Delhi District Court
State vs Amar Mehta Etc 3 on 20 August, 2023
IN THE COURT OF MS. SAMIKSHA GUPTA
Addl. Chief Metropolitan Magistrate
South West District; Dwarka Courts: New Delhi
Date of Institution : 09.12.2019
Date of Reserving Judgment : 16.08.2023
Date of Judgment : 21.08.2023
In the matter of:
State Vs. Amar Mehta & Ors.
FIR No. 140/2019
PS : Sector-23 Dwarka
U/s: 12 The Delhi Public Gambling Act, 1955
1. Regn. No. of Case : 19255/2019
2. CNR No. : DLSW02-061917-2019
3. Name of complainant : SI Vijay Pal
No. D-4801,
PS Sector 23 Dwarka
4. Name of accused persons : 1. Amar Mehta
S/o Sh. Ram Kailash Mehta
R/o C-540, Kutub Vihar,
Goyla Dairy, New Delhi.
2. Deepak Shokeen
S/o Sh. Vijender Shokeen
R/o Pole No. 104, VPO
Chhawla, New Delhi.
3. Vikas Dubey
S/o Late Sh. P. R. Pandey
R/o B-172, Kutub Vihar,
State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka
Page No.1 of 15
Goyla Dairy, New Delhi
4. Ankit Kumar
S/o Sh. Ashok Kumar
R/o A-259, Kutub Vihar,
Goyla Dairy, New Delhi.
3. Offence charged under : Section 12 The Delhi Public
Gambling Act, 1955
4. Plea of accused : Not guilty.
5. Final Order : Acquitted.
JUDGMENT
1. It is the case of prosecution that on 21.04.2019 at about 04:30 p.m., inside a park, DDA Flats, Sector 23-B, Dwarka, all accused were found betting on IPL matches in a public place by using mobile phones. Thus, prosecution has set up a case u/s 12 The Delhi Public Gambling Act, 1955 against accused Amar Mehta, Deepak Shokeen, Vikas Dubey and Ankit Kumar.
2. On the basis of investigation carried out by police, charge sheet was filed and copy was supplied to all accused persons.
3. On the basis of charge sheet, notice for committing offence punishable under Section u/s 12 The Delhi Public Gambling Act, State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.2 of 15 1955 was served upon all accused to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined three witnesses, who are as under:
Sr.No Name Nature of Evidence
1. PW-1/Inspector Vijay Pal Complainant.
2. PW-2/HC Vinod Kumar MHC (M)
3. PW-3/Inspector Surender IO.
Singh
5. Prosecution has relied upon the following documents:
S. No. Exhibits Documents
1. Ex.PW-1/A Seizure memo of mobile phone and cash
recovered from co-accused Deepak
2. Ex.PW-1/B Seizure memo of mobile phone and
notebook recovered from Amar Mehta
3. Ex.PW-1/C Seizure memo of mobile phone and
notebook recovered from co-accused Vikas Dubey
4. Ex.PW-1/D Seizure of recovery from accused Ankit
5. Ex.P-1 (colly) One register and a mobile phone of Nokia E5 black colour with SIM card of idea recovered from co-accused Vikas Dubey
6. Ex.P-2 (colly) One register with one Nokia E-5 red mobile having AirTel SIM recovered from Amar Mehta.
FIR No.140/2019; PS Sector 23 Dwarka Page No.3 of 15
7. Ex.P-3 (colly) One notebook with butterflow pen with two mobile phones i.e. Nokia E-5 mobile and another mobile Vivo Blue colour having Airtel SIM recovered from accused Ankit.
