Delhi District Court
Fir No. 743/2001 State vs . Anil Kumar Aggarwal And Ors. Ps: ... on 30 April, 2019
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh
IN THE COURT OF MS. EKTA GAUBA:
ADDL. CHIEF METROPOLITAN MAGISTRATE
(NORTH WEST), ROHINI COURTS, DELHI
State Vs. Anil Kumar Aggarwal & Ors.
FIR No : 743/2001
P.S. : Shalimar Bagh
U/s. : 3/4, Delhi Public Gambling
Act.
JUDGMENT
1 Case Unique I.D. No. : 536930/2016
2 Date of complaint : 03.11.2001
3 Name, parentage & address of the : Accused no.1 Anil Kumar
accused persons Aggarwal @ Bali S/o Sh. Karori
Mal, R/o H.No.AA198,
Shalimar Bagh, New Delhi.
Accused no.2 Surender Singh
@ Bittoo S/o Late Ramswaroop
R/o C319, Gal No.9, Majlish
Park, Aadarsh Nagar, Delhi.
Accused no.3 Surender Kumar
@ S.K. S/o Sh. Sant Lal, R/o
1392,Rani Bagh, Delhi (Matter
qua accused no.3 Surender
Kumar @ S.K. stands already
disposed off through plea
bargaining vide order dated
25.01.2012)
4 Offence complaint of : U/s. 3 of Delhi Public Gambling
Act
5 Plea of accused : Pleaded not guilty
Page no. 1 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh
6 Final order : Accused No.1 Anil Kumar
Aggarwal stands convicted.
Accused No.2 Surender
Kumar @ Bittoo stands
acquitted
7 Date of order : 30.04.2019
BRIEF REASONS FOR SUCH DECISION :
1. Accused persons have been forwarded by the Inspector of Crime Branch, Adarsh Nagar to face trial U/s.3 & 4 of Delhi Public Gambling Act.
2. In a nut shell, the prosecution story is that on 02.11.2001 at about 9/10 P.M. at H.No.AA198, 3 rd floor, Shalimar Bagh, Delhi, accused Anil Kumar Aggarwal was found present and playing satta and being controlled through telephone by the coaccused Surender @ Bittoo and the coaccused Surender @ S.K. and so all three accused persons were found using the abovesaid premises as a gaming place where satta was being played on a cricket match between Pakistan and Srilanka being played at Sharjah. On this complaint, FIR was registered and after completion of remaining investigation, chargesheet was filed in the court.
3. Copy of charge sheet supplied to all three accused persons free of cost U/s 207 CrPC.
4. Finding a prima facie case, all three accused persons were charged U/s 3 of Delhi Public Gambling Act, to which they all pleaded not guilty and claimed trial.
5. During the trial, the matter was disposed off through plea Page no. 2 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh bargaining qua accused Surender Kumar @ S.K. S/o Sh. Sant Lal vide order dated 25.01.2012.
6. Prosecution to prove its case examined eight witnesses namely PW1 HC Yogender Singh, PW2 Sri Chand, PW3 SI Ram Avtar, PW4 HC Rishal Singh, PW5 G.C. Dwivedi, PW6 ASI Praveen Kumar, PW7 ASI Hardesh Kumar and PW8 Retd. ACP Ashok Kumar. Thereafter, Prosecution evidence was closed by court order.
7. Statement of accused Anil Kumar Aggarwal U/s 313 Cr.P.C.
was recorded separately wherein he denied all the allegations levelled against him and stated that he is innocent and he has been falsely implicated in the present case and it is a false case and he seeks to lead defence evidence. But later on, accused Anil Aggarwal closed his defence evidence vide his separate statement as he does not want to lead any defence evidence. Statement of accused Surender Singh @ Bittoo u/s.313 R/w 281 CrPC was recorded separately wherein he denied the entire incriminating evidence and stated that he has been falsely implicated in this case and he is innocent and he chose not to lead defence evidence.
8. I have heard the arguments advanced by the Ld. APP for the State as well as the Ld. Counsel for both the accused persons and gone through the case file carefully and thoroughly.
