Delhi District Court
State vs Rajat Sharma Etc on 9 October, 2014
1
IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE, DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI.
STATE VERSUS Rajat Sharma etc
FIR No:515/2006
U/S 3 & 4 of the Delhi Public Gambling Act, 1955
P. S.Chitranjan Park
Date of filing of the charge sheet :24102007
Date of reserving order :30092014
Date of pronouncement :09102014
(a) Serial Number of the case : 71/3 of 24102007
(b) The date of the commission of : 26112006
the offence
(c) The name of the complainant : SI Suresh Kumar D3333,
PIS No:16930014 ARS,
Crime Branch, Delhi.
(d) The name of the accused : (1)Rajat Sharma @
person, his parentage and Minku S/o Late
residential address Sh. Arun Kumamr
Sharma R/o
House No:H120,
2nd Floor, Vikas
Puri, New Delhi.
(2)Jatin Seth S/o Sh.
Raj Kumar Seth,
R/o F5, Poorvi
Apartments, Vikas
Puri, New Delhi
(3)Sushil Chopra @
Vicky S/o Sh.
Ram Saroop
FIR No:515/2006 , State Vs. Rajat Sharma etc
2
Chopra R/o
E55/58, Nirmal
Puri Lajpat Nagar,
New Delhi.
(e) The offence complained of : U/S 3 & 4 of the Delhi
Public Gambling Act, 1955
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Conviction.
(h) The date of the order : 09102014
JUDGMENT
1. The brief facts of the case are that S.I. Har Kesh, on receipt of trustworthy information that SI Suresh Kumar received a secret information regarding a person namely Rajat Sharma who was residing at House No.H120, 2nd Floor, Vikaspuri that the said accused he was involved in gambling of cricket match which was being played between India and South Africa. The warrant was obtained from the DCP under section 5 of the Act entitling S.I. Suresh Kumar to search the premises i.e. House No. F1172, Top Floor, C.R. Park. and to seize the articles found there. In pursuance of that warrant, the sub inspector raided the house on 26.11.2006 and found some cash and articles used for the purpose of gambling. The police took those articles into possession.
2. The FIR was lodged ad three accused persons were arrested namely:
i. Rajat Sharma @ Minku s/o Late Sh. Arun Kumar FIR No:515/2006 , State Vs. Rajat Sharma etc 3 Sharma r/o o House No. H120, 2nd Floor, Vikas Puri New Delhi;
ii. Jatin Seth s/o Sh. Raj Kumar Seth r/o F5, Poorvi Apartments, Vikas Puri, New Delhi iii. Sushil Chopra @ Vicky s/o Sh. Ram Saroop Chopra r/o E55/58 Nirmal Puri, Lajpat Nagar, New Delhi;
3. The charge sheet was submitted and charges were accordingly framed against all the three accused persons under S.3 & 4 of the Delhi Public Gambling Act, 1955. The prosecution examined seven PWs in order to prove its case. Thereafter, the three accusedpersons were examined under S.313 Cr.P.C. The entire prosecution evidence was put to them. The defence was that each accused had been falsely implicated in the case. None of them wanted to lead the defence evidence.
4. The testimony of each PW is mentioned hereinunder :
PW1: Insp. Suresh Kumar No. D3333 Anti Extortion Cell Crime Branch, R.K. Puram
5. The witness PW1 testified that he received a secret information regarding a person namely Rajat Sharma who was residing at House No.H120, 2nd Floor, Vikaspuri that the said accused was involved in gambling of cricket match which was being played between India and South Africa. The place of gambling was known to the customers of Rajat Sharma. PW1 shared this information FIR No:515/2006 , State Vs. Rajat Sharma etc 4 with Inspector (Anti Robbery Cell) and ACP (Anti Robbery Cell). The witness PW1 alongwith PW2 and HC Hari Om (PW7) went to the said address i.e. Vikaspuri after making the departure entry DD NO. 5 for verification of the above said information. They reached the above address and the secret informer met PW1 and accompanied them to the House No. H120, Vikaspuri and pointed out towards the 'Assent' car bearing no. DL 9CC 4806 which was parked in front of the said house and told that Rajat Sharma would go to the place of gambling in the said car. PW1 gave instructions to PW2 and PW7 i.e. HC Hari Om to follow the said car by motorcycle. Accordingly, the witness PW2 alongwith HC Hari Om followed the said car by motorcycle. The said witness PW1 also informed the inspector and asked for the arrangement of the other staff. In the meantime, PW1 obtained the search warrants u/s 5 from the DCP. (Ex. PWPA).
6. The witness PW1 has further deposed that he requested public persons to join the raiding party but none of them agreed. ASI Murari Lal and Ct. Gopal who were from local police station, joined the raiding party. PW1 gave Rs.500/ to HC Hari Om vide handed memo (same is not traceable on judicial file). He instructed HC Hari Om that he should represent himself as Heera R/o Lajpat Nagar, with the reference of Goldy and gave further instructions that the money should use for victory of India. He was also instructed to give signal after writing of chit.
