Delhi District Court
State vs . : Prashant Kumar Malik & Oths. on 1 June, 2010
IN THE COURT OF SH. SHAILENDER MALIK:
METROPOLITAN MAGISTRATE (NORTH)
TIS HAZARI COURTS: DELHI
State Vs. : Prashant Kumar Malik & Oths.
FIR No : 204/07
U/s : 3,4,5 of Delhi Police Gambling Act
P.S. : Kashmere Gate
JUDGMENT
S.N. Particulars Details
1 Serial number of the case : Not mentioned
2 Date of commission of offence : 25.04.07
3 Date of institution of the case : 22.09.07
4 Name of the complainant : SI Mahaveer Singh
5 Name of accused, parentage & : (1) Prashant Kumar Malik S/o
address Late Sh. Deen Dayal Malik,
R/o H.No. 3567, Ram Bazar,
Gali Jain, Kashmere Gate,
Delhi
(2) Vickey Grover, S/o Sh.
Prithvi Pal Grover, R/o H. No.
3089, Bhim Gali, Ram Bazar,
Mori Gate, Delhi
6 Offence complained or proved : 3,4,5 of DPG Act
7 Plea of the accused : Pleaded not guilty
8 Final Order : Both the accused convicted
9 Date of reserve for order : 19/05/10
10 Date of final order : 01/06/10
Brief facts of the case:
1. Accused Prashant Kumar Malik S/o Late Sh. Deen Dayal Malik and Vickey Grover S/o Sh. Prithvi Pal Grover have been sent up to fact trial for offence U/s 12 of Delhi Public Gambling Act. Factual matrix of the matter is that on 25.04.07 at about 08.20 pm one secret informer met with SI Mahavir Singh at Operations Cell (North) and informed him that one person namely, Prashant Kumar Malik in the room at second floor of his residence at House no. 3567, Ram Bazar, Gali Jain, FIR No. 204/07 1 State Vs. Prashant Kumar Malik & Oths.
Kashmere Gate, Delhi is organizing and playing betting with the help of his mobile phone at the Cricket match of World Cup played between Australia and South Africa. The said information was conveyed by SI Mahavir Singh to the Inspector and ACP of Operations Cell, who instructed him to immediately go to office of DCP (North) and get issue the search warrants in terms of Section 5 of DPG Act and to take steps immediately. Accordingly, SI Mahavir Singh along with SI Gajender Kumar, HC Rakesh Kumar, HC Mahender Kumar, HC Braham Dev, Ct. Ashok vide DD no. 31 at 08.37 pm dated 25.04.07 went to the DCP Office, Civil Lines and after informing the facts to DCP, obtained the search warrants U/s 5 of DPG Act and thereafter at about 09.30 pm above said police officials went to the informed place at Mori Gate Gali Jain where they stated to have requested 8/10 public persons to join the raiding party, but none of them agreed to join the raiding party and left the spot without disclosing their names and addresses. Accordingly SI Mahaveer Singh without waisting time, formed a raiding party and upon pointing out of secret informer at about 09.40 pm they proceeded to House no. 3567 and went upstairs at 2nd Floor where they found two persons were sitting on a bed and they were talking on their mobile phones and cricket match was being telecasted on a television and one laptop was also there in switch on condition. Both the said persons were apprehended by SI Mahavir Singh with the help of raiding party and upon inquiries their names were revealed to be Prashant Malik S/o Late Sh. Deen Dayal Malik and Vickey Grover S/o Prithvi Rao Grover and upon inquiries Prashant Kumar told that he was organizing and playing betting (satta) on the cricket match which was being played between Australia and South Africa, and they were taking bids in the betting from their acquainted persons through phone by various methods and accused persons disclosed that by that time they had already taken bids in betting for Rs. 8,55,000/-and they have made entries in this regard in the register (on the cover of which Freedom Deluxe Long Exercise Book was written) and in their laptop.
2. SI Mahaveer Singh stated to have checked the said register and FIR No. 204/07 2 State Vs. Prashant Kumar Malik & Oths.
found certain entries in that register in code words and from the mobile no. 9873726667 which accused Prashant Malik was holding in his right hand was also checked and many incoming calls were found in that mobile phone and upon search of accused Prashant Malik three other mobile phones were also recovered whose nos. were (1) 931376868827, (2) 9311356787, (3) 9212448388. Upon inquiries, accused Prashant Malik disclosed that in order that any of the bidder should not wait for making his bid in the betting he keeps all the above said mobile phones to received the bids in the betting. Similarly, from accused Vickey Grover also one phone no. 9971267775 was also recovered from the right hand of the accused Vickey Grover, which was also being used to take bids in the betting of cricket match.
3. Thereafter, SI Mahaveer Singh switched off the laptop (Compaq) of accused Prashant Malik and kept in the custody along with the accessories, in a cloth and wrapped it to make it a pullinda which was sealed with seal of MS. Similarly, the said register was also taken in a pullinda and was sealed with the seal of MS. Other articles like mobile phones, TV etc. were also taken into police possession. On the basis of the tehrir sent by the IO, present case was registered.
4. After registration of the case, SI Naseeb Singh also reached at the spot and prepared the site plan at the instance of SI Mahaveer Singh and custody of the accused and the case property was taken into possession and statement of different witnesses were recorded and accused was also arrested and were subsequently, released on police bail. In the course of investigation, accused Prashant Kumar Malik was called upon to furnish the documents of ownership of House no. 3536, Ram Bazar, Mori Gate and he had given four photocopies of documents of ownership to IO which were also taken on the police record.
