Delhi District Court
State vs . Satish Bansal Etc. on 8 November, 2012
FIR NO.197/01 S/V Satish Bansal etc.
IN THE COURT OF SH. D.K. JANGALA; ACMMNW/ROHINI COURT/DELHI
State Vs. Satish Bansal etc.
FIR No. 197/01
PS: Shalimar Bagh
U/s 3/4/9/55 Delhi Public Gambling Act.
Case ID No. 0240R0144052006
JUDGEMENT
A) Sl. No. of the case : 06.10.01
B) The date of commission : 03.04.01
of offence
C) The name of the complainant : Inspector N.K. Sharma
D) The name & address of accused : 1. Satish Bansal S/O Sh. R.D. Bansal R/O D139, Antriksh Apartment, Rohini Delhi.
2. Anand Garg S/O Sh. Ram Kishan Garg.
R/O CA47/D, Shalimar Bagh, Delhi.
3. Avnish Kumar S/O Sh. Bhagwan Saran Shashtri R/O PktB/4/48C, Ashok Vihar, Delhi.
4. Devender Kr. Dutta S/O Sh. Virender Kr.
DuttaR/O M450, Guru Harkishan Nagar, Paschim Vihar, Delhi.
5. Rajiv Verma S/O Sh. Suresh Chand Verma R/O X4122, Shanti Mohalla, Gandhi Nagar, Shahdara, Delhi.
6. Chander Shekhar S/O Late Sh. Babu Ram, R/O 1960, Gali Leela Wali Sita Ram Bazar, Delhi.
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FIR NO.197/01 S/V Satish Bansal etc.
7. Ashwani Kumar Goel S/O Sh. Ram Dhari
Goel, R/O B10/J, Sector3, Rohini,Delhi
E) Offences complained of : U/s 3 & 4 Delhi Public Gambling Act.
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 08.11.12
Date of Institution: 06.10.01
Judgment reserved on: 31.10.12
Judgment announced on: 08.11.12
THE BRIEF REASONS FOR THE JUDGEMENT:
1. The present case FIR NO. 197/01 was registered in P.S. Shalimar Bagh for commission of the offence punishable U/S 3/4/9/55 of Delhi Public Gambling Act ( herein after called as D.P.G.Act). It is alleged against all the accused persons that they were found present and assisting each other in gaming, accepted stake money on a cricket match being played between India and Austrailia and accepted Rs.500/ as stake money from decoy customer SI Sandeep Kumar at H. No. JP2, Pitam Pura, Delhi which was being used as a common gaming place by all the accused persons of you and a sum of Rs. 15,60,000/ ( Rs. Fifteen lacs sixty thousand only) alongwith a telephone, six mobile phone and four calculators and one attaichi containing Rs.90,000/ ( Rs.
Ninety thousand only) and other documents which were being used for
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facilitating the gaming were seized from the accused persons and thus it is alleged that they all thereby committed an offence punishable U/S 3/ 4 of Delhi Public Gambling Act .
2. The Investigating Officer after completion of the investigation filed the charge sheet on record . Thereafter the copies were supplied and after completion of the necessary formalities and charge for commission of the offence punishable U/S 3 and 4 of Delhi Public Gambling Act was framed upon all the accused persons on 21.09.02 to which they all pleaded not guilty and claimed trial.
3. The prosecution to prove its case examined total eight witnesses. The PW1 ASI Devinder Singh , deposed that on 03.04.01 he was posted at P.S. Shalimar Bagh as Head Constable. PW1 deposed that he received the tehrir from Ct. Sahib Singh and on the basis of same he recorded the FIR No. 197/01. The copy of the FIR is proved as EX PW 1/1. The accused persons gave nil opportunity for the crossexamination of PW1.
4. PW2 ASI Gurkirat Singh deposed that on 09.04.01 he was posted as Computer Operator in EOW, Crime Branch . It is stated that on that day IO had shown him two computers with CPU and printers and he had checked the same and taken out print of 25 pages and he also signed the same. The PW2 proved the said pages as EX PW 2/A1 to A25. During crossexamination by the counsel for the accused Chander Shekhar, the PW2 stated that he cannot tell the make of the computers from which the print out was taken, however it is Page No. 3 of 27 FIR NO.197/01 S/V Satish Bansal etc. denied that the print out was not taken from the computer of the case property. He further admitted that at the time of taking out the prints Inspector N.K. Sharma alongwith other Officers were present alongwith him. It is stated that he was not the member of the raiding party and he has no personal knowledge as to from where the data was recovered.
