malkhana. The DD entry regarding the arrest and bail of the accused persons was made. Thereafter, I recorded the statements of Ct. Tarun and HC Atul at the special staff office U/s 161 Cr.P.C. and discharged them. Thereafter. I prepared the charge-sheet and filed the same before the concerned court for the judicial verdict.
I can identify the accused persons if shown to me. Accused persons Gurdeep and Harminder are present in the court today and correctly identified by the witness..."
(Emphasis supplied)
17. Markedly, the aforesaid prosecution witnesses were thoroughly cross examined by/on behalf of the appellants. Further, the appellant, namely, Gurdeep Kapoor in his statement under Section 313 Cr.P.C. inter alia avowed as under;
"...Q.4 It is in evidence against you that at about PW-3 ASI Ajit Singh along with raiding party entered ground floor of H. No. D-416, Nehru Vihar, Timarpur and you alongwith your associate Harminder Singh were sitting on a bed and were informed about the raid by PW3 ASI Ajit Singh and search warrant was shown. What do you have to say?
Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 22 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:27 +0530 Ans. We were having the meal and they came from the backside and caught us.
*** *** *** Q.7 It is in evidence against you that there was another mobile phone Jio Lfy Black colour in which sim no. 9354605366 was activated and voice of betting was coming from it. The said mobile was connected with mobile no. 9990735184, E-63 Black coloured Nokia mobile no. 9990144459, E 63 Nokia Red and Black Coloured, 2 Intex Black coloured Mobile phones, Apple white 9899500072, Apple white 9312393226, Blackberry mobile no. 9999644459 and Nokia Black coloured mobile no. 9899500020 on which your co-accused Harminder Singh was attending call. What do you have to say? Ans. It is incorrect.
Q.8 It is in evidence against you that on a bed there was a laptop of dell company model P63F on which you were making entries and total 29 entries were already entered. What do you have to say? Ans. It is incorrect. The laptop was taken out from the side table attached to the bed.
Q.9 It is in evidence against you that there were two diaries containing entries regarding betting from 28.05.2019 to 05.06.2019 and also entries were made regarding the present match. Two blue pen, one calculator, one laptop charger, one extension board, six mobile charger and some currency notes in denomination of Rs. 500/- (total 21) were found. What do you have to say?
Ans. It is incorrect. The amount was taken out from the back pocket of pant of Harminder Singh. The police officials made me to do entries in the book in their office.
*** *** *** Q.21 It is in evidence against you that you made a disclosure statement Ex. PW-2/D and your co-accused Harminder Singh made a disclosure statement Ex PW- 2/D. What do you have to say?
Ans. It is incorrect. We were made to sign certain papers.
*** *** *** Q.24 Do you claim the case property i.e mobile phone make Jio Lfy, Dell laptop, Intex golden mobile phone, 2 E-63 Nokia Black mobile phone, 2 Intex 91 Black Mobile phones, 2 Apple white mobile phones, Blackberry mobile phone, Nokia Black coloured mobile phone, 2 diaries, 2 pens, 1 calculator, 1 laptop charger, 1 extension board, 6 mobile charger and Rs. 10,500/-?
Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 23 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:01:31 +0530 Ans. It is correct. *** *** *** Q.26 Do you have anything else to say? Ans. One Amit who is in police has falsely implicated me in the present case..." (Emphasis supplied)
18. Correspondingly, the appellant, namely, Harminder Singh, in his statement recorded in terms of the provisions under Section 313 Cr.P.C., inter alia declared as under;
"...Q.4 It is in evidence against you that at about PW-3 ASI Ajit Singh along with raiding party entered ground floor of H. No. D-416, Nehru Vihar, Timarpur and you alongwith your associate Gurdeep Kapoor were sitting on a bed and were informed about the raid by PW3 ASI Ajit Singh and search warrant was shown. What do you have to say?
Ans. It is incorrect.
*** *** *** Q.7 It is in evidence against you that there was another mobile phone Jio Lfy Black colour in which sim no. 9354605366 was activated and voice of betting was coming from it. The said mobile was connected with mobile no. 9990735184, E-63 Black coloured Nokia mobile no. 9990144459, E 63 Nokia Red and Black Coloured, 2 Intex Black coloured Mobile phones, Apple white 9899500072, Apple white 9312393226, Blackberry mobile no. 9999644459 and Nokia Black coloured mobile no. 9899500020 on which you were attending call. What do you have to say?
Ans. It is incorrect.
Q.8 It is in evidence against you that on a bed there was a laptop of dell company model P63F on which your co-accused Gurdeep Kapoor was making entries and total 29 entries were already entered. What do you have to say?