5. Upon completion of investigation, charge sheet was filed in the court and after considering the material available on the recored this court vide order dated 13.01.10 framed the charge for offence U/s 12 of Delhi Police Gambling Act against the accused persons, to which both FIR No. 204/07 3 State Vs. Prashant Kumar Malik & Oths.
the accused pleaded not guilty and claimed trial.
6. In order to substantiate the charge, prosecution has examined as many as ten witnesses. PW1 is ASI Narender, who has testified that on 25.04.07 he was posted in SO Branch of Office of DCP, Noth Distt. Civil Lines, Delhi and Sh. Devesh Chander Srivastava was working as DCP on that day. He is acquainted with the signatures of said DCP and has brought the record pertaining to the proceedings relating to the search warrants issued U/s 5 of DPG Act for conducting search in the premises no. 3567, Ram Bazar Mori Gate, Second Floor, Kashmere Gate, Delhi. He has proved the signatures of the said DCP on the search warrants dated 25.04.07 bearing no. 10849/SO-DCP-North (AC- V). The same is Ex. PW1/A.
7. PW2 is SI Nasib Singh, who has testified that on 25.04.07, while he was posted at Operation Cell, North District, investigation of this case FIR No. 204/07 of PS Kashmere Gate was handed over to him vide DD No. 32 Operation Cell. After receiving the information, PW2 stated to have gone to House No. 3567, Second Floor, Ram Bazar, Jain Gali, Mori Gate, Kashmere Gate where he met with SI Mahavir Singh at the spot along with SI Gajender Singh, HC Braham Dev, HC Mahender Singh, HC Rajesh Kumar and Ct. Ashok. PW2 says SI Mahavir produced both the accused and handed over seizure memo of Sony TV, one Laptop, five mobile phones and one register. The register was sealed in an envelope with the seal of "MS". Laptop was also sealed with the seal of RS. SI Mahavir also handed over PW2 to search warrant Ex. PW1/A and also handed over one site plan mark A. SI Mahavir also stated that accused persons were found gambling by inviting people to bet regarding the result of ongoing cricket match between South Africa and Australia. PW2 says when he arrived at the spot, SI Mahavir had already prepared a therir which was handed over to HC Braham Dev for getting the FIR registered. PW2 further states that in the meanwhile he had prepared site plan Ex. PW2/A in the presence of SI Mahavir. After the arrival of HC Braham Dev, PW2 stated to have entered the FIR Number in the seizure memo and in the site plan. PW2 further states that he FIR No. 204/07 4 State Vs. Prashant Kumar Malik & Oths.
recorded statement of SI Mahavir Singh and thereafter SI Mahavir Singh left the spot. PW2 stated to have interrogated both the accused person and after interrogation he arrested accused Prashant Kumar vide arrest memo Ex. PW2/B and Vicky Grover vide memo Ex. PW2/C. and their personal search memo are Ex. PW2/D and E respectively. PW2 also recorded disclosure statement of accused Prashant Kumar which is Mark X. Accused stated to have made a supplementary disclosure statement also which is Mark X1. PW2 says during the investigation he collected copy of relinquishment deed which is in the name of Smt. Kiran Malik, mother of the accused Prashant Malik, which is Mark-Y regarding the possession of the premises. During the investigation PW2 had ascertained subscription details of the SIM card used in the mobile phones recovered from the accused persons and it was found that phone number 9311355677 was in the name of Gaganpreet Singh, that of phone number 9871267776 was in the name of Arvind whereas 9971267775 was in the name of Prashant Malik. During the investigation, it was also discovered that subscription of phone no. 9212248388 was in the name of Arif Chaudhary. PW2 further states that he had deposited the case property in Malkhana and recorded the statement of witnesses. After completion of investigation PW2 forwarded the final report through SHO. The said five mobiles are Ex. P1 to P5 and the TV is Ex. P6.
8. PW3 is HC Braham Dev, who has testified that on 25.04.07 while he was posted at Operation Cell, North District, on that day at about 8.20 pm, SI Mahavir Singh shared with him a secret information to the effect that at premises no. 3567, Second Floor, Ram Bazar, Jain Gali, Mori Gate, Kashmere Gate, that some persons are gambling by betting for the result of cricket match between Australia and South Africa. PW3 says that said information was already shared with senior officers and search warrants were obtained. PW3 along with SI Mahavir Singh, SI Gajender Singh, HC Mahender Singh, HC Rajesh Kumar and Ct. Ashok had formed a raiding party and arrived at the informed place along with the secret informer. PW3 says that some FIR No. 204/07 5 State Vs. Prashant Kumar Malik & Oths.
public persons were asked to join the raiding party but none of them agreed. PW3 says that they thereafter entered in the second floor of the said premises through the stairs and noticed that both the accused persons facing the trial were sitting in the room and they were talking on mobile phones. There was one laptop and was register. One TV was also affixed there in the room. On which cricket match between Australia and South Africa was being shown. PW3 further says that both the accused persons were apprehended and the laptop was sealed in a cloth pullanda with the seal of MS and the register was also seized separately with the seal of MS. Five mobile phones recovered from the accused persons were also seized. All th articles were seized separately vide separate seizure memos. PW3 further states that TV was seized vide memo Ex. PW3/A, mobile phones vide memo Ex. PW3/B, laptop and register vide memo Ex. PW3/C. PW3 says that thereafter, SI Mahavir prepared a tehrir and handed it over to him and he accordingly took the same to PS Kashmere Gate and got FIR registered. PW3 returned at the spot after getting FIR registered, however, according to PW3 before he reached, SI Nasib Singh had already arrived at the spot at about 11.00. SI Nasib Singh had conducted further investigation as second IO in the present case. SI Nasib Singh had arrested the accused persons vide memo Ex. PW2/B and Ex. PW2/C. Their personal search was conducted vide memo Ex. PW2/D and E. SI Nasib Singh had recorded statement of witnesses. The accused persons were gambling by way of betting and taking bets regarding the results of the cricket match being played between Australia and South Africa. The register was being used for the purpose of making entries regarding the bets which were being fixed on mobile phone. The laptop was also being used for the purpose of recording particulars of the bets. The said register is Ex. P7 and the laptop is Ex. P8.