9. Prosecution in order to prove its case examined formal witnesses namely PW1 HC Yogender Singh and he proved that on 03.11.2001, on receiving rukka through Ct. Anil Kumar sent by IO SI Ram Avtar, he registered the present FIR and the copy of the same is Ex.PW1/A and he made endorsement on the rukka Ex.PW1/B. PW2 Srichand was examined and he stated that on 22.02.1989 he Page no. 3 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh had sold house no.AA198, Shalimar Bagh, New Delhi to Sandhya Aggarwal, wife of the accused Anil Kumar Aggarwal and he had executed receipt and agreement in this regard in the office of Sub Registrar, Delhi and the receipt is Ex.PW2/A and the agreement to sell Ex.PW2/B and he has correctly identified the accused present in the court.
10. Prosecution to prove its case examined the most crucial witnesses namely PW3 SI Ram Avtar, PW4 HC Rishal Singh, PW6 ASI Praveen Kumar, PW7 ASI Hardesh Kumar and PW8 Retd. ACP Ashok Kumar and they deposed that on 02.11.2001 at about 5:05 P.M. on receiving secret information by Inspector Ashok Kumar that satta/ gambling / betting on cricket is going on at House no.AA198, 3rd Floor, Shalimar Bagh, Delhi and Inspector Ashok Kumar apprised the ACP and the DD entry was lodged regarding this and Inspector Ashok Kumar alongwith SI Ram Avtar and secret informer did the reki of the said place and information was found to be correct and secret informer was discharged and then Inspector Ashok and SI Ram Avtar obtained search warrant Ex.PW3/A from DCP office and then Inspector Ashok Kumar went back to his office and a raiding party was constituted comprising of them all and Ct. Mukesh, Ct. Sanjay, Ct. Anil and a secret informer went alongwith raiding party in front of the said house of Shalimar Bagh at about 8:05 P.M. and SI Ram Avtar requested 5/6 neigbourhood persons and the passerby were asked to join the raiding party but none agreed. They further deposed that HC Praveen Kumar was made a decoy customer and he was handed over a sum of Rs.500/ denomination and the currency note bear the number "6 AS 532448" and the handing over memo Ex.PW3/B was prepared and HC Hardesh was deputed as a Page no. 4 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh shadow witness and the decoy customer was directed to fix the stake on the win of Pakistan.
11. Also, PW6 ASI Praveen Kumar and PW7 ASI Hardesh Kumar further deposed that at about 9:10 P.M., they went to the third floor of AA198, Shalimar Bagh, Delhi and accused was sitting on mat in a room at third floor and accused was having ear rings in his both ears and one TV was switched on in the said room and the match between Sri Lanka and Pakistan was going on and accused was having a mobile phone of make Nokia in his hand and four other telephones were kept on the mat and the prices of gambling were coming on one telephone set and other telephones were ringing and accused was hearing the rates and was recording in a register and his name was accused Anil Kumar Aggarwal. They further deposed that HC Praveen bet on the win of Pakistan and handed over Rs.500/ to the accused Anil Kumar Aggarwal and the accused Anil Kumar Aggarwal told HC Parveen that HC Parveen shall gain Rs.1,000/ if Pakistan wins and HC Praveen would not receive anything as benefit if Pakistan loses the match and accused Anil Kumar Aggarwal kept said currency note of Rs.500/ in yellow colour polythene and gave a hand written receipt to HC Praveen.
12. PW3 SI Ram Avtar, PW4 HC Rishal Singh, PW6 ASI Praveen, PW7 ASI Hardesh and PW8 Retd. ACP Ashok Kumar further deposed that HC Praveen and HC Hardesh came and apprised to them about all the facts and they all kept waiting till the finishing of match and at about 12 midnight, match finished and Pakistan won it and then on the directions of IO HC Praveen alongwith HC Hardesh went to the accused to receive the betting amount and they were told to signal to the IO. They further deposed Page no. 5 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh that at about 12:10 A.M., HC Praveen alongwith HC Hardesh went to the accused and handed over to accused his receipt and when accused was giving Rs.1,000/ to HC Praveen and in the meantime HC Hardesh gave signal to them and they being members of raiding party came there and accused Anil Kumar Aggarwal was apprehended. They further deposed that IO SI Ram Avtar started checking the accused Anil and from the possession of the accused Anil Kumar Aggarwal the said receipt earllier given by accused Anil to decoy customer was recovered and from his possession, three hand written pages in a pad were recovered and on page no.2 entry regarding bet by Praveen was mentioned and one yellow colour polythene was recovered from the accused Anil and from the said polythene, currency note of Rs.500/ handed over to the accused Anil by HC Praveen was recovered and the currency note and receipt were sealed by SI Ram Avtar in an envelope with the seal of 'RK' and seized vide seizure memo Ex.PW3/C and the remaining amount i.e. Rs.2,550/ recovered from yellow polythene were sealed with seal of "RK" in a separate envelope. They further deposed that in the room, one tape recorder of make AIWA having one cassette was recovered and beside this, five more cassettes were recovered and sealed in a white pullanda with a seal of "RK" and other articles recovered from the same room were used for playing satta and the said articles were four telephones, one mobile phone, one T.V. make Videocon, calculator, two notebook pads, one pen, one pencil and they were seized vide memo Ex.PW3/D and the satta register is Ex.PW3/F. They further deposed that on examination of the register, there was a satta of about Rs.3,00,000/ and the name of Praveen (i.e. HC Praveen) was also written on the same and the case Page no. 6 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh property was proved vide Ex.P1 to Ex.P9 & Ex. PW3/D1 and they identified the accused Anil Kumar Aggarwal correctly and IO SI Ram Avtar prepared rukka vide Ex.PW3/E and got the FIR registered through Ct. Anil.