7. The witness PW2 further deposed that he alongwith HC Hari Om went to House No. F1172, Top Floor, C.R. Park. They entered and found 3 persons were sitting in the room. HC Hari Om gave Rs. 500/ FIR No:515/2006 , State Vs. Rajat Sharma etc 5 to Rajat Sharma for the victory of India in the Match with South Africa. Another person namely Jatin Seth gave a chit to HC Hari Om. HC Hari Om gave signal towards the raiding party members and they entered the said house. Rajat Sharma was busy in collecting the cash, Jatin Seth was busy in making entry in register and preparing the chits with the help of the laptop and Sushil Chopra was busy in attending telephone and watching the match on T.V.
8. During the testimony of the said witness the MHC (M) produced the case property consisting of two sealed envelopes with the seal SK and two cloth duly sealed with the seal of SK all bearing the particulars of the case.
a. One envelope was opened up and the following case property was taken out :
i. One slip bearing one name as 'Heera' (70) S.A 350 + IND 500 - dated 26/11/ (this was shown to the witness who identified it as Ex. P1);
b. Another envelope was opened up and the following case property was taken out :
i. One small bag of black color containing cash Rs.6750/ (this was shown to the witness who identified it correctly as Ex. P2 collectively); The currency note of Rs.500/ bearing the signature of the witness of the witness (at point A) was separated by the said witness. This was the FIR No:515/2006 , State Vs. Rajat Sharma etc 6 currency note which was given to the 'decoy customer' HC Hari Om code named 'Heera'.
c. One cloth was also openedup which contained :
i. Two writing pads of the make 'HANS' bearing the account of satta;
ii. Three written loose papers also bearing the account of satta. /(these were shown to the witness who identified it correctly as Ex. P3 collectively);
d. Another cloth pulinda containing:
i. one land line phone instrument of the make of BEETEL;
ii. Calculator (CITIZEN) iii. 8 cell phones (all 'NOKIA' ) iv. 5 mobile chargers, v. 4 pens, vi. 1 stapler;
vii. one extension cord, viii. 1 laptop (COMPAQ) ix. some loose papers were put in the laptop bag and sealed FIR No:515/2006 , State Vs. Rajat Sharma etc 7 with the seal of SK These were shown to the witness who identified it correctly as Ex. P4 collectively). The ASCENT car (Ex. P5) and the T.V (Ex. P6) were not produced but the accused persons raised noobjection in that regard.
PW2:: HC
Virender,
No. 752,
Anti Robbery Cell, Crime Branch,
Nehru Place, New Delhi (wrongly mentioned as PW8)::::
9. The abovementioned witness PW2 testified that on 26.11.2006, he was posted at ARC Prashant Vihar as HC. On that day, SI Suresh Kumar received a secret information regarding a person namely Rajat Sharma who was residing at House No.H120, 2nd Floor, Vikaspuri that the said accused was involved in gambling of cricket match which was being played between India and South Africa. The place of gambling was known to the customers of Rajat Sharma. SI Suresh Kumar shared this information with Inspector (Anti Robbery Cell) and ACP (Anti Robbery Cell). The witness PW2 alongwith SI Suresh Kumar and HC Hari Om went to the said address i.e. Vikaspuri after making the departure entry DD NO. 5 for verification of the above said information. They reached the above address and the secret informer met SI Suresh Kumar. The Secret informer accompanied them to the House No. H 120, Vikaspuri and pointed out towards the 'Assent' car bearing no. DL 9CC 4806 which was parked in front of the said house and told that Rajat Sharma would go to the place of gambling in the said car. SI Suresh Kumar gave instructions to PW2 and HC Hari Om to follow the said car by motorcycle. Accordingly, the witness PW2 alongwith HC Hari Om followed the said car by motorcycle.
FIR No:515/2006 , State Vs. Rajat Sharma etc 8 The accused Rajat Sharma picked two persons from Vikaspuri Mode and near Moolchand red light. They reached at House No. F 1172, Top Floor, C.R. Park, Delhi. PW2 informed SI Suresh Kumar regarding the said location. SI Suresh Kumar alongwith secret informer reached that place. SI Suresh Kumar gave instructions and he went to the DCP Crime for obtaining the search warrant and he also told Inspector Jai Bhagwa to arrange the police team . At about 4.00 PM, Ct. Azad Singh, Ct. Ramesh Kumar, Inspector Jai Bhagwan, HC Hari Om, SI Suresh Kumar and PW2 gathered at Main Road in front of Savitri Cinema, C.R. Park. SI Suresh Kumar requested 45 public persons to join the raiding party but none of them agreed. ASI Murari Lal and Ct. Gopal who were from local police station, joined the raiding party. SI Suresh Kumar gave Rs. 500/ to HC Hari Om vide handed memo (same is not traceable on judicial file) and SI Suresh Kumar gave instructions to HC Hari Om that he should represent himself as Heera R/o Lajpat Nagar, with the reference of Goldy and gave further instructions that the money should use for victory of India. He was also instructed to give signal after writing of chit.