9. PW4 is HC Rajpal, is duty officer who proved the formal FIR Ex.
PW4/A. PW5 is R.K. Singh, Nodal Officer, Bharti Airtel Ltd, who had brought the record pertaining to Mobile Phone no. 9871267776 and as FIR No. 204/07 6 State Vs. Prashant Kumar Malik & Oths. per the record it was subscribed by one, Mr. Arvind R/o E-789, Dauba Colony, Faridabad, Haryana. Mobile phone no. 9971267775 as per our record has been subscribed by Mr. Prasant Malik R/o 3567, Gali Jain, Ram Bazar, Mori Gate, Near Narula Sweet House, Delhi. The information regarding subscription details of both these mobile telephone numbers was provided to Delhi Police at their request and the details were conveyed through e-mail Ex. PW5/A.
10. PW6 is HC Rajesh, who was also the member of raiding party whose evidence is also on the same terms as PW3 HC Braham Dev. PW3 has testified that on 25.04.07 while he was posted at Operation Cell, North District, he joined raiding party consisting of SI Mahavir Singh, SI Gajender, HC Mahender, HC Brahamdev and Ct. Ashok. PW6 says that SI Mahavir shared the secret information with raiding party regarding "Satta" being organized by some people at House No. 3567, Ram Bazar, Jain Gali, Kashmere Gate. PW6 says about going by private vehicle to reach the office of DCP (North) where PW6 stated to have remained in the vehicle whereas SI Mahavir had gone inside the office and returned after about 15 minutes and thereafter, they all went to Jain Gali and arrived there at the corner of the Gali. PW6 says there SI Mahavir requested 8 to 10 passerby to join the raiding party after sharing the information with them, but none of those passerby joined the raiding party and refused on the ground that they were not having spare time and had given different excuses. PW6 says secret informer had accompanied them and indicated towards the stairs which lead to the informed place at the 2nd Floor of the relevant building. PW6 further states that they went inside the room on the 2nd floor and they found both the accused persons were sitting on a bed inside the room and both the accused persons were talking on mobile phones. They were talking about some bet (kitne ka lagana hai, etc.). PW6 further states that one TV was on telecasting ongoing cricket match between Australia and South Africa. One Laptop was lying on the bed in on condition. SI Mahavir asked from accused about what they were doing, to which accused replied that he was organizing and playing "Satta".
FIR No. 204/07 7 State Vs. Prashant Kumar Malik & Oths. Accused Prasant stated to have disclosed that he enters details of bets regarding results of over and session of match (to his knowledge session regarding cricket match means a spell of two or three overs) in a register. PW6 further states that a register was lying by the side of accused Prasant. Total 5 mobile phones instruments having live SIM were recovered from both the accused persons, however, PW6 do not remember the subscription numbers (mobile phone numbers) of those recovered mobile phone and he could not recollect the number of mobile phone in the name of accused Prasant, however, he disclosed phone number was 9873726667 as per his memory. PW6 further states that SI Mahavir sealed the laptop and its accessories in a cloth pullanda with the seal of "MS". The register recovered from the room was sealed in an envelope and the same was sealed with the seal of "MS". Both these articles were seized vide seizure memo Ex. PW3/C. The TV recovered from the room was seized vide seizure memo Ex. PW3/A. All the five mobile phones including the SIM card were seized vide seizure memo already Ex. PW3/B. Thereafter, SI Mahavir prepared a therir and sent HC Brahamdev to PS Kashmere Gate for the purpose of getting FIR registered. PW6 further states that HC Brahamadev returned with copy of FIR at about 12.30 am following on 26.04.07. SI Nasib Singh arrived at the spot before Braham Dev left with therir and by the time HC Braham Dev arrived, SI Mahavir had already left and before the leaving of SI Mahavir he had told to SI Nasib Singh about the incident and the seizures. Thereafter, upon completion of proceedings they went to PS. PW6 further states that SI Nasib Singh prepared the site plan at the spot and recorded statement of SI Mahavir. PW6 says after the arrival of HC Braham Dev, SI Nasib entered the FIR number on all the seizure memos etc. and thereafter, SI Nasib Singh interrogated the accused persons and recorded disclosure statement of accused Prashant Malik Mark "X". Both the accused persons were arrested thereafter and their personal search was conducted.
