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Madhya Pradesh High Court · body

2007 DIGILAW 988 (MP)

Rakesh Rai v. State of M. P.

2007-09-11

RAKESH SAKSENA

body2007
ORDER 1. Petitioner has filed this revision against the order dated 31st January 2006, passed by Vth Additional Sessions Judge, Sagar, in Criminal Appeal No. 275/05, affirming the judgment dated 31.8.2005, passed by Judicial Magistrate First Class, Sagar, in Criminal Case No. 2450/04 (Old No. 200/96), convicting the petitioner for the offence under sections 3 and 4 of Public Gambling Act and sentencing him to deposit fine of Rs. 500/on each count respectively. In default of payment of fine, simple imprisonment for 15 days on each count. 2. In short, the prosecution case is that on 25.2.1996 Sub-Inspector Purshottam Lal Ahirwar of Police Station Motinagarh, Sagar, received information that some persons were gambling in the house of petitioner situated at Chandra Shekhar Ward, Sagar. He obtained authorization for search of the petitioner's house from City Supdt. of Police, Sagar, viz R.P. Singh and taking two independent witnesses viz Goverdhan Kori and Narayan Sahu and police force alongwith him reached at the house of petitioner. Goverdhan looked through a window in the house and saw several persons gaming in the room. On knocking door, petitioner opened the door. P.L. Ahirwar showed him the search warrant and entered the house. They found 9 persons gaming there. The persons, who were gaming, were nabbed, but petitioner, who had a container in his hand, started running. He got struck against door, as a result of which, container of his hand fell down. It was found that Rs. 1,640/- were in the container, which he had collected by way of 'Naal Katai'. Petitioner, however, managed to run away from the spot. The container and the money was seized before the witnesses. Other accused persons viz Rajesh Keshwarwani, Manoj Jain, Sanjay Jadiya, Sunderlal Sahu, Mahesh Sahu, Aman Jain, Prahlad Hariyani and Dilip, who were playing cards with money, were arrested at the spot. An amount of Rs. 12,240/-. was seized from the possession of those persons in the gambling den. Besides that, 52 cards, a carpet and electric bulb were also seized. Dehati Nalishi was recorded at the spot. On returning to police station, first information report was recorded. 3. Learned Magistrate charged the petitioner and other accused persons for the offence under section 3/13 of the Public Gambling Act (hereinafter referred to as 'the Act') and explained the particulars. 4. The petitioner abjured his guilt and pleaded false implication due to political rivalry. On returning to police station, first information report was recorded. 3. Learned Magistrate charged the petitioner and other accused persons for the offence under section 3/13 of the Public Gambling Act (hereinafter referred to as 'the Act') and explained the particulars. 4. The petitioner abjured his guilt and pleaded false implication due to political rivalry. According to him, he was called from his house and arrested at Moti Nagar Police Station. Police had seized Rs. 2,000/- from his pocket. 5. The prosecution examined seven witnesses to substantiate the accusation against the petitioner. PW 1 Goverdhan Prasad, the only independent witness did not support the prosecution case. However, PW 2 R.P. Rawat, Sub-Inspector, PW 3 D.R. Kohli, Police Inspector, PW 4 Om Prakash Rajput, Constable, PW 5 Rajpal Singh, Constable, PW 6 Raj Kumar, Constable, PW 7 Nagendra Kumar Pateriya Police Inspector and PW 8 Purshottam Lal Ahirwar, Sub Inspector, Moti Nagar, Sagar, supported the prosecution case. Relying upon the evidence given by the aforesaid witnesses, learned Magistrate held the petitioner guilty for the offence under sections 3 and 4 of the Act and sentenced him to pay fine, as mentioned above. 6. Appeal preferred by petitioner before the Court of Sessions was dismissed by V Additional Sessions Judge, Sagar. Hence, this revision. 7. Learned counsel for the petitioner submits that the only witness Goverdhan did not support the prosecution case. Another independent witness of the raid viz Narayan Sahu was not produced by the prosecution. The case rested only on the evidence of police witnesses. He submits that though petitioner was not charged for the offence under section 4 of the Act, but learned Courts below convicted him for the said offence also Counsel further submits that the conviction of the petitioner under sections 3 and 4 of the Act is illegal because the authorization warrant allegedly issued by the City Sudpt. of Police, R.P. Singh, was not proved. In the absence of proof that authority prescribed under section 5 of the Act received any credible information and after enquiry thought it necessary or had reason to believe that any house of place was being used as a common gaming house, the issuing of warrant of authorization to a police officer would vitiate the conviction. In the absence of proof that authority prescribed under section 5 of the Act received any credible information and after enquiry thought it necessary or had reason to believe that any house of place was being used as a common gaming house, the issuing of warrant of authorization to a police officer would vitiate the conviction. Since in the present case concerned warrant of authorization itself was not proved, the conviction of petitioner for the offence under section 3 as well as section 4 of the Act is illegal and deserves to be set aside. Learned counsel placing reliance on the decision of this Court in Rambharti and others v. State of M.P [ 2006 (III) MPWN 74 = 2006 (3) MPHT 176 ] submits that merely recovery of the money, carpet and playing cards no presumption under section 6 of the Act cannot be drawn and that if warrant is illegal, presumption under section 6 of the Act cannot be drawn. 