5. The PW3 Sh. Vinod Tihara deposed that he has no concern with the premises No. JP2, Pitam Pura, Delhi nor he has any floor in the said premises. It is stated that he do not know anything about the present case. The PW3 was declared hostile by Ld. APP for the state and he was crossexamined by Ld. APP for the state. Even during crossexamination he has stated that he has no knowledge whether the police had recorded his statement regarding this case, however it is stated that the police met him. It is denied that the statement mark "A" was made to the police. It is denied that the premises No. JP2, Pitam Pura, Delhi as in his care and custody and he had given the same to the accused Satish Bansal for 15 days.
6. PW4 SI Sanjiv Kumar deposed that on 03.04.01 he was posted in LBR Section EOW, Crime Branch and on that day at about 2.55 pm he alongwith Inspector N.K. Sharma , S I J.S. Mishra, SI Dev Raj, HC Vijay Kumar , Ct. Narinder, Ct. Vijender and Ct. Saheb Singh left for JP2, Pitam Pura, Delhi since there was an information that betting on a cricket match between Indian and Australia is going on at the said place , on the third floor. It is stated that at about 3.55 PM,, Page No. 4 of 27 FIR NO.197/01 S/V Satish Bansal etc. he alongwith other officers reached at the spot and Inspector N.K. Sharma requested the 5/6 passers by to join the raiding party but they refused. It is stated that one public witness namely Sh. Jag Jiwan Ram Sharma get ready to join the police proceedings and also to act as a ' decoy customer'. Inspector N.K. Sharma took his personal search and no article whatsoever relating to the case was left in his possession and he prepared a non recovery personal search memo of the decoy customer . It is stated that Inspector N.K. Sharma also handedover one currency note in the denomination of Rs.500/ to the decoy customer through Farad Hawalgi note EX PW 4/A, which bears his signatures at point A. It is stated that Inspector N.K. Sharma directed the decoy rd customer to reach the place of information i.e. 3 floor , JP2, Pitam Pura, Delhi and bet Rs.500/ on the win of Australia, and also directed him to accompany the decoy customer as a shadow witness and listen the conversation between the accused persons and the decoy customer and further directed him to give the settled signal by putting his right hand on his head after the deal had been struck between the decoy customer and the accused persons.
7. It is further stated that at about 3.50 pm he alongwith decoy customer left for the place of information and after five minutes when the deal was struck he gave a settled signal while standing in the balcony and on this Inspector N.K. Sharma alongwith other staff reached at the spot and over powered the accused persons , whose name on asking were revealed as Satish Bansal, Page No. 5 of 27 FIR NO.197/01 S/V Satish Bansal etc. Anand Garg, Chander Shekhar, Rajiv Verma, Avneesh Kumar, Devinder Kumar and Ashwani Kumar Goel. It is stated that the decoy customer told the Inspector N.K. Sharma that when he reached at the place of information he struck a deal with the accused Satish Bansal and gave him Rs.500/ on the win of India and on this Satish Bansal told him if India wins he will get back Rs. 800/, otherwise the stake money of Rs.500/ will be forfeited. . It is stated that after taking the stake money Satish Bansal requested him to get his name noted with another person named Ashwani Kumar who was sitting there with copy and pen and obtained a slip and after noted down his details in a paper provided him with a slip indicating his name and stake money. The said slip was taken into police possession. It is stated by the witness that the said slip was taken into police possession vide seizure memo EX PW 4/B which bears his signatures at point A.
