Punjab-Haryana High Court
Amar Singh vs State Of Punjab on 3 September, 2009
Author: Jora Singh
Bench: Jora Singh
Crl.Revision No.276 of 2000 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Rev.No.276 of 2000
Date of decision: 3.9.2009
Amar Singh
... Petitioner
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.Paramjit Batta, Advocate,
for the petitioner.
Mr.P.S.Grewal, AAG, Punjab.
...
JORA SINGH, J.
Amar Singh filed this revision against the order dated 27.7.1999 rendered by Additional Sessions Judge, Fatehgarh Sahib. Vide this judgment, appeal against the order of conviction dated 3.2.1998 passed by JMIC, Fatehgarh Sahib, was dismissed.
As per order of conviction dated 3.2.1998, the petitioner was convicted under Section 13 of the Gambling Act and was directed to pay a fine of Rs.100/-, and in default of payment of fine, he was sentenced to undergo imprisonment till rising of the Court.
Prosecution story, in brief, is that on 20.2.1996, HC Gurmel Singh along with police party was present near Chowk Motewala, in connection with patrol duty. Then he received a secret information to the effect that Amar Singh was playing the game of gambling by means of darra satta while present near Sabzi Mandi, Bassi Pathana, by saying to pay Rs.80/- against the stake money of Rs.1/- currency note on the successful number. On receipt of secret information, ruqa was sent to the Police Crl.Revision No.276 of 2000 2 Station, on the basis of which, formal FIR was registered. Thereafter, raiding party was constituted. PHC Sawinder Singh was directed to wear plain clothes. Marked Rs.5/- currency note was handed over to PHC Sawinder Singh with a direction to stake Rs.5/- currency note at No.75 and after obtaining a receipt, to give the agreed signal to the police party. Vide memo, marked Rs.5/- currency note was handed over to PHC Sawinder Singh and as per direction of the IO, PHC Sawinder Singh had gone to the accused and had staked marked Rs.5/- currency note at No.75. After obtaining receipt, PHC Sawinder Singh gave agreed signal to the police party. The accused was apprehended and on personal search of the accused, one piece of card board, one parcha, one ball pen and currency notes worth Rs.155/-, including marked currency note were recovered from him. Recovered articles were taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. Accused was arrested. PHC Sawinder Singh had also produced parchi before the IO and the same was taken into police possession vide separate memo attested by the witnesses. The accused was released on bail at the spot and after completion of investigation, challan was presented.
After hearing APP for the State, defence counsel for the accused and from the perusal of the file, the trial Court opined that a prima facie case under Section 13 of the Gambling Act was made out against the accused. Accordingly, charge was framed under Section 13 of the Gambling Act against the petitioner, to which he pleaded not guilty and claimed trial.
Prosecution examined HC Gurmel Singh (PW1) and PHC Sawinder Singh (PW2) and closed its evidence.
Crl.Revision No.276 of 2000 3
After closing of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. The accused denied all prosecution allegations and pleaded to be innocent. Defence version of the accused was that he was falsely implicated. Opportunity was given to the accused to lead evidence but no evidence in defence was led.
After hearing APP for the State, defence counsel for the accused and from the perusal of evidence on the file, the petitioner was convicted and sentenced by the trial Court, and against the order of trial Court, appeal was preferred but the appeal was dismissed vide impugned judgment.
Learned counsel for the petitioner argued that evidence on file was not properly scrutinized. PHC Sawinder Singh was joined as bogus punter but there was no shadow witness. No evidence on the file that the petitioner had promised to pay 80 times if marked currency note is staked at No.75 and No.75 is the successful number. Mere recovery of parchi from the bogus punter and some articles from the petitioner are not sufficient to opine that the petitioner was playing the game of darra satta. In support of his contentions, learned counsel for the petitioner placed reliance on (i ) 1959 PLR 439, Tarsem Lal vs. The State, and (ii) 1964 Current Law Journal 182, The State vs. Gainda Ram.
Learned State counsel argued that the petitioner was playing the game of darra satta at public place. The petitioner was proclaiming to pay 80 times if the amount was staked on a particular number and that number was the successful number. Marked currency note of Rs.5/- was handed over to bogus punter with a direction to stake the marked currency note at No.75. Receipt was obtained from the petitioner and then agreed Crl.Revision No.276 of 2000 4 signal was given to the raiding party. As per agreed signal by the bogus punter, raid was conducted. Purchi signed by the petitioner was recovered from the bogus punter. Marked currency note was recovered from the petitioner. That means the bogus punter as per direction of the IO had staked the marked currency note at No.75. Evidence on file was rightly scrutinized.