8. Ex.P-4 (colly) One red colour carry bag and one white colour mobile Nokia E5 having SIM Airtel recovered from accused Deepak
9. Ex.PW-1/E Tehrir
10. Ex.PW-1/F Site plan
11. Ex.PW-2/A Entry No. 2069 vide which case property (OSR) was deposited in maalkhana.
12. Ex.PW-3/A Arrest memo of Deepak.
13. Ex.PW-3/B Arrest memo of accused Amar Mehta
14. Ex.PW-3/C Arrest memo of accused Vikash Dubey
15. Ex.PW-3/D Arrest memo of accused Ankit Kumar.
16. Ex. PW-3/E Disclosure statement of Deepak
17. Ex.PW-3/F Disclosure statement of Amar Mehta
18. Ex.PW-3/G Disclosure statement of Vikash Dubey
19. Ex.PW-3/H Arrest memo of accused Ankit Kumar.
20. Ex.PW-3/I Indemnity bond in respect of Rs.1,52,000 (cash) released on superdari.
21. Ex.A-1 Photocopy of currency notes released on superdari.
22. Ex.A-2 Copy of FIR 140/2019 without contents
23. Ex.A-3 DD No. 22-A dated 21.04.2019
24. Ex.A-4 DD No. 32-B dated 21.04.2019 State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.4 of 15
6. Thereafter, PE was closed and statements of accused were recorded under Section 313 Cr.PC, wherein they stated that they were falsely implicated and were apprehended from office of accused Deepak. They did not lead any evidence in defence.
7. Arguments heard. Record perused.
8. The case of prosecution as set up by its witnesses is discussed hereunder:-
(i) PW-1 Inspector Vijay Pal has deposed that on 21.04.2019, he was present in the area for patrolling alongwith ASI Kartar and Ct. Surender vide DD No. 32-B. At around 04:30 p.m., when they reached at park in society of DDA flats, Pocket A, four boys were sitting in a corner and were receiving calls on their mobile phones continuously and were writing down something in their notebooks. On seeing police party, they tried to escape but were later apprehended. On sustained interrogation, they disclosed that they were bidding through their mobile phones as IPL matches were going on.
They disclosed that they gave bid to various people regarding possible runs made in an over of IPL match. If those many runs were made, they would give the bid amount to the winner and if those many runs were not made, they will keep the bid amount. 3-4 public witnesses were asked to join investigation but they went away. On searching accused persons, mobile phones alongwith pen and notebook containing detail of satta and a State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.5 of 15 carry bag containing amount of Rs.1,52,000/- was recovered from them. Mobile phone and carry bag was recovered from accused Deepak. Case property was seized. During evidence, one register and mobile phone Nokia E-5 black colour alongwith Idea SIM card was exhibited and the said property was recovered from accused Vikas. Another pullanda containing one register and mobile phone Nokia E-5 red colour alongwith Airtel SIM card was exhibited and the said property was recovered from accused Amar Mehta. Another pullanda containing one notebook and pen and two mobile phones Nokia E-5 black colour alongwith Idea SIM card and mobile Vivo blue colour with Airtel SIM were exhibited and the said property was recovered from accused Ankit. Further, VIVO phone had a mobile application named 'Cricket Mazza', which was used for bidding. Another pullanda containing one red colour carry bag and one white colour Nokia E5 mobile having Airtel SIM card was also exhibited, which was recovered from accused Deepak.
Seal after use was handed over to ASI Kartar Singh. Tehrir was prepared and Ct. Surender got the FIR registered. After some time, when SI Surender reached the spot, accused persons as well as seized case property was handed over to him. Site plan was prepared by IO and he mentioned details of FIR upon pullandas containing seized case property and their seizure memos. Accused persons were interrogated, arrested and released on police bail. Thereafter, statement of this witness was recorded by IO SI Surender in the PS. Case property was State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.6 of 15 deposited in maalkhana.
During cross examination, he could not recall whether details of his vehicle which was used during patrolling was mentioned on DD No.32-B. He could not depose whether any RWA was functioning with respect to Pocket 8, DDA Flats Society. He could not recall if there were offices of property dealers, advocates and other shops near the entry/ exit gate of society. He admitted that there were several small parks located inside the society. He could not depose if CCTV cameras were installed in the society. Notice to join investigation was not served on the guard of the park. He denied the suggestion that due to property dispute between one of the acquaintances of the said witness and the accused persons, accused have been falsely implicated. He admitted that details of mobile phone from which accused persons were receiving calls on their mobile was not mentioned in his complaint. He denied the suggestion that no IPL match was being played on the day of incident. He denied the suggestion that the cash alongwith mobile phones was taken by him from the office of accused persons located near the place of incident.