8. It is further stated that on inspection of the room it was found that there is one big centre table on which four accused persons were operating whereas two persons were operating two computers and another person was writing details on a paper and on the central table there were 8 instruments of telephones, six mobiles and four calculators and some other wires. It is stated that all these telephones were connected with the computer so that whenever a call is received it could be recorded through computer with the help of voice recorder. It is stated that there was one small table on which one color T.V. Make LG was Page No. 6 of 27 FIR NO.197/01 S/V Satish Bansal etc. placed on which cricket match between India and Australia was going on. It is stated that on the central table there was one brief case and decoy customer pointed out that in this brief case the stake money of Rs.500/ note is lying . It is stated that Inspector N.K Sharma took out the stake money and seized the same vide separate memo EX PW 4/C. It is stated that alongwith currency note of an amount of Rs.90,000/ was also recovered from this brief case. It is stated that a big brief case which was found lying near accused Anand Garg was also opened and an amount of Rs.15,60,000/ was also recovered from the said brief case and from the drawer of a side table certain incriminating documents showing the illegal betting and computer print outs were also recovered. It is stated that from the possession of accused Ashwani Kumar certain papers were recovered on which at page No.14 the name of the decoy customer and the details of stake money was mentioned. It is stated that all the above articles alongwith cash were taken into police possession vide seizure memo EX PW 4/D which bears his signatures at point A. It is stated that the disc of the computers and the instruments of telephone were separately sealed with the seal of NK which were handedover to him. It is stated that the rukka was prepared by the IO and handedover the same to Ct. Saheb Singh to get the case registered. It is stated that thereafter the investigation was marked to SI Manoj Kumar , who after completing the formalities arrested the accused persons .
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9. It is stated that on 04.04.01 ASI Gurtirath Singh took out 25 prints with help of a computer from the case property and IOSI Manoj Kumar took the same into possession. PW4 correctly identified the case property.
10. During crossexamination the PW4 stated that he went to the spot on his two wheeler from the office . It is stated that he do not know as to how the other members of the raiding party reached to the spot. It is stated that he cannot tell the exact place where all the members of the raiding party collected, however it was near to the place of occurrence i.e. JP2, Pitam Pura, Delhi . It is stated that there were residential houses as well as shop where they assembled . It is stated that the area of plot No. JP2 Pitam Pura, Delhi Delhi was about 100 sq. yards. It is stated that Inspector N.K. Sharma had stopped Sh. Jagjivan Sharma at that time on that day and Inspector N.K. Sharma had also conducted the personal search of Sh. Jagjivan Sharma. It is stated that the personal search was also prepared in this regard. It is stated that the personal belongings were allowed to be kept by him only but details thereof were not mentioned in the personal search memo which was prepared in this regard. It is stated that he do not remember as to how much cash amount was lying with Jagjivan Sharma at that time. It is stated that it was mentioned in the personal search of Jagjivan Sharma that no incriminating document/ evidence was left in his possession after conducting his personal search. It is stated that he had also went inside the room situated on the third floor alongwith Jagjivan Sharma and all the Page No. 8 of 27 FIR NO.197/01 S/V Satish Bansal etc. accused were present in the said room at that time. It is stated that he remained present in the said room till 9.00/ 9.30 pm but Sh. Jagjivan Sharma had left the room earlier. It is admitted that the address of Sh. Jagjivan Sharma or the addresses of other persons were not noted on EX PW 4/D1. It is stated that they had identified the currency note in question on the basis of its number. It is stated that the seal after use was handedover to him which he had returned to Inspector N.K. Sharma on the next day. It is stated that neither handingover memo nor taking over memo was prepared in respect of the said seal. It is stated that he do not remember as to whether the currency notes lying in the big briefcase were in packets or were lying in loose condition. It is stated that he himself did not make any inquiry from any other resident of the same building about the owner of the said room. It is stated that he do not remember the names or manufacturing companies of the mobile phones and computer. It is stated that he do not remember as to whether the aforesaid details were noted down by the IO on any document/ seizure memo or not.
11. PW5 Inspector N.K. Sharma deposed that on 03.04.01 he was posted in Crime Branch and on that day a secret information was received regarding gambling in premises No. JP2, Pitam Pura, Delhi and this information was developed and conveyed to Senior Officers. It is stated that DCP ( EOW) on his request issued search warrant U/S 5 of Delhi Public Gambling Act for three premises. It is stated that a raiding party was organized and on reaching Pitam Page No. 9 of 27 FIR NO.197/01 S/V Satish Bansal etc. Pura a public witness namely Sh. Jagjiwan Sharma was joined in the raiding party. It is stated that some other passerby were also asked to join the raiding party but they refused. It is stated that the personal search of the decoy customer was conducted and nothing related to this raid was left with him. It is stated that the personal search memo EX PW 4/F was prepared. It is further stated that a Rs.500/ currency note was given to the decoy customer vide handing over memo EX PW 4/C. It is stated that the SI Sanjiv Kumar was rd directed to act as a shadow witness and decoy customer was sent to the 3 floor of the premises No. JP2, Pitam Pura, Delhi and thereafter on receipt of settled signal from SI Sajiv Kumar the raid was conducted and on search of premises 8 telephones, six mobile phones, four computers, two T.V's , Rs.500/ note given for playing satta, Rs. 90,000/ kept in a brief case and Rs. 15,60,000/ kept in a suit case, voice recorder and other connected equipments were recovered from there. It is stated that the note of Rs.500/ which was recovered from the brief case was taken into possession vide memo EX PW 4/C. It is stated that the separate seizure memo was also prepared and the case property was also sealed. It is stated that he prepared the rukka EX PW 5/A and sent the same to P.S. through Ct. Saheb Singh for registration of the case. The PW5 correctly identified the accused persons and the case property. The further cross examination of PW 5 could not be completed.