11. PW7 is Insp. Gajender, who has testified that on 25.04.07 while he was posted at Operation Cell, North District as Sub Inspector, he FIR No. 204/07 8 State Vs. Prashant Kumar Malik & Oths. had joined a raiding party headed by SI Mahavir Singh. PW7 says the raiding party was constituted on the basis of secret information regarding "satta" being organized by some people at House No. 3567, Ram Bazar, Jain Gali, Kashmere Gate. The raiding party comprised of SI Mahavir, HC Rajesh, HC Mahender, HC Braham Dev and Ct. Ashok in addition to PW7. They had used private vehicle to reach office of DCP (North). From there, SI Mahavir obtained search warrant u/s 5 of Delhi Public Gambling Act. They spent about 15 minutes there . Thereafter, they went to Jain Gali, Ram Bazar, at about 9.30 pm. PW7 says that after reaching there SI Mahavir requested 8 to 10 passerby to join the raiding party after sharing the information with them. None of those passerby joined the raiding party and refused on the ground that they were not having spare time and had given their respective excuses. PW7 says they went thereafter on 2nd floor of house No. 3567 at Jain Gali, Ram Bazar by stairs and when they entered in the room they found both the accused persons sitting on a bed. Both the accused persons were talking on mobile phones. One TV was on inside the room. It was showing live telecast of ongoing cricket match between Australia and South Africa. One Laptop was lying on the bed in on condition. One register was also lying on the bed with a pen. Both the accused persons were talking on the mobile phone and there were 3 mobile phones in the room. Both the accused were apprehended. Again said when we entered the room they had stood up. SI Mahavir asked accused Prashant who disclosed that he was betting on the ongoing cricket match by various methods and he disclosed that satta was being set on the final results of the match, on the result of over and session of overs. It was also disclosed by the accused that they had by that time betted for Rs. 8,55,000/- and entries have been made in register and laptop. Both the register and laptop were seized. The phones and TV were also seized. PW7 further states that seizure memo of register and laptop is Ex. PW3/C. TV was seized vide seizure memo Ex. PW3/A and mobile phones were seized vide memo Ex. PW3/B. The laptop was seized after placing it in a while cloth pullinda and the FIR No. 204/07 9 State Vs. Prashant Kumar Malik & Oths. register was seized after placing it in an envelope. Both were sealed with seal of "MS". The seal was handed over to PW7 after use. Thereafter, SI Mahavir prepared a therir and sent HC Braham Dev to PS Kashmere Gate to get FIR registered at about 11.00 pm. SI Nasib Singh arrived at about at about 11.30 pm, who conducted further investigation. SI Mahavir handed over the prepared documents, case property and accused persons to SI Nasib Singh. SI Nasib Singh prepared site plan at the instance of SI Mahavir. Statement of SI Mahavir was recorded and he was set free at the spot. At about 12.30 am on 26.04.07, HC Braham Dev arrived with copy of FIR and original rukka. He handed it over to SI Nasib Singh, who entered the FIR number in the seizure memos and site plan. Both the accused persons were arrested and their personal search memo was prepared. Disclosure statement of accused persons were recorded. Thereafter, they went to PS Kashmere Gate and statement of PW7 was recorded at PS Kashmere Gate.
12. PW8 is M.N. Vijayan, Nodal Officer from Tata telecom who brought the record pertaining to phone no. 9212248388 which was as per record subscribed by one Arif Chaudhry S/o Sh. Farid Ahmed R/o R-19, 3rd Floor, Main Vikas Marg, Shakkar Pur. Witness proved the report Ex. PW8/A. PW9 is Col. Anil Kumar Sachdeva, Nodal Officer from Reliance Communications Ltd, who has brought record pertaining to phone no. 9311355677 and proved the e-mail Ex. PW9/A.
13. PW10 is SI Mahavir Singh, who has testified that on 25.04.07 while he was posted at Operations cell Maurice Nagar. At about 08.20 pm on that day he received a secret information to the effect that one Prashant Kumar Malik is organizing telephonically "Satta" (stake) regarding the result of world cup cricket match played between Australia and South Africa. It was also informed that he is operating from his house situated at Ram Bazar, Kashmere Gate. PW10 shared the information with his senior officers and he was instructed to take immediate steps to apprehend the accused. PW10 formed a raiding party, participated by SI Gajender, HC Bharamdev, HC Rajesh, HC FIR No. 204/07 10 State Vs. Prashant Kumar Malik & Oths. Mahender and Ct. Ashok Kumar. PW10 briefed them about the information. PW10 further states that he prepared site plan on the basis of secret information which is already marked-A and got lodged DD no. 31 (copy of the same is marked X-10) and departed for DCP office Civil Lines. PW10 met DCP Sh. Devesh Chandra Srivastava and shared the information with him and requested for issuance of search warrants U/s 5 of Delhi Public Gambling Act. After hearing him about the secret information, DCP, Civil Lines issued him search warrants which is already Ex. PW1/A. Thereafter PW10 along with raiding party and the secret informer reached at the spot i.e. Ram Bazar, Gali Jain, Kashmere Gate. At the entrance of the Gali, PW10 requested about 8/10 public persons to join the raiding party after sharing the secret information with them. But all of them refused to join and left without disclosing their names and addresses on personal grounds. PW10 further states that thereafter at the instance of secret informer the raiding party lead by PW10 entered into the informed house situated at Second Floor, house no. 3567, Ram Bazar, Gali Jain, Kashmere Gate. After entering into the house they noticed both the accused persons sitting on palang (bed) and were talking on their mobile phones, one television set was placed in the room on which cricket match between Australia and South Africa was being telecasted. There was one laptop lying on the bed by the side of accused Prashant Kumar Malik. One register was also lying on the bed. Both of the accused persons were interrogated. They disclosed that they were organizing satta (betting) on the results of cricket match being played between Australia and South Africa. Accused persons also disclosed that by that time they had already accepted bets to the tune of Rs. 8,55,000/- from numerous bettors, who were in their contact through phone. It was also disclosed that the bets were accepted