(ii) PW-2 HC Vinod proved entry No. 2069 dated 21.04.2019 as per which case property was deposited in maalkhana.
During cross-examination, he admitted that the time of depositing the case property is not mentioned in the entry. State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.7 of 15
(iii) PW-3 Inspector Surender deposed that further investigation in the present FIR was marked to him on 21.04.2019. He reached the spot alongwith Ct. Surender, where accused persons were present alongwith SI Vijay Pal and ASI Kartar Singh. SI Vijay Pal produced the sealed case property and particulars of FIR was mentioned on the seizure memo of case property by this witness. Site plan was prepared. Accused was formally arrested. Case property was deposited in maalkhana. Further investigation was conducted and charge sheet was filed.
During cross examination, he deposed that he reached the spot around 08:30 p.m. and remained there for about 1½ -2 hours. Public persons were not present at the spot. He admitted that residential flats were there at the spot. He admitted that guard remained present on the main gate but did not know if he maintained a visitors' register. He could not depose if society had a RWA. He could not depose if CCTV cameras were installed in the society and denied the suggestion that CCTV cameras were installed in the park. He did not serve notice to any public person and stated that nobody was present there. He denied the suggestion that accused Deepak had a flat in the society in which he was running an office for property dealing. He denied the suggestion that CCTV footage was not taken by him as accused persons were apprehended from their office by PW SI Vijay Pal. He admitted that specimen handwriting of State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.8 of 15 accused persons was not obtained and register was not sent to FSL for comparison of handwriting. He denied the suggestion that register was not recovered from the possession of accused. He further admitted that no investigation was made on the point of IPL matches, which were played on the day of incident. He denied the suggestion that the cash recovered was kept by the accused persons in their office for renovation work. He admitted that statements of persons making calls on mobile phone of accused persons were not recorded. Call record of mobile phones of accused persons was not obtained. He denied the suggestion that accused persons have been falsely implicated.
9. Section 12 of the Delhi Public Gambling Act, 1955 reads as under:
"12. Gaming and setting birds and animals to fight in public streets. - A police officer may apprehend without warrant any person found gaming in any public street, place or thoroughfare situated within the Union Territory of Delhi, or any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the said State, or any person there present aiding and abetting such public fighting of birds and animals, such person when apprehended shall be brought without delay before a Magistrate and shall be liable to imprisonment for a term which may extend to three months and shall also be liable to a fine which may extend to one thousand rupees, and such police officer may seize all instruments of State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.9 of 15 gaming found in such public street, place or thoroughfare or on the person of those whom he shall so arrest, and the Magistrate may on conviction of the offender order such instruments to be forthwith destroyed".
10. Needless to state, the well established principle of criminal jurisprudence is that prosecution has to prove its case beyond all reasonable doubt. The prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the loopholes in the defence of accused.
11. In the present case, the prosecution has not been able to prove its case against the accused due to the following reasons:
(i) No public witness was joined by IO during investigation of the present case. Similarly, no public witness has been joined at the time of recovery of the case property, despite their availability.
During his cross-examination, PW Insp Vijay Pal has admitted that the place of incident was a park inside a society and that the said society was a populated society, containing many such parks inside it. He has further admitted that during investigation, public persons were passing by the spot of incident. In such a scenario, it was for the witness to clarify as to what precluded him in joining such public persons in investigation.
FIR No.140/2019; PS Sector 23 Dwarka Page No.10 of 15 In fact, IO PW Insp Surender has contradicted PW Insp Vijay Pal and has stated that public witnesses were not joined in the investigation as no one was present there at that time. Such version of IO seems quite improbable considering that the incident occurred in late afternoon around 4:30 pm and especially considering that the place of incident was a park inside a society.
IO as well as complainant Insp Vijaypal has not clarified if he had recorded the name of persons who refused to join the investigation and if he initiated any action against them.
It is settled law that the testimony of police witnesses can be relied upon if it inspires confidence of the court. However, in this case, no plausible explanation has been put forth by the prosecution for failure to join public witnesses during the investigation. In the present case, only police officials have been cited as prosecution witnesses whose testimonies are not reliable without corroboration by public witnesses in the facts of the present case.
(ii) During the search of accused, PW Insp Vijaypal has not followed the procedure prescribed by law under Section 100 (4) CrPC.