12. PW6 Sh. Jagjivan Sharma deposed that earlier he was reisdent of 248/18, Page No. 10 of 27 FIR NO.197/01 S/V Satish Bansal etc. Tughlaka Bad Ext. New Delhi . It is stated that on 03.04.01 he was coming from Pitam Pura and was going to his house. It is stated that a staff vehicle was standing and the police stopped him and told him that the satta is being played rd at 3 floor, JP2, Pitam Pura, Delhi and he was requested by the police to join the investigation. It is stated that he was made decoy customer and he was handedover one currency note of Rs.500/ which bears the number DAT482053. It is stated that SI Sanjeev Kumar was sent with him as a shadow witness. It is stated that he was told to stake money to satta on the win of India. It is stated that they reached in the said premises at about 3.50 pm and knocked the door of the said premises and some fatty man was sitting there , who is present in the court and he told his name as Satish Bansal, than he handedover the money to the accused and he was told by the said person that, if the India wins he would be given Rs.800/ otherwise RS.500/ will be forfeited. It is stated that one satta parchi was given to him by accused Ashwani and accused Ashwani recorded his name also. It is stated that thereafter SI Sanjeev Kumar made an indication towards the raiding party and all the police party reached there. It is stated that all the seven accused persons were apprehended at the spot and then he handed over the satta parchi to the police which was seized vide EX PW 4/B, the seizure memo of the case property was proved as EX PW 6/A and personal search memo of the accused persons is proved as EX PW 4/E1 to EX PW 4/E7 and his personal search memo is proved Page No. 11 of 27 FIR NO.197/01 S/V Satish Bansal etc. as EX PW 4/F. It is stated that one brief case sealed with the court seal was opened and shown to the witness and he submitted that the recovery was not effected in his presence , hence he can neither identify the brief case nor the currency notes.
13. The PW6 was crossexamined by Ld. APP for the state as he resiled from his earlier statement. During crossexamination by Ld. APP for the state it is stated by the PW6 that on 16.11.05 he had stated before the court that from the spot mobile phones, colour TV and from one attaichi a sum of Rs.90,000/ was recovered and Rs.15,60,000/ was also recovered. It is voluntarily stated that the said fact was stated by him after reading the case file.It is denied that he is deposing falsely to save all the accused persons.
14. It is also pertinent to mention that the case property i.e. currency note of Rs. 500/ given for the stake was got misplaced and an enquiry was also hold in this regard as the said currency note was not available.