10.The witness PW2 further deposed that he alongwith HC Hari Om went to House No. F1172, Top Floor, C.R. Park. They entered and found 3 persons were sitting in the room. HC Hari Om gave Rs. 500/ to Rajat Sharma (his name was revealed on enquiry) for victory of India in the Match with South Africa. Another person namely Jatin Seth gave a chit to HC Hari Om. HC Hari Om gave signal towards the raiding party members and they entered the said house. Rajat Sharma was busy in collecting the cash, Jatin Seth was busy in making entry in register and preparing the chits with the help of the laptop and Sushil Chopra was busy in FIR No:515/2006 , State Vs. Rajat Sharma etc 9 attending telephone and watching match on T.V.
11.Furthermore, SI Suresh Kumar apprehended three persons with the help of raiding party members. On enquiry, their name revealed as Rajat Sharma, Jatin Seth and Sushil Chopra. SI Suresh Kumar prepared the pullanda of the articles which were taken into the possession vide memo Ex.PW1/A which bears signature of the witness of the witness at point B. One black small bag was recovered from the possession of the accused Rajat Sharma and on search it was found Rs.6,750/ including Rs.500/ which was handed over to HC Hari Om. The pullanada of the said bag was prepared and sealed with the seal of SK and the same was taken into police possession vide seizure memo which is already Ex.PW1/C which bears signature of the witness at point B.
12.According to PW2 SI Suresh Kumar recovered Hans Writing pad and prepared the pullanda and sealed with the seal of SK and the same were taken into police possession vide memo which is already Ex.PW1/E which bears signature of the witness at point B. SI Suresh Kumar also took the possession of the said Assent car vide seizure memo which is already Ex.PW1/D which bears my signature of the witness at point B. Seal was handed over to HC Hari Om after use. SI Suresh Kumar prepared the tehrir and handed over to PW2 for the registration of FIR who went to the police station and got registration of FIR. PW2 returned to the spot with original tehrir and copy of FIR and the same were handed over to ASI Rajbir Singh/IO prepared the site plan at the instance of SI Suresh Kumar. IO interrogated the accused persons. IO arrested and carried out personal search of the accused persons namely Rajat Sharma, Jatin Seth and Sushil Chopra, the accused FIR No:515/2006 , State Vs. Rajat Sharma etc 10 persons were correctly identify by PW2. The memos are Ex.PW2/A to Ex.PW2/F which bears signature of the witness of PW2 at point A. The accused persons were released on furnishing the bail bond. The case property were deposited in the Malkhana. IO recorded the statement of PW2. The identity of the case properties are not disputed and the same are already Ex.P1 to Ex.P6.
PW :: Sh. Hitesh Chandok S/o late Sh. Ramesh Lal Chandok, R/o F
1172, 3rd Floor, C.R. Park and presently residing K 31A,
rd
3
Floor,
Lajpat Nagar, New Delhi.
13.PW3 was the owner of H. No. F1172, 3rd Floor, C.R. Park, New Delhi which was sold by him. In the month of November, 2006 PW3 had let out the said property to Sushil Chopra who is present in the court today (correctly identified) @ monthly rent of Rs.7500/. The Rent agreement was also executed between the parties and the same is Ex. PW3/A which bears signature of the witness at point A on each page. However, during the cross the said witness admitted that he had no personal knowledge of the present case.
PW5 :: Neelam Sharma, Age 60 years, W/o Late Sh. AK Sharma, R/o
H 120, IInd
floor, Vikaspuri, New Delhi.
14.PW5 is the registered owner of vehicle bearing No. DL9CC 4806.That vehicle was seized in this case by the police. Later on it was released superdari from the court. (The identity of the vehicle is not disputed by the accused persons).
FIR No:515/2006 , State Vs. Rajat Sharma etc
11
PW6 :: SI
Rajbir
Singh,
No. 451
D, SWR,
Crime
Branch,
RK
Puram, New Delhi.
15.On 26.11.06 PW6 was posted as a ASI in Anti Kidnapping Section, Crime Branch, Prashant Vihar, New Delhi. On that day at about 7:00 pm he received an information that SI Suresh Kumar had apprehended some gamblers at F1172, IIIrd floor, CR Park. The investigation was marked to him. The PW6 reached at the spot and found SI Suresh Kumar alongwith staff i.e. HC Hari Om, HC Virender etc. SI Suresh Kumar sent HC Virender to PS CR Park for registration of the FIR. SI Suresh Kumar also had already apprehended three accused persons namely Sushil, Rajat and Jatin. Accused Sushil and Jatin were identified by PW6 in the court. The identity of the accused Rajat Sharma is not in dispute. He interrogated all the accused persons. In the meantime HC Virender got the FIR registered and came back at the spot and handed over the copy of FIR and original rukka to him. He arrested all the three accused persons and their personal search was conducted vide Ex.PW 2/A to Ex. PW 2/F, all bearing his signature of the witness at point B. All the accused persons were released on bail. He prepared the site plan Ex. PW 1/G bearing his signature of the witness at point A at the instance of SI Suresh Kumar. The PW6 collected the lease agreement of house bearing no. F1172, IIIrd floor, CR Park, New Delhi from the landlord namely Hitesh. The said lease agreement is Ex. P7. He got deposited the case property which was already seized by SI Suresh Kumar, in malkhana PS CR Park. He recorded the statement of the witnesses, prepared the charge sheet and submitted in the Court.