Ans. It is incorrect.
*** *** *** Q.24 Do you claim the case property i.e mobile phone make Jio Lfy, Dell laptop, Intex golden mobile phone, 2 E-63 Nokia Black mobile phone, 2 Intex 91 Black Mobile phones, 2 Apple white mobile phones, Blackberry mobile phone, Nokia Black coloured mobile phone, 2 diaries, 2 pens, 1 calculator, 1 laptop charger, 1 extension board, 6 mobile charger and Rs. 10,500/-?
Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 24 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:01:35 +0530
Ans. No. But there was one phone which belonged to me.
*** *** *** Q. 26 Do you have anything else to say?
Ans. No incident took place on that day..."
(Emphasis supplied)
19. Wherefore, in light of the foregoing, this Court would now proceed with the evaluation of the contentions raised on behalf of the appellants and that of Ld. Addl. PP for the State. As aforenoted, one of the primary contentions of the Ld. Counsel for the appellants is that in the series events which are stated to have occurred in the instant case, the FIR number could not have found a mention in the seizure memo and other documents, prepared at the spot. Notably, in order to buttress the said contention, Ld. Counsel for the appellants placed reliance upon the decision the Hon'ble High Court of Delhi in Mohd. Hashim v. State, (Supra.) and fervently argued that since the seizure memo was prepared prior in time to the registration of FIR in question, the same could not bear the FIR number in question that too, in same ink and writing. Noticeably, though, this Court is cognizant of the law pertaining to situations where the FIR number is specified under the documents, which are asserted to have come into existence prior to the registration of said FIR, not ruling out foul play in such case, however, the said principle would not come to the aid and rescue of the appellants in the instant case. The same is for the reason that from a scrupulous analysis of the seizure memo (Ex. PW3/B) in question, it is noted that the entire memo is typed with a blank space for the FIR number, which is filled in quite noticeably filled in hand. In this regard, it is apposite to further refer to the testimonies of PW-2/HC Atul, PW-3/ASI Ajeet Singh, PW-4/Ct. Tarun and PW-6/ASI Rajeev Kumar, who have all consistently Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 25 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:39 +0530 proclaimed in their respective testimonies that the entry of FIR number was made by PW-6/ASI Rajeev Kumar, when Ct. Tarun had returned to the spot and handed over the copy of FIR to him. Correspondingly, it is declared under the testimonies of the said witnesses that the arrest memos of the appellants (Ex. PW2/A and Ex. PW2/B) as well as their respective disclosure statements (Ex. PW2/C and Ex. PW2/D) were prepared subsequent to such handing over of the FIR copy by Ct. Tarun to ASI Rajeev Kumar. Accordingly, under such circumstances, the specification of FIR number on said documents, does not, in the considered opinion of this Court, appear to be doubtful, coming to the aid and rescue of the appellants, in the manner as proposed by the Ld. Counsel.
20. Notwithstanding the foregoing there are glaring omissions, lacunae and irregularities in the investigation, including search and seizure in the instant case, that need to be now mentioned at this stage. In fact, one of the striking irregularities observed in the instant case is that admittedly, the seal used for seizure of the case property in question is asserted by the prosecution witnesses, in particular, under the testimonies of PW-3/ASI Ajeet Singh as well as PW-2/HC Atul to have been handed over by PW-3 to PW-2, both being members of raiding team, after such seizure and sealing of the pullandas. In fact, it has nowhere come on record as to what was the final fate of the said seal and there is nothing on record to indicate in the slightest, any attempt made by PW-3 or PW-2 to eventually hand over the seal in question to any independent witness. Concomitantly, there is nothing on record to show as to when the seal in question was finally taken back from PW-2/HC Atul or if it remained with him forever. Clearly, when the seal in question, reasonably appears to Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 26 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:43 +0530 be within the reach of the police officials and the members of the raiding team, during the entire interval, the possibility of tampering with the case property cannot be ruled out in the instant case, which factor has not been considered by the Ld. Trial Court while passing the impugned judgment. Pertinent at this stage, to make a reference to the decision of the Hon'ble High Court of Delhi in Safiullah v. State (Delhi Admn.), 1992 SCC OnLine Del 516, wherein the Hon'ble Court, while confronted with the situation of akin kind, observed as under;
"11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.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. Since the Inspector Omveer Singh, appearing as P.W.-8, has tried to improve his statement in the Court, to my mind, no reliance can be placed on his statement, particularly when the Investigating Officer and the Moharrar Malkhana do not say anything about the deposit of the CFSL form with the Moharrar Malkhana. In these circumstances I am clearly of the view that the prosecution has failed to prove this link evidence to show that the sample parcel was not tampered with the anyone before it was examined by the C.F.S.L. and the benefit of the same must go to the appellant."