15. During crossexamination the PW6 stated that he has not brought any document regarding proof of his identity but he can produce the same, if directed. It is denied that he is not Sh. Jagjivan Sharma or that he is misrepresenting before the court. It is stated that at the time of raid he was clean shaved and having short hairs. It is stated that he started wearing turban just from last one year. It is stated that he used to work as recovery agent with Scoots Scan Agency. It is stated that he do not know the date when he joined Page No. 12 of 27 FIR NO.197/01 S/V Satish Bansal etc. the said agency and the date when he left the agency. It is stated that he was not given any identity card by the said agency. It is stated that he was getting commission on the recovery amount. It is stated that on 03.04.01 the police met him in the afternoon probably at main road Shalimar Bagh . It is stated that the police did not ask any public witness to join the investigation when he had joined the investigation at the request of IO. It is stated that he cannot tell the distance between the place where police met him and the place where raid was conducted . It is stated that do not remember the address of that place where police had taken him. It is voluntarily states that it was on the second floor. It is stated that before or after 03.04.01 he never accompanied Inspector N.K. Sharma in any raid. It is stated that he used to go with many other police officers in conducting raids . Thereafter the crossexamination of PW6 was deferred and again on 16.09.11 the PW6 stated that he has not brought any document or proof of his identity. It is stated that during the time when he remained present in the room at third floor of the property , accused Satish Bansal had issued receipt after taking currency note of RS.500/ and he had asked him to go to some persons whose name he do not remember. It is stated that the size of the receipt at that time was approximately 6X3 and it was written on the said receipt that he will be getting rate of Rs.800/ in lieu of Rs. 500/. It is stated that receipt was computerized which was taken out from the printer attached with the computer . The PW6 correctly identified the receipt Page No. 13 of 27 FIR NO.197/01 S/V Satish Bansal etc. EX PW 6/D1 available in the judicial file. It is admitted by PW6 that the receipt EX PW 6/D1 is neither computerized nor it is signed or stamped and it is hand written. It is admitted that no other person except accused Satish Bansal and one more person whose name he do not remember, was present in the room on the third floor when he went to handover the currency note of Rs.500/. It is stated that 1/ 2 persons were also present at that time who had also betted in his presence . It is admitted that no search or seizure of any article from the said place took place in his presence. It is denied that the slip EX PW6/DA was never handedover to him by the accused Satish Bansal. It is denied that he has signed the memo and documents at P.S. at the instance of IO when they were blank.
16. PW7 Sh. Dinesh Bhatt, SSP Operators UT, deposed that on 03.04.01 he was posted as DCP EOW, Crime Branch Delhi and on that day on the request made by Inspector N.K. Sharma regarding a secret information three search warrants in respect of all premises were issued . The Search Warrant regarding H.No QU/133A , Pitam Pura is EX PW 7/A, the second Search Warrant regarding H. No. D139, Antriksh Apartment ,new Town Group Housing is proved as EX PW 7/B and third search warrant regarding H.No. JP2, Pitam Pura, Delhi is proved as EX PW 7/C. During crossexamination , it is admitted that at the request of Inspector N.K. Sharma no date is mentioned. It is voluntarily stated that it is have date and signature of ACP LBR and of witness Page No. 14 of 27 FIR NO.197/01 S/V Satish Bansal etc. PW7.
17. PW8 Inspector Manoj Kumar deposed that on 03.04.2001 he was posted as SI as LBR Section, EOW, Crime Branch . It is stated that at about 6.15 pm he was informed to join the raiding party headed by Inspector N.K. Sharma at rd JP2, Pitam Pura, ,3 floor, Delhi. It is stated that he alongwith other police officials reached at the spot. It is stated that Inspector N.K. Sharma handedover the seizure memo alongwith case property and also produced seven accused persons present at the spot. PW8 further deposed that he examined the Decoy customer Sh. Jagjivan Ram and recorded his statement. It is stated that in the meantime Constable Saheb Singh came at the spot with copy of FIR and handedover the copy of FIR and original rukka to him and he recorded his statement. It is stated that he interrogated all the accused persons and arrested them in the present case, than he came to P.S. Shalimar Bagh and case property was deposited with MHCM. Thereafter he went to the office of Crime Branch. The PW8 further deposed that after obtaining the necessary permission the prints out from the computer was obtained. It is also deposed by PW8 that he applied for obtaining the call details of the mobile phones seized from the accused persons, however it was informed that there was no calls with these mobile numbers of that relevant period. It is stated that he also got obtained the specimen handwriting of accused Ashwani Kumar Goel and deposited the same with FSL.
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18. The PW8 was crossexamined by Ld. APP for the state on the ground that the witness is not disclosing the complete facts. During crossexamination by Ld. APP for the state the PW8 correctly disclosed the name of all the accused persons and stated that he could not stated all these names due to laps of time. It is stated that he is not able to identify the accused Devender due to passage of time.