PW 7 :: ASI Hari Om, No. 1009, Railway and Metro, PS Yamuna FIR No:515/2006 , State Vs. Rajat Sharma etc 12 Depot Metro, New Delhi.
16.On 26.11.06 PW7 was posted as HC at Anti Kidnapping Cell, Prashant Vihar, New Delhi. On that day SI Suresh Kumar received the secret information that a person namely Rajat Sharma who was residing at H120, IInd floor, Vikaspuri, New Delhi is involved in gambling regarding the cricket match which was being played between India and South Africa. The Secret informer also informed that the place (from where Rajat Sharma operate) was known only to the customers. DD No. 5 was recorded. The Secret informer also told that the black accent car no. DL9CC 4806 would be parked near the house of Rajat Sharma. Accordingly, SI Suresh Kumar, PW7 and HC Virender went to House No. H120, Vikaspuri to verify the information. They found that a vehicle bearing no.DL9CC 4806 was parked near the house No. H120, Vikaspuri. The Secret informer was also with them and he pointed towards the car. SI Suresh Kumar instructed PW7 to chase that car and conceal our identity to verify the place of gambling. At around 1:00 - 1:30 pm we started chasing that car and during the chase of that car three persons boarded in the car at different places and finally that car stopped at F1172, CR Park. All the persons went on the top floor of the house. HC Virender informed SI Suresh regarding all the incident. SI Suresh also arrived at the spot i.e. F 1172, CR Park alongwith secret informer. SI Suresh Kumar verified all the facts and obtained search warrant from DCP. At about 4:00 pm I, HC Virender,secretinformer and SI Suresh K umar gathered near main road Savitri cinema. SI Suresh Kumar requested few public persons to join the investigation but they refused to join the investigation. Due to paucity of time FIR No:515/2006 , State Vs. Rajat Sharma etc 13 notice could not be served upon them. ASI Hari Om (PW7) was planted as a decoy customer and HC Virender as a shadow witness. SI Suresh Sharma gave me a currency note of the denomination of Rs.500/ duly signed by him and prepared the memo of the same and instructed him to introduce myself as one Hira and to bet in the match for India. At about 5:00 pm the said witness alongwith HC Virender went to the top floor of the house bearing No. F1172, CR Park where we found that three persons were inside the room and were making entries in the laptop and registers and a cricket match was being shown on the television. Several phones were also lying there and they were kept on ringing. Hegave Rs.500/ to Rajat Sharma for betting. (The identity of accused Rajat Sharma is not in dispute.) Accused Jatin Seth, (identified by the said PW), gave him a receipt and told me that in case of win of India I will receive Rs.850/ and in case of defeat of India I will get nothing. Thereafter he gave signal to SI Suresh Sharma and he also arrived on the top floor. SI Suresh Sharma seized the articles, through different seizure memos and duly sealed with the seal of SK vide Ex. PW 1/A and Ex. PW 1/E bearing signature of the witness at point B. He handed over the betting receipt which was given to him by Jatin Seth, to SI Suresh Sharma, who seized the same in a brown envelope and duly sealed withthe seal of SK vide seizure memo Ex. PW 1/B bearing signature of the witness at point B. Accused Rajat Sharma also got recovered the cash around Rs.6,750/ which was kept in a small black colour bag which was also containing the currency note which was given to accused Rajat Sharma by me. All the cash were kept in a brown colour envelope and duly sealed with the seal of SK vide seizure memo Ex. PW 1/C bearing signature of the witness at point B. Car bearing FIR No:515/2006 , State Vs. Rajat Sharma etc 14 no. DL9CC 4806 was also seized vide Ex. PW 1/D bearing signature of the witness at point B. Seal after use was handed over to me. SI Suresh Sharma prepared the rukka and gave it to HC Virender and sent him to PS CR Park for registration of FIR. ASI Rajbir Singh also arrived at the spot and SI Suresh Sharma handed over all the documents, accused and case property to him. ASI Rajbir arrested all the accused persons and their personal search was carried out vide Ex. PW 2/A to Ex. PW 2/F all bearing signature of the witness at point C. The witness could identify the case property. The identity of the case property is already established in the testimony of PW 1 and PW 2 and same are already Ex. P1 to P6.
17. Statement of accused persons were recorded on 27092014. In his statement accused Jatin Kumar @ Jully denied all the incriminating evidence and stated that he has been falsely implicated in the present case and the witnesses who have deposed against him are interested witnesses, he has nothing to do with the above said offence, he is innocent and nothing has been recovered from him nor at his instance.