I have gone through the evidence on file but evidence on file was not properly scrutinized by the trial Court as well as the First Appellate Court. According to the story, police party headed by HC Gurmel Singh had received secret information that the petitioner was playing the game of darra satta while present near Sabzi Mandi, Bassi Pathana. But on receipt of secret information, ruqa was not sent to the Police Station. After receipt of secret information, marked currency note of Rs.5/- was handed over to PHC Sawinder Singh, but no one was directed to act as a shadow witness. Shadow witness was to join to hear the conversation amongst the petitioner and bogus punter while staking marked currency note on a particular number and whether the petitioner had promised to pay 80 times the amount staked. Link evidence is missing as to what had uttered by the petitioner; whether bogus punter had staked marked currency note at No.75 and after staking marked currency note, whether the petitioner had promised to pay 80 times if No.75 was the successful. In Tarsem Lal's case (supra), it has been held as under:-
"Public Gambling Act (III of 1867) Section 13- Sata gambling-
even entry of stakes on a chit, whether gambling- Uncorroborated evidence of decoy punter-Conviction cannot be based on his evidence.Crl.Revision No.276 of 2000 5
The petitioner was standing near a Petrol Pump when a decoy punter of the police gave him one rupee currency note for staking on certain numbers. The petitioner entered on a chit the alleged stakes. It is contended that the prosecution evidence did not disclose the modus operandi adopted by the petitioner for the purpose of gambling and further the petitioner did not accept the bet himself, but he was to get commission only. Held, that these facts do not constitute the offence under Section 13 of the Public Gambling Act. At best it was merely a preparation which is not culpable, and it is not understood as to how merely entering on a chit the alleged stakes could constitute gambling as envisaged under Section 13 of the Public Gambling Act. Nor on the uncorroborative evidence of decoy punter any conviction could be sustained."
In Gainda Ram's case (supra), the Hon'ble Court has held as under:-
"Held, in the Public Gambling Act, 1867 there is no definition of the `gaming', but Punjab Act 1 of 1929 in Section 1 did give an inclusive definition of this term but at that time it did not include wagering or betting on any figures or numbers or dates to be subsequently ascertained or disclosed. The definition of the term was amended by Section 2 of the Punjab Act 9 of 1960 and the definition now includes in the term `gaming', wagering or betting on any figures or numbers or dates to be subsequently ascertained or disclosed, as such Tarsem Lal's case was decided before the amending Punjab Act 9 of 1960 Crl.Revision No.276 of 2000 6 and consequently is not a precedent for cases decided after the coming into force of the amendments brought about by Punjab Act 9 of 1960. This has been approved by a Division Bench in State V. Jai Kishan, Criminal Appeal No.1195 of 1961, decided on October 25, 1962, and has also been followed in Mulkh Raj V. State, Criminal Revision No.649 of 1961, decided on October 16, 1961, and Brij Kishore v. State, Criminal Revision No.57 of 1962 decided on July 30, 1962."
In the present case, evidence is missing as to what were the terms and conditions regarding payment of 80 times of the staked amount. Place of recovery was a thoroughfare. Independent witnesses were available but no one was joined without any reason. Evidence simply shows that marked Rs.5/- currency note was handed over to PHG Sawinder Singh and he was directed to stake the marked currency note at No.75 and gave agreed signal to the raiding party. That means PHG Sawinder Singh was acting as bogus punter as well as shadow witness. But no evidence is on the file as to whether PHG Sawinder Singh is telling the truth or not. To corroborate the statement of PHG Sawinder Singh, statement of shadow witness was the corroborative piece of evidence.
In defence, the petitioner has examined two witnesses and their statements seem to be reasonable one. Defence version seems to be more probable than the prosecution story.
No other submission was put forward. All the discussed above shows that the evidence on file was not properly scrutinized by the trial Court as well as First Appellate Court. The impugned judgment suffers from illegality and infirmity.
Crl.Revision No.276 of 2000 7
In the light of above discussion, the impugned judgment is set aside and the petitioner is acquitted of the charge levelled against him.
The revision is allowed accordingly.
3.9.2009 ( JORA SINGH ) pk JUDGE