(Emphasis supplied)
21. The gravity of the aforesaid circumstances is accentuated by the fact that while both, PW-3/ASI Ajeet as well as PW-6/ASI Rajeev Kumar proclaimed that after the handing over of the sealed parcels containing the seized articles and upon recording of PW-3's statement, he/PW-3 left from the spot/was discharged. However, quite surprisingly, from the testimony of PW-5/HC Adesh as well as upon perusal of the relevant malkhana Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 27 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:47 +0530 deposit entry(ies) placed on record (Ex. PW5/A Colly.)), it is noted that the case property is proclaimed/demonstrated to have been deposited by PW-3/ASI Ajeet in the malkhana on the alleged date of incident, i.e., on 06.06.2019. Remarkably, such entry of malkhana register/register no. 19 as well as the testimony of PW-5 is grossly in variance with the testimony of PW-6/ASI Rajeev Kumar, who, as aforenoted, inter alia proclaimed in his deposition before the Ld. Trial Court that on the date of incident he/PW-6, "along with other police officials came to PS Timar Pur and deposited the case property in the malkhana..." Needless to mention that the deposit of case property in malkhana on the alleged date of incident finds no mention in the deposition of PW- 3/ASI Ajeet Singh. Accordingly, under such circumstances, the only conclusion which this Court can reasonably draw is that there are material variance in the testimonies of said witnesses as to the deposit of case property in question at the malkhana. In particular, considering the documentary records pertaining to the deposit of the case property at malkhana on the alleged date of incident, i.e., on 06.06.2019 by ASI Ajeet Singh/PW-3, the witnesses produced by the prosecution have miserably failed to elucidate as to how the property in question came into the possession of PW-3 once the same is asserted by PW-3 as well as PW-6 to have been handed over by PW-3 to PW-6 at the spot, upon reaching of PW-6 there and subsequent to PW-3 been proclaimed to have been discharged by PW-6 from the spot itself, post recording of his statement. Even otherwise, the deposit of case property in malkhana by the complainant, in the situation, accentuated by the prosecution being unable to explain the fate of seal/seal handing over in the instant case, does not rule out a possibility of tampering in the instant case.
Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 28 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:51 +0530
22. Another significant feature in the instant case, which heightens the gravity of circumstances and the manner in which the investigation was carried out by the concerned police officials is that, though, Ct. Tarun/PW-4 is asserted to have joined the investigation/raiding team upon him reaching at the spot in question, however, his circumstances of reaching at the spot or of him identifying the place where the raid was proposed to be conducted on the fateful day is not forthcoming from the material placed on record. It is further apposite to mention here that while PW-6/ASI Rajeev Kumar asserted in his deposition before the Ld. Trial Court that upon reaching the spot, he/PW-6 found/met, ASI Ajeet, Ct. Manjeet, Ct. Vineet, Ct. Ajay and HC Atul and that Ct. Tarun, subsequently, reached there/at the spot. However, as per PW-2/HC Atul and PW-3/ASI Ajeet Singh, the raiding team, is asserted to have comprised of HC Atul, Ct. Ajay, Ct. Vineet, ASI Ajeet Singh as well as secret informer, besides Ct. Tarun reaching on the spot, later on. Clearly, under such circumstances, presence of Ct. Manjeet at the spot or of the absence of the secret informer at the time of reaching of PW-6 at the alleged scene of incident is not forthcoming from the material placed on the record of the Ld. Trial Court. Needless to mention, prosecution made no endeavor to even produce the DD writers or to prove the constituent members of the raiding team, so constituted on the date of incident. Further, it is also observed from a perusal of the cross examination of PW-6 dated 18.08.2023, he/PW-6 admittedly never went inside the house of the appellants and that as per PW-6's own version, "...the accused persons were handed over to me just outside house no. D-
416. I prepared the arrest memos while standing near the road. Public persons were plying on the road. It is correct that I did not Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 29 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:01:55 +0530 ask any public persons to join the investigation..." Clearly, in the instant case, the entire prosecution story/case hinges on the version put forth by the police officials, who were members of raiding team, with neither any independent persons/public persons ever joined in the investigation, nor any independent investigation being conducted by the IO. Ergo, under such circumstances even the preparation of the site plan (Ex. PW6/A) and marking of place 'A' thereon by the IO, makes the same quite questionable, with the IO/ASI Rajeev Kumar admittedly never even entered to house/spot from which the appellants are stated to have been found or apprehended.