Reference is made to the judgment of Hon'ble Punjab and Haryana High Court in Roop Chand Vs. State of Haryana 1999 (1) CLR 69 wherein it was observed that, "It is well settled principle of law that the Investigating Agency should join independent witnesses at the time of recovery of contraband State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.11 of 15 articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case."
In the present case also admittedly the independent witnesses were available at the time of search but they refused to be witnesses to such search of accused. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons who they had contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. The failure to explain the same suggests that such explanation is an after thought and is not worthy of credence.
Admittedly, the place of alleged incident was a park inside a residential complex and the area was a congested one. This Court is of the considered opinion that in order to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, some independent person should have been associated by the IO during investigation. However, no sincere efforts were made by the IO to persuade any public witness to join the investigation and no written notice was served upon any of the public persons. Admittedly, no action was also taken against those persons who refused to join the investigation for reasons best known to the IO.
(iii) Record further shows that no seal handing over memo was prepared by PW1 and seal after use was handed over to ASI Kartar Singh. Perusal of testimonies of prosecution State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.12 of 15 witnesses reveals that pursuant to seizure of case property from the accused, PW1 sealed the case property and the same was deposited in malkhana.
Admittedly, the seal after use was not handed over to any independent person. It was handed over to ASI Kartar Singh. This Court is of the considered opinion that PW1 himself being a material recovery witness would always be interested in the success of the case of prosecution and thus possibility that the case property was tampered with cannot be ruled out. Reference is made to the judgment of Hon'ble Punjab and Haryana High Court in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, wherein it was held that, "The very purpose of giving the seal to an independent person is to avoid tampering of the case property." Thus, in the present case, the possibility of tampering of case property cannot be ruled out.
It is also pertinent to state that the prosecution has failed to prove as to whom the seal of 'SS' belonged. The prosecution witnesses have not clarified on this material aspect.
(iv) It is alleged by the prosecution that the accused persons were found gambling through their phone and several mobile phones were recovered. However, IO has not obtained CDR or ownership documents of the mobile phones which was allegedly recovered from the accused persons. It is further pertinent to note that if the accused persons were found gambling at a public place, then there must have been persons who were engaged in betting money with the accused. However, the State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.13 of 15 prosecution has not bothered to even mention the numbers to which calls were made by accused persons in relation to betting. Infact, no call details of the persons who were betting has been placed on record by IO. The IO/ complainant has not even bothered to mention the particulars of the IPL match for which betting was going on. It is the case of prosecution that accused persons were engaged in gambling through their mobile phones. In such a scenario, prosecution was bound to explain as to how cash was recovered from them, especially when only accused persons were present in the park at the time of incident as per IO's version. This material loophole lends credence to the accused's version that case property was in fact planted on them.
Moreover, the prosecution has failed to bring any evidence on record as to the modus operandi adopted by the accused persons for alleged betting. It has not been proved by the prosecution as to how the recovered phones were used for gambling. From the mere recovery of phone, nothing can be deduced as to the factum of alleged gambling. It is not proved on record as to how the winner would be declared, who would declare the winner and when would the winner be declared. It is also not proved on record whether the winner would be declared by the accused, or by some third person or through any computer software by random numbers. Thus, this Court is of the considered opinion that mere recovery of mobile phones, cash etc is not sufficient for proving the charge of gambling against the accused.
FIR No.140/2019; PS Sector 23 Dwarka Page No.14 of 15
12. In view of the material unexplained lacunae in the case of prosecution, it is clear that prosecution has not been able to establish the guilt of accused persons beyond reasonable doubt. Accordingly, accused Amar Mehta, Deepak Shokeen, Vikas Dubey and Ankit Kumar are acquitted of offence under Section 12, The Delhi Public Gambling Act, 1955.
Digitally signed by Samiksha GuptaPronounced in the open Court Samiksha Date:
on 21st of August, 2023 Gupta 2023.08.21
15:57:16
+0530
SAMIKSHA GUPTA
Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi 21.08.2023 State Vs. Amar Mehta & Ors.
FIR No.140/2019; PS Sector 23 Dwarka Page No.15 of 15