about the result of one over or spell of overs, on scoring of six and boundaries. It was also disclosed that the details of the bet which were accepted through telephone were recorded in the laptop as well as in the register. The language used for recording bets were in coded language. One mobile phone was FIR No. 204/07 11 State Vs. Prashant Kumar Malik & Oths. recovered from the hands of accused Prashant Kumar Malik, which he was using at that time for accepting bets. The mobile phone was of Nokia make. PW10 further states that three mobile phones make Nokia were also recovered from the pocket of accused Prashant Kumar Malik during his casual search. One mobile phone was recovered from the possession of accused Vicky Grover. All the five mobile phones already Ex. P1 to P5 were seized vide seizure memo Ex. PW3/B. PW10 also seized laptop and register vide seizure memo Ex. PW3/C, the laptop and the register were separately seized in the cloth and in envelop collectively and the TV was seized memo Ex. PW3/A. The TV is already Ex. P6 and the register is Ex. P7 whereas the laptop is Ex. P8. Thereafter PW10 prepared the rukka Ex. PW10/A. PW10 informed his senior officers telephonically about the seizure and apprehension of accused persons. The rukka was sent through HC Braham Dev to PS Kashmere Gate for the purpose of registration of case. After sometime, SI Naseeb Singh, reached at the spot to whom PW10 explained the circumstance of the recovery. PW10 handed over to him all the seizure memo prepared by PW10 by that time along with the case property. PW10 also handed over to him the accused persons who were apprehended by PW10. PW10 further states that SI Naseeb Singh prepared site plan Ex. PW2/A in the presence of PW10. HC Bhramdev returned with copy of FIR by that time and PW10 had already handed over the seizure memos and the property to SI Naseeb Singh, who had conducted further investigation. Copy of DD no. 32, which was recorded at Operations cell regarding the information about the apprehension and seizure is marked-XY.
14. Upon completion of prosecution evidence, all the incriminating evidence were put to the accused separately in statement of accused recorded u/s 281/313 Cr. PC, in which while denying the evidence accused Vickey Grover has taken the plea that he along with his co-accused was lifted from the Dhaba of Tarun Malik where he was employed as waiter and accused Prashant Kumar Malik has taken the plea of false implication because of his brother namely, Tarun Malik FIR No. 204/07 12 State Vs. Prashant Kumar Malik & Oths. has filed a criminal complaint against SI Ajeet Singh and HC Phool Chand of PP, Tis Hazari Courts and the police officials came to the Dhaba of his brother on 10.04.07 and had pressurized his brother Tarun Malik to withdraw the said complaint and upon the refusal of his brother, SI Naseeb Singh had threatened to teach a lesson and after about 15 days SI Mahaveer Singh and SI Naseeb Singh along with other police staff came to the Dhaba of his brother at about 07.00 pm on 25.04.07 and they have lifted him and his co-accused from the Dhaba.
15. Three witnesses were examined by the accused persons in defence. DW1 is Akhilesh Kumar, who has testified that he is employed in one Hotel namely "Malik ka Dhaba" and has been working in the above said Dhaba for last eight years. DW1 says that three persons came in one car Santro and they inquired about Tarun Malik, but his brother namely, Prashant Malik was present. Those three persons called Prashant Malik and those three parsons started taking Prashant Malik along. DW1 further states that when Prashant Malik objected to it, they said that they will come back upon which DW1 also inquired as to where are they taking him. They told that they are taking Prashant Malik to ACP of Maurice Nagar. Those persons had then taken away Prashant Malik and after some time, Tarun Malik also reached at the Dhaba and DW1 informed him that three persons had taken Prashant Malik along. Upon giving this information, Tarun Malik went to office of ACP, Maurice Nagar and DW1 says that he do not know what happened thereafter. DW1 further states that it was incidence of 25th of April which occurred about 3-4 years back. Those persons had taken away Prashant Malik at about 08.00 / 08.15 pm in the evening. DW1 was duly cross-examined by Ld. APP for State. DW2 is Tarun Malik, who is the brother of the accused Prashant Malik and he has testified that he used to run Dhaba at Gate no. 4 of Tis Hazari, Delhi and on 25 April his brother Prashant Malik was taken away by police officials to Maurice Nagar and he was not present at the shop / Dhaba at that time and he came to know about this subsequently when he reached at his Dhaba from his labour / worker Akhilesh and Chander. DW2 says that FIR No. 204/07 13 State Vs. Prashant Kumar Malik & Oths. upon getting the information regarding taking away of his brother, he went to office of ACP, Maurice Nagar where he met with one police official, Naseeb Singh and he inquired from him as to why his brother was taken away. DW2 says that police official was in the state of intoxication and told him to go and make any complaint and also told that since you had made some complaints against the police officials, now keep on making more complaints. DW2 says that said Naseeb Singh demanded illegal gratification from him. When DW2 inquired as to for what purpose he is suppose to make the payment of money, said Nasib Singh did not tell him much on this. Thereafter DW2 was not allowed to meet his brother and told him that they will make him free after some time. The brother of DW2 was made free on the next morning and nothing else had happened in his presence. He was also duly cross-examined by Ld. APP for State.
16. DW3 is Praveen Kumar, who has testified that he is running the business of selling of Masala (spices & dry fruits) as he run a whole sale shop of General Store and used to supply spices etc. to the Dhaba of Prashant Malik and Tarun Malik. On 25.04.07, he had come to the Dhaba of above said persons for taking the payment. Then he saw 4/5 persons were standing with Prashant Malik and he saw that those persons were taking him toward their car. They were speaking little rudely with Prashant Malik, thereafter, DW3 could not collect his payment and left the spot and it was the incidence of about 08.00 pm. DW3 further states the on the next day when he came, he came to know that a case has been registered against Prashant Malik and the Dhaba was closed. DW3 was also duly cross-examined by Ld. APP for State.