13. They further deposed that that thereafter further investigation was handed over to IO ASI Rakesh and he came at the spot and accused and the case property were produced by SI Ram Avtar before ASI Rakesh and he prepared rough site plan at the instance of SI Ram Avtar.
14. Prosecution to prove its case examined PW5 Additional Commissioner of Police G.C. Dwivedi and he deposed that on 02.11.2001, he was working as DCP, Crime and Railways and on that day, Inspector Ashok Kumar, Crime Branch has informed him that he has received a credible information that house no.AA198, 3 rd floor, Shalimar Bagh was being used as a common gambling house and after necessary enquiry, he issued search warrant for conducting raid at the said house u/s.5 of Delhi Public Gambling Act, 1955 and the said warrant is already Ex.PW3/A. Ld. APP for the State has contended that prosecution is able to prove its case and accused Anil Kumar Aggarwal should be convicted.
15. On the other hand, both the accused have raised the only defence that they are innocent and they have been falsely implicated in the present case. Ld. Counsel for both the accused has contended that there is no incriminating evidence against accused Surender and therefore accused Surender should be acquitted. Ld. Counsel for accused Anil Kumar Aggarwal contended that there are inconsistencies in the testimony of prosecution witnesses and this fact throws doubt on the prosecution story. Ld. Counsel for accused Page no. 7 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh Anil Kumar Aggarwal also contended that no public person has been made as witness in the said raid conducted by the police and this fact further throws doubt on prosecution story. Ld. Counsel for accused Anil Kumar Aggarwal contended that since the decoy customer in the present case is a police officer and therefore the statement made by the accused Anil Kumar Aggarwal is inadmissible under section 162 CrPC as laid down in the judgment 'State Vs. Bashir Ahmed & Ors., 1983(23) DLT486', Ld. Counsel for accused Anil Kumar Aggarwal contended that all these aforesaid facts taken together throws doubt on prosecution story and therefore accused Anil Kumar Aggarwal should also be acquitted.
16. Keeping in view the defence taken by both the accused that they are innocent and falsely implicated in this case. The defence taken by the accused is of no use to the accused because no defence evidence has been led by both the accused persons to prove their defence.
17. Considering the contention of Ld. Counsel for accused Anil Kumar Aggarwal that there are inconsistencies in the testimony of the prosecution witnesses and this fact throws doubt on prosecution story. This contention of Ld. Counsel for accused Anil Kumar Aggarwal does not holds good due to the reason that these are not the inconsistencies but these are the minor variations and the minor variations are bound to occur in the testimony of crucial witnesses. Relying upon the judgment of the Hon'ble Supreme Court of India in 'Babasaheb Apparao Patil vs. State of Maharashtra AIR 2009 SC 1461' wherein it has been laid down that "some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness".