8. On perusal of record, it is found that except PW 1 Goverdhan, all the prosecution witnesses are police officers. Other independent witness of raid and seizure viz Narayan Sahu was not examined before the Court. Although all the police witnesses deposed that on receiving information from an informer, they went to the house of the petitioner and sawall the accused persons gaming and that petitioner ran out from the spot, but it has not established that Purshottamlal Ahirwar, Sub Inspector, had obtained a valid warrant of authorization for entering the house of petitioner. Though PW 8 Purshottamlal Ahirwar deposed that he had obtained a search warrant from City Supdt. of Police, Sagar, R.P. Singh, but no such warrant was proved by him before the Court. City Supdt. of Police, Sagar, R.P. Singh was not examined before the Court to prove that he issued such warrant. Though on perusal of unexhibited document, it is seen that a printed form containing authorization is annexed in the file, but merely by its presence in the file, it cannot be accepted as a piece of evidence. Issuance of authorization warrant under section 5 of the Act is an important exercise of power. Though on perusal of unexhibited document, it is seen that a printed form containing authorization is annexed in the file, but merely by its presence in the file, it cannot be accepted as a piece of evidence. Issuance of authorization warrant under section 5 of the Act is an important exercise of power. Section 5 provides that if the Magistrate of a District or other officer invested with the full powers of a Magistrate or District Superintendent of Police, upon credible information, and after such enquiry as he may think necessary, has reason to believe that any house, walled enclosure, room or place, is used as a common gaming-house; he may either himself enter or by his warrant authorise any officer of police, not below such rank as the State Government shall appoint in this behalf to enter, by night or by day and by force, if necessary, any such house or room or place and may take into custody all persons whether or not then actually gaming and may seize money etc. The phraseology used by legislature in the provision clearly indicates that the matter of issuing authorization warrant is an important exercise of powers and it should be exercised with due care and caution after due application of mind. 9. If the search warrant is not proved or the warrant is a printed proforma warrant on which the authority has barely signed, it means that the authority has not used his reasoning power before signing the same. 10. In the case of Rambharti (supra), it has been observed that since such authorization warrant has no force in the eyes of law because it was issued without application of mind as routine work, no presumption can be drawn under section 6 of the Act. In the case of Parasram v. Emperor [AIR 1930 Allahabad 740] it was held that if warrant is illegal, presumption under section 6 of the Act cannot be drawn. 11. In view of the above proposition of law, merely by the fact that cards, carpet and money were found in the house of applicant, it cannot be presumed that petitioner used his house as a common gaming house. It is also important to note that the Sub Inspector Purshottam Lal Ahirwar, who conducted the raid, himself investigated the case. 11. In view of the above proposition of law, merely by the fact that cards, carpet and money were found in the house of applicant, it cannot be presumed that petitioner used his house as a common gaming house. It is also important to note that the Sub Inspector Purshottam Lal Ahirwar, who conducted the raid, himself investigated the case. During investigation he did not make any attempt to collect the documents to establish that the house where the accused persons were found, belonged to petitioner or he was in occupation of that house. From the evidence of PW 5 Om Prakash and PW 8 Purshottarnlal Ahirwar, it is apparent that at the time of occurrence petitioner was a Corporator. In the statement of petitioner, recorded under section 313 CrPC, he stated that he was falsely implicated due to political rivalry. In view of the above circumstances, I am of the view that it has not been established beyond doubt that petitioner was owning or keeping or having charge of a gaming house, as such his conviction under section 3 as well as section 4 of the Act does not appear to be justified. 12. Taking into consideration all the above circumstances, I am of the view that the Courts below have committed error in holding the petitioner guilty. Accordingly, this revision is allowed. The judgment and order of conviction of the petitioner passed by the Courts below is set aside. He is acquitted of the charge under sections 3 and 4 of the Act. The fine amount, if deposited by the petitioner, be returned to him.