17. I have heard Ld. APP for State and Ld. Counsel for the accused persons. I have also gone through the written arguments filed on behalf of accused persons. Having heard the submissions at bar and having gone through the record carefully. Let us appreciate the evidence on the record as well as the submissions made at bar of different aspect of the present case. At the very outset, it is necessary to note that the prosecution case has been very specific that on 25.07.07 secret FIR No. 204/07 14 State Vs. Prashant Kumar Malik & Oths. informer informed to SI Mahaveer Singh at Operations Cell (North) regarding carrying on "Satta" at Second Floor of House No. 3567, Ram Bazar, Gali Jain, Kashmere gate. On the basis of said information, SI Mahaveer Singh went to the office of DCP and obtained search warrants U/s 5 of DPG Act. Said search warrants is Ex. PW1/A. Perusal of said search warrants would show that DCP North Distt. had applied his mind on the information and considered it to be appropriate that search warrants be issued regarding the above said premises. Said search warrants were given in terms of section 5 DPG Act, which also empowers the police officers to take into custody any person indulged in gambling or gaming and also to take into possession all instruments of gaming and money or stakes. As such the arguments of Ld. Counsel for the accused that accused was falsely implicated in the gambling case appears to be not maintainable when the concerned police official had carried out the proceedings strictly in accordance with the requirements of Delhi Public Gambling Act, 1955.
18. If we appreciate the search and seizure aspect of the case, it has come in the evidence of PW3 HC Braham Dev, PW6 HC Rajesh, PW7 Insp. Gajender and PW2 SI Naseeb Singh as well as PW10 SI Mahaveer Singh consistently that upon receipt of secret information, said information was given to DCP by the SI Mahaveer Singh and thereafter, search warrants were taken and thereafter they went H.No. 3536, 2nd Floor, Ram Bazar, Gali Jain, Mori Gate, Kashmere Gate and all of the above said witnesses have consistently testified that when they reached inside of said premises they said both the accused persons were sitting in the room and were talking on their mobile phones and taking the bets regarding the result of cricket match. It has also come in the evidence of PW3, PW6, PW7 and PW10 that they also saw accused were using laptop and TV in which cricket match was going on. All these instruments were being used for gaming and were produced in the evidence Mobile phones are Ex. P1 to P5, TV is Ex. P6, Register in which entries regarding bets were made is Ex. P7, laptop is Ex. P8 which also contain accessories like wireless data card, wires and FIR No. 204/07 15 State Vs. Prashant Kumar Malik & Oths. card reader etc. These articles were seized in the search procedure. It is argued by Ld. Counsel for the accused that the prosecution has failed to produced any witness from the public, although the premises where the raid was conducted was situated in a densely populated area. Having considered the arguments of Ld. Counsel for the accused, no doubt police had not joined any public witness, but if we go through the evidence of PW3, PW6, PW7 and PW10 all of them have consistently stated that before entering into the premises, SI Mahavir Singh tried to join some public persons in the raiding party, but none of them agreed. This aspect was not challenged at all in the cross-examination of above said witnesses. Question of non-joining of independent witness is to be appreciated in the lights of facts of particular case. The requirement of joining the independent witness is to only the authenticate the search and the recovery. It was held in Modan v. State of Rajasthan, AIR 1978 SC 1511: 1978 Cri LJ 1531 that if the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that the seizure witnesses do not support the prosecution case. In Tahir v. State of Delhi, AIR 1996 SC 3079, it has been laid down that no infirmity attaches to the testimony of the police officials, merely because they belong to police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials if found reliable unless corroborated by some independent evidence. The rule of prudence, however, only requires a more careful scrutiny of their evidence since they can be said to be interested in the result of the case projected by them. Where the evidence of police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. Similarly in Anil v. State of Maharashtra, AIR 1996 SC 2943: 1996 Cri LJ 1698, it has been held that there is no rule of law that the evidence of police officials has to be FIR No. 204/07 16 State Vs. Prashant Kumar Malik & Oths.
discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give the evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. In "Kashmira Singh v. State of Punjab" 1999 CRI. L. J. 2876 where police party made recovery of pistol while on patrolling duty, it does not required to take along independent witness, thus absence of independent witness to support recovery does not render recovery doubtful. Pistol loaded with live cartridges workability of pistol can be presumed specifically when two live cartridges also recovered from accused.
1. In this connection the caveat of the Supreme Court in Som Prakash v. State of Delhi, AIR 1974 SC 989 : 1974 Cri LJ 784 is also very relevant. It has been observed that the demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involved in the fruits of his investigation efforts, suggest the legitimate search for corroboration from an independent or unfaltering source-human or circumstantial to make judicial certitude doubly sure. Not that this approach casts any per jorative reflection on the Police Officer's integrity, but that the hazard of holding a man guilty on interested, even if honest, evidence may impair confidence in the system of justice. It is held in Mutum Seityaban Singh v. State of Manipur 2008 CRI. L. J. 2263 that For failure of prosecution to examine independent witnesses, prosecution case could not be thrown out on that ground alone. Court while appreciating evidence must not attach undue importance to minor discrepancies. Similarly in State of Punjab v. Ram Parkash 1978 CRI. L. J. 601 & "Prabhudaya Harijan v. State of Orissa" 2001 CRI. L. J. 2987 it was observed that there being no provision of law requiring the attendance of any independent witness at the time of the search of the person of a suspect, the recovery proceedings cannot, therefore be held FIR No. 204/07 17 State Vs. Prashant Kumar Malik & Oths. to be suspicious or unreliable simply because no independent witness was opted to join the raiding party. At best, it would be a suspicious circumstance which would require the Court to scrutinize the prosecution evidence with more caution and care but in no case by itself it can warrant the discredit of the prosecution case.