In his statement accused Sushil Chopra denied all the incriminating evidence. However, he has admitted that the premises was taken on rent from Hitest Chandok for residential premises but it is wrong that any Satta was being done by them at the said premises. He further stated that he has been falsely implicated in the present case and the witnesses who have deposed against him are interested witnesses. he has nothing to do with the above said offence, he is innocent and nothing has been recovered from him nor at his instance.
FIR No:515/2006 , State Vs. Rajat Sharma etc 15 In his statement accused Rajat Sharma denied all the incriminating evidence and stated that he has been falsely implicated in the present case and the witnesses who have deposed against him are interested witnesses, he has nothing to do with the above said offence, he is innocent and nothing has been recovered from him nor at his instance.
THE DELIBERATIONS:
18.It would be relevant to reproduce the provisions of The Delhi Public Gambling Act, 1955 :
S. 2(iii) "Common gaminghouse" means any house or room or tent or enclosure or vehicle or vessel or any piece whatsoever in which any instruments of gaming are kept or used for gaming purposes "S.3.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 open, keeps or uses the same as a common gaminghouse; 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, occupied, used or kept by any other person as a common gaminghouse; and WHOEVER has the care or management of, or in any manner FIR No:515/2006 , State Vs. Rajat Sharma etc 16 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. (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."
19.The new Encyclopaedia Britannica defines gambling as "The betting or staking of something of value, with consciousness of risk and hope of gain on the outcome of a game, a contest, or an uncertain event the result of which may be determined by chance or accident or have FIR No:515/2006 , State Vs. Rajat Sharma etc 17 an unexpected result by reason of the better's miscalculations". According to Black's Law Dictionary (Sixth Edition) "gambling involves, not only chance, but a hope of gaining something beyond the amount played. Gambling consists of consideration, an element of chance and a reward"...... Gambling in a nutshell is payment of a price for a chance to win a prize.
20.Games may be of chance, or of skill or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows or can know what it will be until the dice is thrown, the wheel stops its revolution or the dealer has dealt with the cards.
21.A game of skill, on the other hand although the element of chance necessarily cannot be entirely eliminated is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even Rummy are considered to be games of skill. The courts have reasoned that there are few games, if any, which consist purely of chance or skill, and as such a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is the dominant element "skill" or "chance" which determines the character of the game.
22.Before going further I need to quote from the judgment of the Hon'ble Supreme Court State of Bombay Vs. R.M.D. Chamarbaugwala A.I.R., 1957 S.C. 699 speaking through S.R. Das, C.J. observed as FIR No:515/2006 , State Vs. Rajat Sharma etc 18 under :
"(38) From ancient times seers and law givers of India looked upon gambling as a sinful and pernicious vice and deprecated its practice. Hymn XXXIV of the Rigveda proclaims the demerit of gambling, Verses 7, 10 and 13 : "7. Dice verily are armed with goads and driving hooks, deceiving and tormenting, causing grievous woe. They give frail gifts and then destroy the man who wins, thickly anointed with the player's fairest good.
10. The gambler's wife is left forlorn and wretched: the mother mourns the son who wanders homeless. In constant fear, in debt, and seeking riches, he goes by night unto the home of others.
11. Play not with dice: no, cultivate thy cornland. Enjoy the gain, and deem that wealth sufficient. There are thy cattle, there thy wife, O gambler, so this good Savitar himself hath told me." The Mahabharata deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their kingdom."
"While Manu condemned gambling outright, Yajnavalkya sought to bring it under State control but he too in verse 202 (2) provided that persons gambling with false dice or other instruments should be branded and punished by the king. Kautilya also advocated State control of gambling and, as a practical person that he was, was not averse to the State earning some revenue therefrom.
FIR No:515/2006 , State Vs. Rajat Sharma etc 19 Vrihaspati dealing with gambling in chap. XXVI, verse 199, recognises that gambling had been totally prohibited by Manu because it destroyed truth, honesty and wealth, while other lawgivers permitted it when conducted under the control of the State so as to allow the king a share of every stake. Such was the notion of Hindu Lawgivers regarding the vice of gambling. Hamilton in his Hedaya vol. IV, Book XLIV, includes gambling as a Kiraheeat or abomination.
{also see Dr. K.R. Lakshmanan vs State Of Tamil Nadu And Anr : 1996 AIR 1153, 1996 SCC (2) 226)}
23.The law on gambling was formulated to curb the menace of 'gambling'. As far as betting in sports is concerned - particularly cricket - the 'agents of gambling' involve the general public and the 'sport' is lost. What remains is greed and more greed. The only gaming that remains is that of 'gambling'. The obsession with cricket coupled with gambling has become a dangerous mix. The recent controversies of cricket has taken 'gambling' to a precarious levels. The prevailing laws appear 'inadequate'.