19. During crossexamination by Ld. Counsel for the accused persons the PW8 stated that he reached the spot at Shalimar Bagh between 8 pm to 8.30 pm through his own two wheeler scooter. It is stated that he had not seen the said premises prior to 03.04.01. It is stated that no police official met him on the ground floor of the said premises. It is stated that the police officials met him rd on the 3 floor of the premises No. JP2. It is stated that the goods were taken into possession and the police officials were talking with the accused persons. It is stated that he do not know the names of the residents of the ground, first and second floor and he also do not know the area of the said premises. It is stated that one Mr. Vinod Tiyara was having authority to take care of the premises. It is stated that the said person informed him that he had let out the said premises to Satish Bansal for a period of 15 days but no rent receipt was produced. It is stated that he recorded the statement of PW Jagjiwan Sharma at the spot. It is denied that Sh. Jagjiwan Sharma had already left the spot prior to his arrival. It is stated that Inspector N.K. Sharma had obtained the Page No. 16 of 27 FIR NO.197/01 S/V Satish Bansal etc. permission for conducting the raid from DCP. It is stated that he do not know as to for how many places for conducting the raid the permission was obtained. It is stated that the case property was deposited with the MHC(M) P.S. Shalimar Bagh. It is stated that the witness Sh. Jagjiwan Sharma had left the spot at about 9 or 9.15 pm. It is stated that he do not know the make of recovered mobile phone and he do not know the service provider of the SIM cards containing in the mobile phone. It is stated that one of the company was namely ESSAR from where he had applied for obtaining call details . It is denied that no investigation was conducted by him in this case and he is deposing falsely.
20. The statement of accused persons was recorded U/S 313 CrPC, whereby the accused persons denied the story of the prosecution and accused Satish Bansal has stated that one CW Sh. Sanjay Bajaj has already been examined during the trial and same may be considered as defence witness. No other witness is examined by any of the accused person.
21. It is pertinent to mention that CW1 Sh. Sanjay Bajaj was examined by the accused persons on their application for return of the money seized in the present case. The CW1 has deposed that he had given Rs.16 lacs to Sh. Rameshwar Dass Bansal, father of the accused Satish Bansal for purchase of the property. It is stated that after 3/ 4 days when he asked about the money than he was informed that the money was seized by the police. It is stated that Page No. 17 of 27 FIR NO.197/01 S/V Satish Bansal etc. he had served a notice EX CW1/1 upon Rameshwar Dass, which bears his signatures. The CW1 stated that he can identify the currency note. It is stated that currency notes were in the denomination of RS.500/, Rs.100/ and Rs.50/. It is further stated that he do not remember whether there was any slip of the bank on the notes . The CW1 submits that he currency notes belongs to him.
22. During crossexamination by Ld. APP for the state the CW1 stated that the currency notes were partly from their sales and partly withdrawn from the bank. It is further stated that he cannot tell orally how much amount was withdrawn from the bank. It is stated that he do not remember the account number of the bank without seeing the record. It is stated that he withdrew the amount within a week from the date of incident. It is further stated that he came to know about the incident about 10/15 days after. It is stated that he did not make any complaint to the police. The court has observed that the currency notes bears the slip of Punjab & Sind Bank, Vyasa Bank, Indian Overseas Bank Naraina, Punjab National Bank, New Rajinder Nagar , one packet of currency notes of denomination of Rs.10/ bear the slip of Wine Palace, Bahadur Garh and Oriental Bank of Commerce, Connaught Palace , New Delhi.
23. I have carefully perused the material on record and have heard the submissions of Ld. APP for the state and Ld. Counsel for all the accused persons.
24. It is submitted by Ld. APP for the state that the prosecution has examined 8 Page No. 18 of 27 FIR NO.197/01 S/V Satish Bansal etc. witnesses to support its case. It is stated that all the witnesses examined by the prosecution has supported its case and proved the case of the prosecution beyond reasonable doubt. It is stated that the defence witness relied upon by the accused persons is not sustainable in the eyes of law and his testimony cannot be relied upon as he is the interested witness. It is further stated that considering all the facts and circumstances the accused persons may kindly be convicted. It is also stated that the Ld. Predecessor of this court vide order dated 10.09.04 has already discarded the testimony of this defence witness.
25. On the other hand it is submitted by Ld. Counsel for the accused persons that the story of the prosecution is full of contradiction. It is stated that the prosecution has relied upon one PW Sh. Jagjivan Sharma , however the testimony of PW Jagjivan Sharma cannot be relied upon. It is stated that despite repeated opportunities and objections raised by the defence the said PW neither proved his identity nor produced any proof regarding his identity. It is stated that PW Jagjivan Sharma , who appeared as a 'Sardar' was wearing turban but his name is reflecting something else. During crossexamination the witness has failed to produce any proof regarding his identity despite being deferred 3/ 4 times for his crossexamination. It is stated that even there is the material contradiction in the testimony of said witness PW6 Sh. Jagjiwan Sharma and other police officials, therefore, no reliance can be placed upon the testimony of these witnesses. Therefore, all the accused persons may kindly be Page No. 19 of 27 FIR NO.197/01 S/V Satish Bansal etc. acquitted.