Page no. 8 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh
18. Considering the contention of Ld. Counsel for the accused Anil Kumar Aggarwal that no public person has been made as witness in the said raid conducted by police and this fact throws doubt on the prosecution story. This contention of Ld. Counsel for the accused Anil Kumar Aggarwal does not holds good due to the reason that it is a settled law that there is no mandatory requirement of a public person to be joined in the investigation. Also, PW3 SI Ram Avtar, PW4 HC Rishal Singh, PW7 ASI Hardesh Kumar and PW8 Retd. ACP Ashok Kumar and PW6 ASI Praveen Kumar have consistently stated that IO SI Ram Avtar requested 45 public persons to join the investigation but none of them agreed to it and left the spot without disclosing their name and addresses. This shows that the IO has made efforts to join the public persons but none has joined and it would not effect the merits of the case. Relying upon the judgment passed by Hon'ble Supreme Court of India in case 'Appabhai & Anr. Vs. State of Gujarat, AIR 1988 SC 696' wherein it has been held that "merely because of the failure on part of the prosecution to produce any independent witness to the incident that occurred at a public place like a bus stand where there must have been several of such witnesses, the prosecution case cannot be thrown out or doubted. Generally public are insensitive when a crime is committed even in their presence. The court instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused." In the present case, the accused Anil Kumar Aggarwal was carrying on satta / gambling on third floor in his room and therefore the said place cannot be said to be a public place.
Page no. 9 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh
19. Keeping in view the contention of Ld. Counsel for accused Anil Kumar Aggarwal that since the decoy customer in the present case is a police officer and therefore the statement made by the accused Anil Kumar Aggarwal is inadmissible under section 162 CrPC as laid down in the judgment 'State Vs. Bashir Ahmed & Ors., 1983(23) DLT486' and this fact throws doubt on the prosecution story. This contention of Ld. Counsel for the accused does not holds good due to the reason that the said judgment relied upon by the accused Anil Kumar Aggarwal does not applies to the present facts and circumstances because in the said judgment, accused has committed the offence under the suppression of immoral traffic in Women and Girls Act, by way of solicitation only. But in the present case, the IO has prepared the handing over memo of the currency note of Rs.500/ and the decoy customer HC Praveen has put satta on the wining of cricket match by Pakistan played at Sharjah between Sri Lanka and Pakistan and thereafter the decoy customer has received Rs.1,000/ as wining amount after the Pakistan won the match and in the present case, the other equipments used by the accused Anil Kumar Aggarwal and the other currency notes which has been put on satta by other public persons etc. have also been recovered. Further, accused Anil Kumar Aggarwal was not aware that a decoy customer with whom he was dealing for making him to bet through satta on the cricket match was a police officer and therefore the entire raid conducted by the police could not be said to be hit u/s.162 CrPC because apart from the statement of the accused Anil Kumar Aggarwal, many other articles / equipments etc. used by the accused in the offence were also recovered from the accused Anil Kumar Aggarwal which corroborates the offence Page no. 10 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh committed by the accused Anil Kumar Aggarwal.
20. As far as the contention of the accused Surender that there is no incriminating evidence against the accused Surender and therefore accused Surender should be acquitted. This contention of accused Surender holds good due to the reason that PW4 HC Rishal Singh, PW8 Retd. ACP Ashok Kumar have not uttered a word against accused Surender. Further PW6 ASI Praveen Kumar, decoy customercumeye witness and PW7 ASI Hardesh Kumar, shadow witness and PW3 SI Ram Avtar IO have even not deposed any incriminating evidence against accused Surender. Also, PW 3 SI Ram Avtar and PW6 ASI Praveen Kumar stated that interrogation was done from the accused Anil Kumar Aggarwal and the accused Anil Kumar Aggarwal during interrogation told that S.K. and Surender @ Mundi are the main bookies and their mobile phones were told by him. It is a settled law that any disclosure made by the accused during investigation to the IO is hit u/S.25 & 26 of the Indian Evidence Act. Further, no specific role has been proved against the accused Surender. There is no incriminating evidence against accused Surender. Thus, prosecution has miserably failed to prove its case qua accused Surender. Even the identity of the accused Surender is not proved. All these aforesaid facts throws doubt on the prosecution story qua accused Surender. The benefit of doubt goes in favour of the accused Surender. Hence accused Surender is acquitted of the charges levelled against him by giving him the benefit of doubt.
