Delhi District Court
State vs . Yogesh Jain Etc. on 26 April, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-02, DISTRICT
EAST, KARKARDOOMA COURTS, DELHI
Presided by: Mr. Vinod Joshi, DJS
State Vs. Yogesh Jain Etc.
FIR No. 197/2011
PS. Geeta Colony
U/s. 3/9/4/55 Gambling Act
JUDGMENT
1) CIS No. : 4314/2016
2) The date of commission of offence : 29.07.2011
3) The name of the complainant : SI R.N. Pathak
4) The name & parentage of accused : (1) Yogesh Jain
S/o Sh. Shashi Kant
(2) Nitesh Jain
S/o Sh. Shashi Kant Jain
(3) Dharmender Rohilla,
S/o Sh. Prakash Chand
5) Offence involved : U/s. 3/9/4/55 Gambling Act
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 26.04.2022
Date of Institution : 26.06.2012
Judgment reserved on: 25.04.2022
Judgment announced on : 26.04.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused persons have been sent to face trial with the allegations that on 29.07.2011, at about 02:56 PM to 07:40 PM at Second Floor, House No. 12/110, Geeta Colony, Delhi, within the jurisdiction of PS Geeta Colony, the accused Yogesh Jain was found owning or keeping or having charge of above-said FIR No. 197/2011 State Vs. Yogesh Jain Etc. 1 of 8 house which was used as a gaming house or playing Satta/Gambling and thus he committed offences punishable under Section 3/9/55 Gambling Act and further, the accused Yogesh Jain along with other accused persons were found playing Satta/Gambling in the said house and thus all the accused persons had committed offences punishable under Section 4/9/55 Gambling Act.
2. Upon completion of the investigation chargesheet under section 173 Cr.PC was filed on behalf of the IO and the accused persons were consequently summoned. A formal notice for the offence punishable under Section 3/9/55 Gambling Act was served upon the accused Yogesh Jain and for offence under Section 3/4/9/55 Gambling Act against all the accused persons including accused Yogesh Jain, to which they pleaded not guilty and claimed trial.
3. In order to prove its allegations against the accused persons, the prosecution has got examined four witnesses.
4. PW 1 ASI Khem Chand deposed that he was posted as HC at PS Geeta Colony. He deposed that on that day at about 05.50 pm, one secret informer came to PS and met SI Yogesh and informed that if raid is conducted at house no. 13/110, Geeta Colony, some persons were playing gambling and could be apprehended. Thereafter, SI Yogesh Kumar intimated the information to the SHO and the SHO informed the same to ACP. Therefore, ACP had directed to take appropriate action. Thereafter, at the direction of SHO, SI Yogesh had prepared a raiding party consisting of PSI Avdhesh Kumar, Ct. Raj Kumar, Ct. Mahipal, Ct. Deepak and myself. Thereafter, they all reached at house no. 13/110, Geeta Colony at our private vehicles. Secret informer also accompanied them and signalled towards the house situated at 3rd floor and told that it was the same place where gambling was going on. Thereafter, PSI Avdhesh went for search warrant at the office of the DCP. He further deposed that they all remained there. After some time, PSI Avdhesh Kumar along with search warrant came back at the spot. SI Yogesh Kumar and PSI Avdhesh Kumar asked the public persons to join the investigation but no body turned up and left the place without disclosing their names and addresses. He further deposed that, they entered into the abovesaid FIR No. 197/2011 State Vs. Yogesh Jain Etc. 2 of 8 premise where three persons were present. Thereafter, search warrant was shown to those persons and reason for the raid was also told to those persons. He further deposed that all the three persons were playing gambling at the match between India and England. The match was going on a laptop and a TV. This witness has correctly identified the accused persons namely Yogesh Kumar, Nitish and Dharmender present in the court that day. He further deposed that all the accused persons were also making entry in the laptop and also talking on mobile phone. He further deposed that all the accused persons had told that if England wins they would get some money and if India win they would get different amount of money. Accused persons also told that if the match will ended as draw there would be some loss. He further deposed that all the case properties i.e. two laptops, one TV make Videocon and some mobile phones were seized vide seizure memo Ex. PW1/A, Ex. PW1/B and Ex. PW1/C, and the case properties were kept in three different pullandas and sealed with the seal of YK. Thereafter, the seal after use was handed over to Ct. Raj Kumar. At that stage, MHC (M) produced sealed white bag consisting laptops make Compaq, one charger, a charger point, TV make Videocon and 23 mobile phones of different companies and PW1 correctly identified the same. PW1 was duly cross-examined by Ld. Counsel for the accused.
5. PW2 HC Rajkumar examined in chief and he deposed the facts that are similar to the testimony of PW1 and he was duly cross-examined by Ld. Counsel for accused.
6. PW3 ASI Pramod Kumar is the Duty Officer in the present case. He deposed that he brought the rukka by Ct. Raj Kumar and on receipt of that rukka he registered the FIR. Thereafter, PW3 made endorsement on the rukka and after the registration of the FIR, he handed over the copy of FIR to SI R N Pathak.