23. Ominously, in the instant case, the Ld. Trial Court in order to reach the conclusion of guilt of the appellants herein appears to have primarily relied upon the articles stated to have been seized from the possession of the appellants herein, which are asserted by the prosecution witnesses to be utilized for gaming purpose(s) or to keep a record of entries/proceeds obtained thereof. However, except for the oral deposition of the said prosecution witnesses, the contents of the material seized, in particular, the alleged 29 (twenty nine) entries, made on the laptop of Dell company, model P63F, by appellant, Gurdeep Kapoor as well as the diaries in which entry(ies) regarding for alleged betting from 28.05.2019 to 05.06.2019 are asserted to have been mentioned, have not been placed on the record of the Ld. Trial Court. Undoubtedly, the prosecution witnesses have identified the seized articles from the possession of the appellants herein. However, in the absence of production of such contents of the seized articles, in particular, in light of the aforenoted lacunae/omissions, it does not appeal to the senses of this Court as to how the prosecution was Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 30 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:01:58 +0530 able to ascertain that the seized articles were, in fact, could be reasonable held to be instruments of gaming. Needless to further mention that there is no material on record to attribute the ownership of the said seized articles on the appellants herein, except the statements of the accused persons/appellants themselves, recorded in terms of the provisions under Section 313 Cr.P.C., which as per the settled law 1, cannot/could not be considered to fill in the lacunae in the prosecution's case, rather, only used for corroborative purpose. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Mohan Singh v. Prem Singh, (2002) 10 SCC 236, wherein the Hon'ble Court observed as under;
"30. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant [(1969) 1 SCC 347: AIR 1969 SC 422] by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction."
(Emphasis supplied)
24. Accordingly, in light of the foregoing discrepancies/ omissions on the part of the prosecution witnesses, in order to successful bring home guilt of the appellants in the instant case, it was incumbent for the prosecution to prove the recovery of the alleged 'instruments of gaming' from the appellants by means of the testimony of independent witnesses in the present case, besides 1 Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 and Ashok Singh v. State of U.P, 2016 SCC OnLine All 290.
Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 31 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:02:02 +0530
to prove that the seized articles were, in fact, being used or intended to be used as a subject or means of gaming, or the documents/articles seized were used or intended to be used as a register or record or evidence of any gaming, or the seized articles were the proceeds of any gaming. However, as aforenoted, not only has the prosecution failed to adduce any independent witness, rather, even genuine endeavor on the part of the investigating authorities/police officials to join independent witnesses in the recovery process appear to be grossly wanting. The same is despite the fact that it is not the prosecution's case that no public witnesses were present on the spot. On the contrary, admittedly, as per PW-2, PW-3 and PW-4 public persons were present on the spot and as per PW-2 and PW-3, some public persons were asked by PW-3 to join the investigation, however, all of them are stated to have refused and left the spot. Despite the same, admittedly no notice was served to any such public person upon their refusal to join the investigation in the case, clearly demonstrating the absence of earnest attempts on the part of prosecution/investigating officers to take necessary steps at their end. At the same time, such omission on the part of the said witnesses when seen in conjunction with the aforenoted grave omissions, clearly casts a shadow of doubt on the recovery of alleged seized articles, asserted to be instruments of gaming from the appellants herein. Relevant in this regard to make a reference to the decision of the Hon'ble High Court in Anoop Singh v. State, 1992 SCC OnLine Del 218 , wherein the Hon'ble Court in an akin situation inter alia observed as under;
"...Apart from this material discrepancy, there is also discrepancy regarding the alleged efforts made by the police for joining the independent public witnesses. R.K. Chadha had been brought by the police from the police station while coming to the spot and it is stated by all the witnesses except the I.O. that Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 32 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.10.15 14:02:05 +0530 only some of the passers by were requested to join the raiding party and they declined expressing their own difficulties and had gone away, whereas the I.O. came up with the story that even the shop-keepers, whose shops were open at the time of occurence, had been requested to join but they had declined The other witnesses have categorically stated that no shop-keeer was asked to join the raided party.
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 shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers 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 I.P.C.
It is not possible to believe only the I.O. that some of the shop-keepers were requested to join the raiding party when all other officials appearing in the witness box stated that no shop-keeper was requested to join the raiding party."