24. As far as the present case is concerned the testimony of the prosecution witnesses have been able to establish the offense. The testimony of PW1: Inspector Suresh Kumar No. D3333 Anti Extortion Cell Crime Branch, R.K. Puram is essential to prove that there was enough material to infer that the premises was used as a common gaminghouse. The said witness PW2 had clearly testified how he had the information and how he had followed the accused Rajat Sharma from Vikas Puri till C.R. Park. He also deposed that he FIR No:515/2006 , State Vs. Rajat Sharma etc 20 had obtained prior warrant (to search the house No.F1172, Top Floor, C.R. Park) from the DCP under S.5 of the Delhi Public Gambling Act, 1955. The testimony of PW1 is crucial because various materials pointing towards the ingredients of the offence under S.3 & S.4 of the DPG Act, 1955 - have been proved and exhibited by the said witness. During the testimony of the said witness the MHC (M) produced the case property consisting of two sealed envelopes with the seal SK and two cloth duly sealed with the seal of SK all bearing the particulars of the case.
a. One envelope was opened up and the following case property was taken out :
i. One slip bearing one name as 'Heera' (70) S.A 350 + IND 500 - dated 26/11/ (this was shown to the witness who identified it as Ex. P1);
b. Another envelope was opened up and the following case property was taken out :
i. One small bag of black color containing cash Rs.6750/ (this was shown to the witness who identified it correctly as Ex. P2 collectively); The currency note of Rs.500/ bearing the signature of the witness of the witness (at point A) was separated by the said witness. This was the currency note which was given to the 'decoy customer' HC Hari Om code named 'Heera'.
c. One cloth was also openedup which contained :
FIR No:515/2006 , State Vs. Rajat Sharma etc 21 i. Two writing pads of the make 'HANS' bearing the account of satta;
ii. Three written loose papers also bearing the account of satta. /(these were shown to the witness who identified it correctly as Ex. P3 collectively);
d. Another cloth pulinda containing:
i. one land line phone instrument of the make of BEETEL;
ii. Calculator (CITIZEN) iii. 8 cell phones (all 'NOKIA' ) iv. 5 mobile chargers, v. 4 pens, vi. 1 stepler;
vii. one extension cord, viii. 1 laptop (COMPAQ) ix. and some loose papers were put in the laptop bag and se aled with the seal of SK FIR No:515/2006 , State Vs. Rajat Sharma etc 22 These were shown to the witness who identified it correctly as Ex. P4 collectively). The ASCENT car (Ex. P5) and the T.V (Ex. P6) were not produced but the accused persons raised noobjection in that regard.
25. The 'instruments of gaming' is an essential ingredient of the offence under S.3 & 4 of the Act. The testimony of PW1 thus proves to the case of the prosecution to the basic requirement that the prosecution 'must' prove its case. Sections 101 and 102 of Evidence Act clearly states that burden of proof lies on the person who desires the court to give a judgment on a legal right or liability and who would otherwise fail if no evidence was given on either side. When an accused is faced with criminal charges, the prosecution must prove their version of the facts beyond a reasonable doubt. This means that each and every element of the crime charged must be proved beyond a reasonable doubt. Beyond a reasonable doubt means that there is proof that you would be willing to rely and act upon without hesitation in your own affairs. Beyond a reasonable doubt doesn't mean an absolute certainty.
26.The articles recovered by the police are duly proved in the court. The prosecution witnesses have correctly identified all the accused persons. It is well settled that the valid identification is the one which takes place in the dock.
27.Now I come to the provision of S.4(2) law raises a presumption in favour of the prosecution and against the accused.
S.(2)Whoever is found in any common gaminghouse during any gaming or playing therein shall be presumed, until the FIR No:515/2006 , State Vs. Rajat Sharma etc 23 contrary is proved, to have been there for the purpose of gaming.
28.Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another. It is for the prosecution, only to discharge initial onus of proof. Whether in the given facts and circumstances of a case, the initial burden has been discharged by an accused would be a question of fact. It was matter relating to appreciation of evidence.
29.In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, at page 3697, the term 'presumption' has been defined as under:
"A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known.
A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof.
A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged but of which there is no direct proof. It follows, therefore that a presumption of any fact is an inference of that fact from others that are known".
FIR No:515/2006 , State Vs. Rajat Sharma etc 24 (per ABBOTT, C.J., R. v. Burdett, 4 B. & Ald, 161) The word 'Presumption' inherently imports an act of reasoning a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we known to be invariably, or commonly, connected with some other related facts. (Wills on Circumstantial Evidence) A presumption is a probable inference which common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability, and there are almost infinite shades from slight probability to the highest moral certainty. A presumption, strictly speaking, results from a previously known and ascertained connection between the presumed fact and the fact from which the inference is made."
30.In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act (the interpretation clause) to mean: "Proved" A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
FIR No:515/2006 , State Vs. Rajat Sharma etc 25 'Disproved' A fact is said to be disproved when, after considering the matters before it the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."
31.The meaning of the expressions "may presume" and "shall presume"
have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the Court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression "shall presume" cannot be held to be synonymous with "conclusive proof. In terms of Section 4 of the Evidence Act, whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
32.A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.