26. Ld. Counsel for the accused persons have also filed the written arguments on record. It is also stated that PW5 Inspector N.K. Sharma ,who is the main witness could not be crossexamined and he has expired during the pendency of the case and his testimony cannot be read in evidence. It is stated that there is material contradiction regarding place of occurrence, time of occurrence, place of assembling of police party and regarding recovery of stake money . It is stated that the alleged search was conducted in violation of Section 100 CrPC. It is stated that the stake money i.e. currency note of RS.500/ was never produced in the court. Therefore, it is prayed that all the accused persons may kindly be acquitted for the charge framed.
27. The relevant provision of Section 3 and 4 of Delhi Public Gambling Act is reproduced as under: " Section 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 common 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 same to be opened, occupies, used or kept by any other person as a common gaminghouse;and Page No. 20 of 27 FIR NO.197/01 S/V Satish Bansal etc. 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."
Section 4 Penalty for being found in gaminghouse (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 gaminghouse during any gaming or playing therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming".
28. The prosecution has examined total 8 witnesses to prove the charge. The PW1 ASI Devinder Singh is the formal witness who recorded the FIR. The PW2 ASI Gurkirat Singh is also the formal witness who had taken out the prints from the computer and CPU seized from the office of accused persons. The Page No. 21 of 27 FIR NO.197/01 S/V Satish Bansal etc. PW3 Sh. Vinod Tihara turned hostile and did not support the case of the prosecution. The PW3 has deposed that he has no concern with the premises No. JP2, Pitam Pura, Delhi. Even during crossexamination the PW3 denied rd that the premises No. JP22,3 floor, Pitam Pura, Delhi was in his care and custody and he had given the same to accused Satish Bansal for 15 days for his use. The PW4 SI Sanjiv Kumar is the witness, who accompanied the decoy witness inside the premises No. JP2, Pitam Pura, Delhi. The PW4 is the star witness of the prosecution. The PW5 Inspector N.K. Sharma, is the initial Investigating Officer, however the crossexamination of PW5 could not be recorded due to his death, therefore, his testimony cannot be read in evidence. The PW6 Sh. Jagjivan Sharma is the public witness, who joined the raiding party and worked as a ' Decoy customer'. The PW7 Sh. Dinesh Bhatt is the then DCP, who issued the Search Warrant regarding the premises and PW8 Inspector Manoj Kumar is the Investigating Officer.
29. In the present case the prosecution has relied upon the public witness Sh. Jagjivwan Sharma. The testimony of PW6 Sh. Jagjivan Sharma was recorded on 16.01.07, 23.01.07, 03.06.11 and 16.09.11. It is pertinent to point out that there is one dispute raised by the Ld. Defence counsel regarding identity of the said witness even during crossexamination . However, despite adjournments and time granted three times the witness did not produced any proof of his identity. The defence counsel has raised doubt upon the Page No. 22 of 27 FIR NO.197/01 S/V Satish Bansal etc. authenticity,genuineness and identity of the public witness but despite repeated opportunities, the said witness had failed to produce any proof of his identity. Even despite the objection raised by Ld. Defence counsel during cross examination the prosecution has not placed on record or produced on record any proof regarding identity of this witness. Therefore, in the absence of anything regarding identity of this witness ,it is not safe to rely upon this public witness. The testimony of PW6 Sh. Jagjivan Sharma is also full of material contradictions. The PW6 Sh. Jagjivan Sharma in his examination in chief has stated that the recovery was not effected in his presence and hence, he cannot identify the brief case or the currency note. However, during his cross examination by Ld. APP for the state the PW6 stated that the same were recovered in his presence and he also admitted that the said fact regarding recovery of the case property is stated by him after reading the case file. IT is stated by the witness that he did not remember the address of the place where the police had taken him . It is voluntarily stated that it was the second floor and four police officials accompanied him. However, as per the prosecution story rd the place of gaming was 3 floor and only S I Sanjiv Kumar accompanied the said public witness. The witness has also admitted that he used to go with many other police officials in conducting raid as and when police used to require him. The witness stated that the size of the receipt issued to him at that time was approximately 6 X 3 and it was written on the said receipt that he will be getting Page No. 23 of 27 FIR NO.197/01 S/V Satish Bansal etc. rate of Rs.800/ in lieu of Rs.500/. It is stated that the said receipt was computerized which was taken out from printer attached with the computer, in his presence. However, on being confronted with the said receipt EX PW 6/D1 it is admitted that the same is neither computerized nor it is signed or stamped and it is hand written. It is stated that one or two persons were also present at that time who had also betted in his presence . It is also admitted that no search or seizure of any article from the said place took place in his presence.