(Emphasis supplied)
25. Correspondingly, in light of the foregoing, it is germane at this stage to deal with applicability of the presumption envisaged under Section 4(2) of the Gambling Act in the instant case. Quite intelligibility for the presumption under Section 4(2) of the Gambling Act to be raised, it is indispensable for the prosecution to first establish the place from where the accused person is asserted to have been found to be first established as a common gaming house, which in turn, inter alia depends on the prosecution's ascertain/proving that 'instruments of gaming' are kept or used for 'gaming' purposes at such house or room or tent or enclosure or vehicle or vessel or any place whatsoever. It is only after the prosecution has proved/established/fulfilled its initial Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 33 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:02:09 +0530 burden, onus would shift on an accused to rebut the same. However, as aforenoted, in the instant case, this Court cannot unambiguously reach a conclusion regarding the proof of spot being used as a common gaming house or being a place where instrument of gaming are kept, so as to raise the presumption under the said provision/Section 4(2) of the Gambling Act. Needless to further mention that in light of the aforenoted judicial dictates, in particular, that of the dictate of the Hon'ble Supreme Court in Krishnachandra v. State of M.P. (Supra.), inter alia in the absence of proof to the satisfaction of Court that there are reasonable grounds for holding that the articles seized are instruments of gaming. Needless to further note that the invocation of the presumption under Section 6 of the Gambling Act presupposes/is premised on the entry and seizure being carried out in compliance of the provisions under Section 5 of the said enactment, exemplified with the use of the words, "entered or searched under the provision of the last preceding section" under Section 6 of the Gambling Act. However, in the instant case, perusal of records would reveal that there has been a non-compliance of the provision under Section 5 of the Gambling Act, in so far as the entry and seizure in question was conducted by the officers of rank of ASI and under, whereas, the said provision inter alia specifically empowers the Superintendent of Police, "upon credible information, and after such enquiry as he may think necessary, has reason to believe that any house, room, tent, enclosure, space, vehicle vessel or place, is used as a common gaming-house", to either, himself enter, or by his warrant authorize any officer of police, "not below the rank of a Sub-Inspector" , to search, seize, arrest, etc. Quite evidently, under such circumstances, when the Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 34 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.10.15 14:02:13 +0530 delegation of warrants/authority has been made in contravention of the provision under Section 5 of the Gambling Act, in the considered opinion of this Court, the presumption envisaged under Section 6 of the Gambling Act would also not come to the aid and rescue of the prosecution case.
26. Comprehensibly, in light of the facts and circumstances noted hereinabove, the prosecution has not, in the considered opinion of this Court, been able to unwaveringly and 'beyond reasonable doubt', bring home the charges against the appellants herein. Further, considering the gross lacunae and omissions in the case of the prosecution, as noted hereinunder, this Court cannot irrefutably reach a conclusion of guilt of the appellants. Even otherwise, it is a settled law1 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favoring the accused must be accepted.
27. Conclusively, in view of the above discussion, the present appeals deserve to be allowed and are hereby allowed. As such, in light of the foregoing observations/discussion, this Court reiterates that from the facts and circumstances placed on record, the appellants cannot be determined to be guilty 'beyond reasonable doubt' of any offence(s) as charged and convicted/sentenced by the Ld. Trial Court. Consequently, the judgment dated 23.11.2023 and order of sentence dated 04.12.2023 (impugned judgment and order), passed by the Ld. Metropolitan Magistrate/Ld. MM-02, Central District, Tis Hazari Courts, Delhi, in case bearing; "State v. Harminder Singh & Anr., CR Case No. 12055/2019", arising out of FIR No. 91/2019, 1 Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 35 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.10.15 14:02:17 +0530
convicting and sentencing the appellants for the offences punishable under Section(s) 3/4 of the Delhi Public Gambling Act, 1955, in the manner as aforenoted, are hereby set aside. The appellants, namely, Gurdeep Kapoor and Harminder Singh, are hereby admitted to bail on, each, furnishing of a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) along with one surety of the like amount, as required under section 437A Cr.P.C. As requested, the bail bond be furnished within a period of one week from the date of this judgment.
28. Trial Court Record be sent back along with a copy of this judgment/order.
29. Appeal file(s) be consigned to record room after due compliance.
Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2024.10.15 14:02:23 +0530 Announced in the open Court (Abhishek Goyal)
on 15.10.2024. ASJ-03, Central District, Tis Hazari Courts, Delhi Crl. Appeal No. 03/2024 Gurdeep Kapoor v. State (GNCT of Delhi) Crl. Appeal No. 04/2024 Harminder Singh v. State (GNCT of Delhi) Page No. 36 of 36