19. Thus, it would be very much evident from the above discussion that no doubt joining of independent witness is necessary for authentication of recovery but non joining of independent witness may not be fatal for prosecution in all the cases. Where the recovery of knife is well proved by the cogent evidence of police witnesses such evidence cannot be brushed aside only on the ground that witnesses examined are official witnesses. Court is required to be very circumspect to assess the evidence of official witnesses with critical approach but it is not in every case that evidence are to be thrown away only on the ground that witnesses are the official witnesses. In this case witnesses have cogently and consistently testified about all the material aspects like going in the 2nd Floor where accused were found taking bets in the on going cricket match and were making the entries in this regard in the register as well as in the laptop. This court in order to appreciate the evidence had also gone through the register which shows that entries were made in the register regarding the bets on the cricket match whereas laptop was found to be not operating. Therefore, I do not find that non-joining of independent witness is fatal to the prosecution case.
20. Matter can be appreciated from another angle as it is in the prosecution case that a secret information was received that gambling is being carried out at premises no. 3567, 2nd Floor, Ram Bazar, Jain Gali, Mori Gate. On the basis of said information, search warrants were obtained and thereafter raid was conducted in which accused were apprehended while gaming of taking bets on the cricket match and various instruments were also used, the details of which were enumerated above and were taken into possession which are Ex. P1 to P8. In the light of such evidence provisions of sub-Section 2 of Section 4 are relevant. Sub-Section (2) of Section 4 :
FIR No. 204/07 18 State Vs. Prashant Kumar Malik & Oths.
"(2) Whoever is found in any common gaming house during any gaming or playing therein shall be presumed until the contrary is proved, to have been there for the purpose of gaming."
Common gaming house has been defined in Section 2(iii), which is reproduced as under :
"(iii) "Common gaming-house" means any house or room or tent or enclosure or vehicle or vessel or any place whatsoever in which any instruments of gaming are kept or used for gaming purposes :-
(a) with a view to the profit or gain of any person owning, occupying or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel, place or instruments or otherwise howsoever;
(b) with or without a view to such profit or gain if the gaming for the purpose of which such instruments are so kept or used is gaming on any figures or numbers or dates to be subsequently ascertained or disclosed or on the occurrence or non-occurrence or the quantity or extent of any natural event."
21. The reading of Section 2(iii) makes it clear that the provision of 'common gaming house' would be attracted only if any instruments of gaming are kept or used for gaming purpose in any house, room, tent, enclosure, space, vehicle, vessel or place. In this case, different articles Ex. P1 to P8 were recovered from the premises no. 3567. It is also necessary to note that PW2 SI Nasib Singh has stated that in the course of investigation, he asked to furnish the document of title of said premises. Accused furnished the documents which was a copy of relinquishment deed. Perusal of that document Marked-Y would show that documents connects the accused because premises in the name of Kiran Malik, who happens to be the mother of accused Prashant Kumar Malik. As such, it can be concluded that the said premises was being used as common gaming house within the meaning of Section 2(iii) of the DPG Act and therefore, presumption can also be taken that it was being used for the purpose of gambling (Satta for cricket match) within the meaning of Section 4 (2) of the Act.
22. It is also argued on behalf of the accused persons that FIR No. 204/07 19 State Vs. Prashant Kumar Malik & Oths. prosecution failed to proved the recovery of laptop, TV etc. allegedly recovered form the house of accused belong to accused persons. In this regard, it is necessary to refer the evidence of PW5 R.K. Singh, PW8 M.N. Vijayan and PW9 Col. Anil Kumar Sachdeva, who were Nodal Officers from Bharti Airtel, Tata Telecom and Reliance Communications respectively. These witnesses have given the details about the subscriber of the mobile phone recovered from the accused persons and by careful scrutiny of document Ex. PW5/A it was found that mobile phone no. 9971267775 was in the name of accused Prashant Malik in which the address mentioned is the same where the gambling was going on and raid was conducted. Beside this, document Ex. Marked-X9 which was brought by PW9 was the application for subscription of mobile phone no. 9311355677 which was in the name of Gagan Preet Singh, but address mentioned was 3584, Ram Bazar, Mori Gate, which is nearby to the place where the raid was conducted. The reply of e-mail Ex. PW9/A also corroborate this fact. So far as regarding other articles like laptop, TV etc. it was not possible to procure the document of ownership of such articles, fact remains that accused was found in possession of these documents and they could not give any explanation in this regard and evidence of PW3, PW6, PW7 and PW10 have been consistent regarding recovery of these articles and nothing could come in the cross-examination of these witnesses barring few minor variations, which render their testimony to be unbelievable. In this context, it is also necessary to examine the defence taken by the accused. From the suggestions given to the different witnesses and the statement of the accused recorded in terms of Section 281/313 Cr.PC, the plea of the accused were they are innocent and they have been falsely implicated in this case. Accused Prashant Malik has taken the plea that he was lifted from the Dhaba of his brother Tarun Malik situated at Gate no. 4 of Tis Hazar Courts complex. It is also stated that police officials has taken telephones of accused