7. PW4 SI Yogesh Kumar deposed that on 29.07.2011 at about 05.50 pm one secret informer me him and told about some persons betting on cricket match on the second floor of House no. 13/110, Geeta Colony. He further deposed FIR No. 197/2011 State Vs. Yogesh Jain Etc. 3 of 8 that after consulting his senior officials, DD No. 24 A was registered. He further deposed that he constituted a raiding party comprising of himself, SI Avdhesh Kumar, Ct. Deepak, Ct. Raj Kumar, HC Khem Chand and other officials. He further deposed that after reaching the the said address, SI Avdhesh who was in plain clothes conducted the raids of the said premises. He further deposed that he prepared a rough site plan and went to the DCP office for search warrant. He further deposed that he returned to the spot and joined the raiding party. He further deposed that there were two laptops and 24 mobile phone connected to a large extension using which the accused persons were betting on the Test Match being played between India and England. He further deposed that a television of Videocon brand was also there in the room on which the match was being telecasted. Thereafter, PW4 SI Yogesh Kumar cross-examined by Sh. Ashutosh Mishra, Ld. Counsel for accused persons.
8. PW5 SI Ram Niranjan Pathak was examined in chief and his testimony is similar to the testimony of SI Yogesh Kumar and he was cross-examined by Ld. Counsel for accused.
9. After prosecution evidence was concluded the statements of accused persons were U/s 313 Cr.P.C read with 281 Cr.P.C were recorded wherein they refuted the allegations levelled against them in toto. Accused persons chose not to lead any defence evidence in his favour.
10. I have heard the rival submissions and carefully perused the record.
APPRECIATION OF EVIDENCE :
11. The relevant extract of the cross-examination of witnesses is as under:
a) PW-1 ASI Khem Chand has deposed during his cross examination that there were different occupants who were residing in the premises in question and admitted that no person of neighbourhood and those occupants who were residing in the said house were made member of raiding party. He further FIR No. 197/2011 State Vs. Yogesh Jain Etc. 4 of 8 deposed that no notice under Section 174 IPC was served upon by the IO to the passersby who had refused to join the investigation.
b) PW-3 SI Vijay Kumar has also deposed during his cross examination that no notice under Section 174 IPC was served upon by the IO to the passersby who had refused to join the investigation. He further deposed that he cannot tell the about the description of the alleged house where the alleged raid was conducted and they did not mention in DD entry 24A that they had left for the spot on their own vehicles.
c) PW-4, SI R.N. Pathak has deposed during his cross examination that no notice under Section 174 IPC was served upon by the IO to the passersby who had refused to join the investigation. He further deposed that he did not make any departure entry before leaving for the spot upon receiving the FIR.
12. In case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, the Hon'ble High Court of Punjab & Haryana held as following:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had FIR No. 197/2011 State Vs. Yogesh Jain Etc. 5 of 8 refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
13. Hon'ble Supreme Court in a judgment reported as Hemraj vs State of Haryana [AIR 2005 SC 2110] observed as follows:
"...the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case..."
14. Burden lies on the prosecution to establish that the association of any person as Public witness was not possible in the facts and circumstances of this case. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to seen with suspicion.
15. There is nothing in the testimony of any of the witnesses whether any sincere efforts were made by them to join the independent witness. The only explanation accorded by the IO is that they refused to join the proceedings. Such an ordinary reply/ explanation of the IO does not support the case of prosecution in any manner. The IO could have very well taken down the names of the public persons, who were asked to join the raid and in case of such refusal to render assistance, could have proceeded against them as per Section 187 of IPC.
16. Further, from the record, it appears that after apprehension of the accused and before taking the formal/casual search of the accused, police FIR No. 197/2011 State Vs. Yogesh Jain Etc. 6 of 8 official(s) had not offered their own search to the accused before taking his search. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty v. State of Orissa . In this case relying upon the judgment of the Supreme Court in State of Bihar v. Kapil Singh AIR 1969 SC 53 : (1969 Cri. L.J 279) it has been held that one of the formalities that has to be observed in searching a person is that the searching officer and others assisting him should give their personal search to the accused before searching the person of the accused. This rule is meant to avoid the possibility of implanting the object which was brought out by the search. The police officials have to offer themselves for personal search by the accused before conducting the personal search of the accused. The court hereby concludes that the possibility of implanting the allegedly recovered material is not ruled out in the present case.
17. In the present case, during cross-examination of PW4 SI Yogesh Kumar has admitted that he had made alteration/addition upon the seizure memos after receiving the copy of FIR. At the same time, the PW5 SI R.N. Pathak during his examination-in-chief has submitted that he has entered the particulars of the FIR upon the seizure memos. The testimonies of PW4 and PW5 are contradictory and the admission as to the addition of particulars upon the seizure memos further make the alleged recovery doubtful. It also casts doubts upon the chain of events put forward by the prosecution.
18. It is noticed that nothing has brought on record as to the fact that the accused Yogesh Jain was owning or keeping or having charge of the above- said house. The prosecution has failed to bring any evidence in this respect so as to connect the accused Yogesh Jain with the place of alleged recovery i.e. House No. 13/110, Geeta Colony, Delhi.
19. In view of the above discussion, the court is of the view that the prosecution has failed to prove its case beyond reasonable doubt and the accused persons deserve the benefit of doubt. Accordingly, the accused Yogesh Jain is FIR No. 197/2011 State Vs. Yogesh Jain Etc. 7 of 8 hereby acquitted for the charged offence punishable u/s 3/9/55 Gambling Act and further all the accused persons are acquitted in respect of the charged offence punishable u/s. 3/4/9/55 Gambling Act.
File be consigned to Record Room.
Digitally
signed by
Announced in the Open Court Vinod Vinod Joshi
on 26.04.2022 (VINOD JOSHI)
Date:
Joshi 2022.04.25
MM-02(E)/KKD COURTS/DELHI
17:17:33
+0530
FIR No. 197/2011 State Vs. Yogesh Jain Etc. 8 of 8