30. PW6 during his crossexamination has admitted that he used to go with the police party during raids. The witness has failed to give any plausible explanation for regular joining the police raid. The non furnishing of explanation regarding frequent joining of police party by the said witness raises the shadow of doubt upon the said public witness and the said witness appears to be a stock witness . Even the witness has contradicted the story of the prosecution on material counts . The witness has deposed contradictory regarding the receipt EX PW 6/D1. The witness has deposed contradictory regarding the floor of the gaminghouse . The witness has deposed contradictory regarding search or seizure of the said articles. The witness has deposed contradictory regarding the presence of all the accused persons. Therefore, considering all the facts and circumstances , I am of the considered opinion that it is not safe to rely upon the testimony of PW6 Sh. Jagjivan Sharma, therefore, no reliance can be placed upon the testimony of this Page No. 24 of 27 FIR NO.197/01 S/V Satish Bansal etc. witness.
31. The remaining witnesses cited by the prosecution are the police officials and the testimony of the police officials are in contradictions with the public witness relied upon by the prosecution. Therefore, keeping in view the material contradiction between testimony of the public witness PW6 Sh. Jagjivan Sharma and other police officials, it is also not safe to rely upon the testimony of other police officials.
32. In the present case the accused persons are charged for commission of the offence punishable U/S 3 of Delhi Public Gambling Act laid down for penalty for owning or keeping or having charge of a gaming house. However, in the present case the prosecution has failed to place on record any oral or documentary evidence to connect any or all of the accused persons with the premises No. JP2, Pitam Pura, Delhi. The PW3 Sh. Vinod Tihara turned hostile and did not support the case of the prosecution that he has given the premises for 15 days to one of the accused Satish Bansal. Even the prosecution has failed to place on record any rent deed, agreement or other document to prove the use of the said premises by the accused persons. The PW3 Sh. Vinod Tihara has deposed that he has no concern with the suit premises. Therefore, considering the facts and circumstances , it is clear that the prosecution has miserably failed to prove its case for commission of the offence punishable U/S 3of Delhi Public Gambling Act as no evidence has come on record regarding owing , keeping or Page No. 25 of 27 FIR NO.197/01 S/V Satish Bansal etc. having charge of premises No. JP2, Pitam Pura, Delhi by any or by all the accused persons.
33. The accused persons are also charged for commission of the offence punishable U/S 4 of Delhi Public Gambling Act. Section 4 laid down the penalty for being found in gaminghouse . In the present case the prosecution has relied upon the testimony of the public witness PW6 Sh. Jagjivan Sharma to prove its case. However, it is already observed that the testimony of PW6 cannot be relied upon and the testimony of police witnesses are in contradiction with the public witness. Therefore, it is also not safe to rely upon the testimony of police officials. Therefore, considering the facts and circumstances , I am of the considered opinion that the prosecution has failed to prove its case against all the accused persons for commission of the offence punishable U/S 3 & 4 of Delhi Public Gambling Act.
34. In view of the above discussions , all the seven accused Satish Bansal, Anand Garg, Avnish Kumar, Devender Kr. ,Rajiv Verma, Chander Shekhar and Ashwani Kumar Goel are acquitted for commission of the offence punishable U/S 3 and 4 of Delhi Public Gambling Act. Their bail bonds are extended for a period of six months U/S 437A IPC.
The Case property be confiscated to the state as per rules as the claim of the accused persons has already been rejected by the Ld. Predecessor of this court.
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FIR NO.197/01 S/V Satish Bansal etc. File be consigned to record room after completion of necessary formalities.
Announced in the open court ( Devender Kr. Jangala)
on 08.11.12 ACMM( N/W): Rohini Courts: Delhi
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