Prashant Malik as well as to Tarun Malik. Accused has also taken the plea that nothing was recovered from them and infact Tarun FIR No. 204/07 20 State Vs. Prashant Kumar Malik & Oths. Malik had filed criminal complaint against SI Ajeet Singh and HC Phool Chand in PP, Tis Hazari and police officials namely, SI Naseeb Singh, SI Mahaveer Singh and SI Ajeet Singh came to the Dhaba of the brother of the accused on 10.04.07 and pressurized Tarun Malik to withdraw the said complaint and when he refused, SI Naseeb Singh has threatened for teaching the lesson. Fifteen days thereafter, SI Mahaveer Singh and SI Nasib Singh along with other police officials came to the dhaba of the brother of the accused on 25.04.07 and they lifted the accused Prashant Malik and Vickey Grover (who was the employee of Dhaba) and thereafter, implicated in this case. Now, let us appreciate this defence and the evidence led on behalf of accused. DW1 is Akhilesh Kumar, who has stated that he was employed in "Malik ka Dhaba". DW1 did not specified the date and simply states that three persons came in Santro car and inquired about the Tarun Malik, but at that time his brother Prashant Malik and those persons took Prashant Malik along. First of all this witness has not stated anything about the co- accused Vickey Grover. Moreover, in cross-examination, DW1 admitted that he had not made any complaint to any higher police authority regarding taking away of accused Prashant Malik by those three persons. No date is mentioned in the evidence as to when Prashant Malik was taken away nor it is stated in the evidence as to who those three persons were? DW1 was the employee of the brother of the accused. Thus, evidence of DW1 does reconcile with the defence taken by the accused persons. Similarly evidence of DW2 Tarun Malik who is real brother of accused Prashant Malik is also of not any help of accused persons. DW2 says on 25.04.07 was taken away by the police officials when he was not present at his Dhaba and subsequently when he reached, his employee informed him about this, upon which he went to the office of ACP, Maurice Nagar where DW2 stated to have met with Nasib Singh,who was according to the witness in state of intoxication. DW2 further says that said Nasib Singh said to do whatever you want to do. DW2 also says that Nasib Singh demanded illegal gratification also. Now, if we evaluate the examination in chief FIR No. 204/07 21 State Vs. Prashant Kumar Malik & Oths. of DW2 itself, he has no where stated about any complaint given by him against SI Ajeet Singh in PP, Tis Hazari as stated by the accused Prashant Malik in his statement recorded U/s 281/313 Cr.PC. Moreover, DW2 has also not stated anything about co-accused Vickey Grover. Beside this, in the cross-examination, DW2 admitted he has not made any complaint regarding lifting of his brother by the police officials, which is most unnatural. DW2 has also stated that he did not make any complaint to any higher police officers even when his brother was involved in the present case of DPG Act. Similarly, evidence of PW3 is also not convincing as DW3 has also not testified a single word about the co-accused Vickey Grover. Now, all the three witnesses DW1 to 3 has not uttered a single word regarding taking of mobile phones either of Prashant Malik or of Tarun Malik nor they have stated anything about laptop, register and other articles recovered from the above said premises. Thus, from evaluation of the evidence from the accused, it is well established on the record that defence taken by the accused persons was not only false, but contrary to the evidence of DW1 to DW3. As such, accused failed to rebut the presumption within the meaning of Section 4 (2) of above said act. Thus, in view of the consistent evidence of PW2, PW3, PW6, PW7 and 10 regarding involvement of the accused in the gambling of "Satta" of cricket match. I find the necessary ingredients of Section 3,4 of DPG Act are well proved and therefore, accused are liable to be convicted for the offence charged with. Accordingly, I hold the accused persons guilty for the offence charged with. Let they be heard on the point of sentence on 03.06.10.
Announced in open
court on 01.06.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
FIR No. 204/07 22 State Vs. Prashant Kumar Malik & Oths.
FIR No. 204/07
PS : Kashmere Gate
03.06.10
ORDER ON POINT OF SENTENCE
Present : ld. APP for State.
Convicts with counsels Sh. I.A. Khan
I have heard the arguments on the point of sentence. It is submitted by Ld. APP for State that accused persons be sentenced severely.
On the other hand, Ld. counsel for the Convicts submits that convicts are young men and are sole bread earner in their families and having large family consisting of many persons to look after, therefore a sympathetic approach may be taken.
Having heard the submissions at bar and having gone through the record carefully and considering the peculiars facts and circumstances of the case, accused persons are granted benefit of probation taking the above said facts to be the special reasons, U/s 4 of Probation of Offender Act, for a period of 1 year subject to furnishing P/Bs for sum of Rs. 10,000/- each with one surety of equal amount. During the probation period accused are suppose to maintain law and order and also to comply with all the conditions and to appear before the probation officer as and when directed. P/Bs furnished and accepted.
It is being specifically observed that U/s 12 of Probation of Offender Act, no stigma or disqualification will be effected to the career of accused persons.
Accused are also burdened with a cost of Rs. 3,000/- each U/s 5 FIR No. 204/07 23 State Vs. Prashant Kumar Malik & Oths. of Probation of Offender Act. Cost amount paid.
The case property i.e. articles recovered from the accused persons like laptop, data card, mobile phones etc. will be forfeited to the State.
Copy of judgment and order on sentence be given to convicts free of cost. File be consigned to record room.
Announced in open
court on 03.06.10 (Shailender Malik)
Metropolitan Magistrate (North)
Tis Hazari Courts, Delhi
FIR No. 204/07 24 State Vs. Prashant Kumar Malik & Oths.