33.In the present case the accusedpersons have offered no evidence to rebut the statutory presumption. The prosecution has been able to show that the accusedpersons were present at the spot. The arguments raised by the defence is limited to the other aspects. Some of the defencearguments such as: the material not being sent to the FIR No:515/2006 , State Vs. Rajat Sharma etc 26 CFSL etc. are not reflected in the crossexamination of the prosecution witness. The suggestions were put in order to establish that the raid had never taken place. As far as the statutory presumption under S.4(2) Delhi Public premises Act, 1955 is concerned, the accused have not put up any defence. Mere denial on the part of the accused is not enough to prove his innocence. In my view, the accused has not been able to rebut the statutory presumption as required in law. In that regard S.9 of the act also lightens the burden of the prosecution inasmuch that the prosecution need not even prove that any person found playing at any game was playing for any money, wager or stake.
S.9 : It shall not be necessary, in order to convict any Proof of person of keeping common gaming house or of being concerned in the management of any gaminghouse to prove that any person found playing at any game was playing for any money, wager or stake.
WHETHER THE PWs ARE NOT RELIABLE MEERELY BEING POLICE WITNESSES
34.The accusedpersons have stated in their statements under S.313 Cr.P.C. that the PWs were interested witnesses. The defence has argued that the policeofficers cannot be trusted as witnesses. In that regard the law is clear that merely being police officer will not make such witnesses 'unreliable'. Rejecting a similar contention in Kashmiri Lal Vs. State of Haryana (2013) 6 SCC 595, the Hon'ble Supreme Court inter alia observed as under:
"9. ....there is no absolute command of law that the police FIR No:515/2006 , State Vs. Rajat Sharma etc 27 officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another (2001) 1 SCC 652 and Ramjee Rai and others v. State of Bihar (2006) 13 SCC 229."
35.Dealing with a similar contention in Ram Swaroop Vs. State (Govt. NCT) of Delhi 2013 (7) SCALE 407, where the alleged seizure took place at a crowded place yet no independent witness could be associatedwith the seizure, the Apex Court inter alia observed as under:
"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for nonexamining the independent FIR No:515/2006 , State Vs. Rajat Sharma etc 28 witnesses."
THE PROSECUTION HAS BEEN ABLE PROVE ITS CASE:
36.The prosecution has been able to show that the three accused persons were present at the scene of offense. The witness PW2 further deposed that he alongwith HC Hari Om went to House No. F 1172, Top Floor, C.R. Park. They entered and found 3 persons were sitting in the room. HC Hari Om gave Rs. 500/ to the accused Rajat Sharma for victory of India in the Match with South Africa. The accused Jatin Seth gave a chit to HC Hari Om. HC Hari Om gave signal towards the raiding party members and they entered the said house. The accused Rajat Sharma was busy in collecting the cash, the accused Jatin Seth was busy in making entry in register and preparing the chits with the help of the laptop and the accused Sushil Chopra was busy in attending telephone and watching match on T.V. The defence side could not illicit much from PW2 during the cross. The witness PW2 remained unshaken on the crucial aspects of the case. The confronting of the said witness with the statement under S.161 Cr.P.C. was also minor.
37.The prosecution has been able to prove that the raid had happened and that the accusedperson Rajat Sharma was duly followed from his Vikas Puri residence. The prosecution has been further able to prove that the operation was conducted in the C.R. Park house albeit no public witness was willing to join the raid. The testimony of all the police witnesses particularly PW1 & PW2 have clearly established that 'efforts' were made by the police to have 'public witnesses' during the search proceedings. However, no public witness joined. I may add that nonexamination of the 'public witnesses' is not always FIR No:515/2006 , State Vs. Rajat Sharma etc 29 fatal. As far as the Delhi Public Gambling Act, 1955 is concerned, the statute does not impose such rigors during the search proceedings. The information received by PW1 was sensitive and the time was too short. Even then, efforts were made and some public persons were asked to join.
THE PLACE BEING USED AS THE COMMON GAMING PLACE:
38. The place being used as the 'common gaming place' is an essential ingredient of the offence under S.3 & 4 of the Delhi Public Gambling Act, 1955. In that regard the search warrant dated 26th Nov. 2006 (Ex. PW - P A) has to be considered. It says that credible information had been received and that the authority (DCP Crime & Railways) was satisfied that there were reasonable grounds to believe that the House No. F1172, Chitranjan Park, New Delhi (as per the plan) was being used as a 'common gambling house'.
39.The expression 'reasonable grounds' or having 'reason to believe' has been considered and interpreted in a catena of judgments. The consensus of opinion seems to be that the said phrase indicates a subjective satisfaction of the Officer; he need not divulge or put forth before the Court either the source from where he got the material or information or what was the material or information on which he reached the conclusion that there is reason to believe that any place is used as a common gaming house. That being his subjective satisfaction it is not open to the Court to substitute its own satisfaction to that of the Officer concerned. Whether the material or the information available to the concerned Officer was proper or not, or it was adequate or not to act under Section 5 of the Act is again for the consideration of the Officer concerned and not for the Court. When Section 5 entrusts that function to the DCP it is for him to realise the consequences of the serious step he was taking in FIR No:515/2006 , State Vs. Rajat Sharma etc 30 conducting the search. But it is he who has to make up his mind on the material placed before him and not for this court to examine the material which was available to the DCP in order to see whether the material was proper or sufficient.