21. Keeping in view the fact that the essential ingredients of the offence u/s.3 of Delhi Public Gambling Act are that "whoever being the owner or occupier or having the use of any house, room etc. Page no. 11 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh opens, keeps or uses the same as a common gaminghouse". To prove it, prosecution examined PW6 ASI Praveen Kumar, decoy customercumeye witness and PW7 ASI Hardesh Kumar Shadow witnesscumeye witness and they have stated that on 02/11/2001 at about 9:10 P.M. they went to third floor of AA198, Shalimar Bagh, Delhi and the accused Anil Kumar Aggarwal was siting on a mat in a room at third floor and he was having earings in his both ears and one TV was switched on in the said room and the match between Sri Lanka and Pakistan was going on. They further deposed that accused Anil Kumar Aggarwal was having a mobile phone of make Nokia in his hand and four other telephones were kept on the mat and the prices of gambling were coming on one telephone set and the other telephones were ringing and the accused Anil Kumar Aggarwal was hearing the rates and was recording in a register. They further stated that name of the accused was accused Anil Kumar Aggarwal. They further stated that HC Praveen bet on the win of Pakistan and handed over Rs.500/ to accused Anil Kumar Aggarwal and accused Anil Kumar Aggarwal told HC Praveen that HC Praveen shall gain Rs.1,000/ if Pakistan wins and shall not receive anything as benefit if Pakistan loses the match and the accused Anil Kumar Aggarwal kept the said currency note of Rs.500/ in a yellow colour polythene and gave a hand written receipt to HC Praveen. They further stated that at about 12 midnight match finished and Pakistan won it. They further stated that on the direction of the IO, they went to accused Anil Kumar Aggarwal to receive their betting amount and they were told to give signal to IO as the amount is received. They further stated that at about 12:10 A.M., they went to the accused Anil Kumar Aggarwal and handed over to him their Page no. 12 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh receipt and in the meantime, HC Hardesh Kumar gave signal to the raiding party by putting his hand on his head when the accused Anil Kumar Aggarwal gave winning amount of Rs. 1,000/ to HC Praveen. They also proved that before sending HC Parveen as a decoy customer and HC Hardesh as a shadow witness. IO took personal search of HC Parveen and took out all his belongings and thereafter, IO handed over one currency note of Rs. 500/ bearing no. 6AS 532 448 to HC Parveen and the said note was signed by IO and it was handed over to HC Parveen vide handing over memo Ex. PW3/B and HC Hardesh was prepared as a shadow witness. Further PW3 SI Ram Avtar IO, PW4 HC Rishal Singh, PW6 ASI Praveen Kumar, PW7 ASI Hardesh Kumar and PW8 Retd. ACP Ashok Kumar have correctly identified the accused Anil Kumar Aggarwal present in the court and also consistently proved the prosecution case. They also proved that the currency note of Rs. 500/ bearing no. 6AS 532 448 is Ex. P8 and the satta slip is Ex. P9 and the satta slip was torn from booklet Ex. PW3/D1 and they also proved the other articles used by the accused Anil Kumar Aggarwal in the satta are Ex. P1 to P7. Also no motive on part of prosecution witnesses to falsely implicate the accused Anil Kumar Aggarwal is proved by the accused Anil. Further, PW2 Srichand, previous owner of said premise has proved that said premises are owned by wife of the accused Anil Kumar Aggarwal since 22/02/1989. Thus prosecution is able to prove all the essential ingredients of the offence punishable u/S.3 of the Delhi Public Gambling Act qua the accused Anil Kumar Aggarwal.
22. Keeping in view the aforesaid reasoning and in view of the fact that testimony of all the PWs are clear, convincing and reliable and Page no. 13 State Vs. Anil Kumar Aggarwal and Ors.
FIR No. 743/2001 State Vs. Anil Kumar Aggarwal and Ors. PS: Shalimar Bagh no material has come on record which falsify their evidence. Also, all the essential ingredients of offence u/S.3 of the Delhi Public Gambling Act qua the accused Anil Kumar Aggarwal has been fully established. I am of the considered view that prosecution was able to prove its case qua the accused Anil Kumar Aggarwal. beyond reasonable doubt. Hence, accused Anil Kumar Aggarwal is accordingly convicted for the offence punishable u/s.3 of the Delhi Public Gambling Act, 1955.
Let, accused Anil Kumar Aggarwal be heard separately on the point of sentence on 16.05.2019.
Digitally signed by EKTA EKTA GAUBA
ANNOUNCED IN THE OPEN COURT GAUBA Date:
2019.04.30
TODAY ON 30.04.2019 17:40:30 +0530
(EKTA GAUBA )
Addl. Chief Metropolitan Magistrate, NW
Rohini Courts/Delhi 30.04.2019
Page no. 14 State Vs. Anil Kumar Aggarwal and Ors.