Gauhati High Court
Shri Paritosh Paul vs The State Of Assam on 21 August, 2007
Equivalent citations: 2007CRILJ4734, 2007 CRI. L. J. 4734, (2007) 60 ALLINDCAS 555 (GAU)
Author: Aftab H. Saikia
Bench: Aftab H. Saikia
JUDGMENT Aftab H. Saikia, J.
1. Both the cases are being taken up together for hearing and final disposal by this common judgment and order as the factual matrix of both these cases are being similar and identical in nature carrying common question of law.
2. Heard Mr. N. Choudhury, learned Counsel for the petitioner and Mr. B.B. Gogoi, learned P.P. Assam in Crl. Rev. No. 397/03 and also Mr. N.H. Mazorbhuyan, learned Counsel for the petitioner and Mr. B.B. Gogoi, learned P. P. Assam in Crl. Rev. No. 415/03.
3. The correctness and legality of the appellate judgment and order dated 24-4-2003 passed by the learned Sessions Judge, Cachar at Silchar in C.A. No. 13{4)/2002 dismissing the appeal and thereby affirming the judgment and order dated 22-10-2002 passed by the learned Sub-Divisional Judicial Magistrate (S), Silchar in G.R. Case No. 1840/98 by which both the petitioners in these two revision petitions were convicted under Section 14 of the Assam Game and Betting Act, 1970 (for short, 'the Act') and were sentenced to Rigorous Imprisonment (for short, 'R.I.') for six months and to pay a fine of Rs. 1000/- in default, to suffer simple imprisonment in another 1 (one) month.
4. The prosecution case in brief is that P.W. 3, Shri Harendra Ch. Das serving as A.S.I, of Sonai Police Station (for short, the informant') lodged a suo motu FIR with the said P.S. alleging that on 25-7-1998 at 2 p.m. while he along with other staff were on patrolling duty at Sonai Bazaar, came to know from a secret source that some persons were playing ending lottery in a house at Sonai bazar and immediately he along with other staff rushed to the place of occurrence and caught red-handed 2 accused persons namely, Aminul Haque Khan and Shri Paritosh Paul, the present petitioners herein, with money and tickets. The other persons fled away from the place of occurrence.
5. On the basis of such FIR police started investigation and after completion of investigation, the police submitted charge-sheet against the accused persons under the aforesaid section of law.
6. Before the trial Court, the prosecution examined as many as 3 witnesses, all being the police personnel, namely P.W. 1 Nazmul Hussain, P.W. 2, Shri G. Rongmal and P.W. 3 as mentioned above.
7. During the trial, on appreciation of the material evidence on record including those prosecution witnesses and also having heard the learned Counsel for the parties, the learned Magistrate found both the petitioners were guilty of an offence under the aforesaid section of law and convicted and sentenced them accordingly as already noted above.
8. Being aggrieved by the impugned conviction and sentence, the accused-petitioners as appellants preferred appeal before the appellate Court, being the learned Sessions Judge, Cachar at Silchar, through C.A. No. 13(4)/2002. However, the learned Judge declined to interfere with the impugned conviction and sentence and accordingly, the said appeal was dismissed by the impugned judgment and order upholding the conviction and sentence aforesaid.
9. In support of this revision petition and, also assailing the impugned appellate judgment and order affirming the impugned conviction and sentence so handed down to the petitioners by the trial Court, it is argued on behalf of the petitioners that the impugned conviction and sentence was based on no evidence as no case could be made out by the prosecution to rope in the petitioners under Section 14 of the Act.
10. Section 14 of the Act runs as under:
14. Punishment for betting, inviting or accepting betting or possessing instrument or records of betting-
Anybody who bets or invites betting or possesses any instrument of betting or records of betting or accepts betting as defined by the provisions of this Act shall be punished with rigorous imprisonment for not less than six months but not exceeding three years and a fine of rupees one thousand but not exceeding rupees two thousand.
11. According to Mr. Choudhury, learned Counsel for the petitioners the essential ingredient of Section 14 of the Act as required under the law is that the accused must bet or invite or possess any instrument of betting. But in the instant case, nothing of the said essential ingredient has been put on record from the testimony of the witnesses. His prime contention is that all the witnesses namely P.Ws. 1, 2 and 3, being the police personnel, could not find anything from the possession of the accused-petitioners and even both of them were not arrested from the place of occurrence. That being the factual position, there is no scope for fulfillment of the ingredients of Section 14 of the Act as mentioned above and on this count alone, the petitioners are entitled to get the benefit of acquittal. Besides it is also strongly contended by the learned Counsel for the petitioners that the trial Court peculiarly observed that it was the burden of the defence to disprove that they were not at the gambling place i.e. the place of occurrence and they were not involved with inviting or accepting betting and in the instant case defence failed to disprove the fact by crushing the prosecution evidence or by adducing its own evidence. This particular finding so reflected in the trial Court was structured contrary to the provision of law and the same is not permissible under the criminal jurisprudence. According to him, burden is always on the prosecution to prove its own case.
12. Per contra, Mr. Gogoi, learned Counsel for the petitioner has submitted that since this revision petition has been preferred against the concurrent findings of both the Courts below i.e. the trial Court as well as the appellate Court, there is no convincing or cogent ground warranting interference with the impugned conviction and sentence.
13. I have given my anxious consideration to the submissions made by the rival parties. Also closely perused the entire materials on record including the impugned judgments and orders of both the Courts below.
14. The basic thing that struck is that the essential ingredient of Section 14 of the Act has not been fulfilled in the case in hand. As already indicated, Section 14 of the Act provides punishment of an accused who bets or invites betting or possesses any such instrument of betting or records of betting or accepts betting. In the instant case, on meticulous scanning of the testimony of the witnesses as recorded in the trial Courts judgments, it transpires that the prosecution has failed to prove to establish such essential ingredient of Section 14 of the Act against the petitioners. It also appears that the same was not even discussed by the Courts below. Moreso, it is amazing to find that both the Courts below shifted burden of proof to the defence observing that they failed to disprove the fact that they were not gambling at the place i.e. the place of occurrence and they were not involved with inviting or accepting betting. Records would also go to show that the petitioners were not arrested or apprehended by the police i.e. the P.W. 3, the A.S.I, from the place of occurrence and it also came from records that no betting materials as indicated under Section 14 of the Act were ever recovered from the possession of the petitioners. It is also seen that the appellate Court did not consider the evidence of the witnesses in its proper perspective to arrive at the conclusion that the prosecution could prove the case against the petitioners beyond reasonable doubt.
15. In view of what has been discussed, stated and observed above, this Court is of the considered view that since the essential ingredient of Section 14 of the Act is not available in the present case, the impugned conviction and sentence cannot be sustained in law and accordingly, the impugned conviction and sentence is hereby set aside and quashed.
16. In the result both the revision petitions stand allowed. L.C.R. be sent down immediately.