40.This position of law is supported by a decision of the Supreme Court in Ashutosh v. State of Delhi, . Their Lordships decided:
"The satisfaction of the authority making the order as to the matters specified in the Act is the only condition for the exercise of his powers and the Court cannot substitute its own satisfaction for that of the authority. It is, however, open to the accused to establish, if he can, that the order was made mala fide and in abuse of powers and the order of investigation be declared invalid if it could be proved to have been made by the authorities concerned in mala fide exercise of their power. The burden of proving the absence of good faith is upon the accused and it is certainly a heavy burden of discharge. Mere suspicion is, however, not proof."
41.To the similar effect is the oftquoted decision of the House of Lords in Liversidge v. Sir John Anderson, 1942 A.C. 206. This conclusion finds sufficient support from the many subsequent decisions.
42.Looking at the entire Prosecution Evidence, the necessary ingredients of the offence are satisfied. When the raiding party reached the spot the accusedpersons were absorbed / busy in placing the respective bets of their customers. The incriminating articles were recovered and PW1 & PW2 have testified to that effect. The defence could not explain many aspects against the accused persons.
43. The defence has vehemently argued that the DCP - Crime & Railways (who had issued the search warrant 26th Nov. 2006 {Ex. PW - P A} ) FIR No:515/2006 , State Vs. Rajat Sharma etc 31 had not been examined. In that regard I am of the firm opinion that the search warrants were issued after there was 'reasonable belief' on part of the authority. In view of the judgments as abovementioned, the prosecution case is not jeopardised due to the nonexamination of the concerned authority (DCP - Crime & Railways).
THE NONJOINING OF THE 'PUBLIC WITNESSES':
44.As regards public witnesses not being joined, it has come in the deposition of prosecution witnesses that a few persons were requested to join the police team but no one agreed to be associated with them. It cannot be disputed that the public does not want to get dragged in police and criminal case and wants to avoid them, because of long drawn trials and unnecessarily harassment. Similar view was taken in Manish Vs. State, 2000 VIII AD (SC) 29 and in A. Bhai Vs. State of Gujrat, AIR 1980 SC 696. We can't be oblivious to the reluctance of common men to join such raiding parties organized by the police, lest they are compelled to attend Police Station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Hence, no adverse inference on account of failure to join public witnesses in such raids despite genuine efforts should be drawn.
45. Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and FIR No:515/2006 , State Vs. Rajat Sharma etc 32 regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed. In Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746 it was held thus:
"...The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
46. In Ramjee Rai and others v. State of Bihar (2006) 13 SCC 229, it has been opined : "26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward."
47.In that regard I also quote the Hon'ble Justice Mukta Gupta (writing for the DB) Delhi High court :
"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it.
FIR No:515/2006 , State Vs. Rajat Sharma etc 33 Its hangover persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signature of the witness of independent persons in the documents made contemporaneous with such actions."
{also see State, Govt. of NCT of Delhi v. Sunil & Anr. (2001) 1 SCC 652}
48.The Supreme Court in many cases has highlighted the fact that gambling and lotteries encourage spirit or prosperity for making easy gain by lot of chance, which leads to loss of hard earned money of a FIR No:515/2006 , State Vs. Rajat Sharma etc 34 common man. This has the effect of lowering his standard of living and driving him into chronic state of indebtedness which eventually disturbs peace and happiness of his home.
49.In view of the facts and the circumstances of the case and the statutory provisions of the Delhi Public Gambling Act, 1955, I am of the opinion that the prosecution discharged its initial onus and has been able prove its case. The accusedpersons were unable to rebut the statutory presumption u/s 4(2) of the Delhi Public Gambling Act, 1955. Even otherwise - after considering the entire incriminating material / evidence -the accusedpersons have not been able to dent the prosecution version. Accordingly, all the accusedpersons are convicted:
i. Rajat Sharma @ Minku s/o Late Sh. Arun Kumar Sharma r/o House No. H120, 2nd Floor, Vikas Puri New Delhi; (convicted u/s 3 & 4 of the Delhi Public Gambling Act, 1955) ii. Jatin Seth s/o Sh. Raj Kumar Seth r/o F5, Poorvi Apartments, Vikas Puri, New Delhi (convicted u/s 3 & 4 of the Delhi Public Gambling Act, 1955) iii. Sushil Chopra @ Vicky s/o Sh. Ram Saroop Chopra r/o E55/58 Nirmal Puri, Lajpat Nagar, New Delhi; (convicted u/s 3 & 4 of the Delhi Public Gambling Act, 1955) FIR No:515/2006 , State Vs. Rajat Sharma etc 35 Now to come up for sentence on 14102014.
Announced in the open court.
(VEENA RANI) Chief Metropolitan Magistrate South East District / Saket Courts New Delhi/09102014 FIR No:515/2006 , State Vs. Rajat Sharma etc