Judgment ( 1. ) THE applicant being aggrieved by the judgment dated 3. 3. 1998 passed by the learned Sessions Judge, Sehore in Criminal Appeal No. 88/1997 confirming the judgment dated 2. 12. 1997 passed by the learned Chief Judicial Magistrate, Sehore in Criminal Case No. 400/1997 convicting the applicant/appellant under Section 3 and Section 4 of the Public Gambling Act, 1867 {in its application to State of Madhya Pradesh} and sentencing him to undergo jail sentence of till rising of the Court and pay a fine of Rs. 300/-under Section 3 of the Act, has come to this Court. It is to be noted even at this stage that no separate sentence has been awarded to the applicant under Section 4 of the Act. ( 2. ) SHORT facts necessary for decision of this criminal revision are that one j. P. Verma {pw-4}, Sub-Inspector posted at Kotwali, Sehore, on 4. 5. 1997 received an information that in a particular house, people are engaged in gambling. According to him, the matter was immediately reported to Sub Divisional Officer {police}, he obtained a warrant of search and thereafter, with the Police Force went to the house No. EWS-16. After peeping from the cracks 6f the doors, he found that the present applicant and three others, namely, Rajesh S/o. Gendalal, Rambabu S/o. Prithvilal and Trilok Sharma S/o. Rammurti Sharma were engaged in gambling. The door was opened. The accused persons were apprehended. From possession of different accused persons, different amounts were recovered from their pockets, and certain amounts were also recovered, which were lying in front of each accused. A deck of cards was also recovered. A total sum of Rs. 7,470/-was recovered and immediately thereafter, the First Information Report {exhibit P/6} was registered. ( 3. ) AFTER completion of the investigation, the Police filed Chalan but as each of the accused denied commission of the offence, they were subjected to trial. The charges levied against the accused were that they committed offences punishable under Section 3 and Section 4 of the Public Gambling Act, 1867. ( 4. ) THE prosecution in support of its case examined PW-1 Chouthmal a Home guard {sepoy}, PW-2 Kamlesh Trivedi a Tractor Mechanic, PW-3 Alok shrivastava Sub Inspector {police} and PW-4 J. P. Verma Sub Inspector, Kotwali, sehore. ( 5. ( 4. ) THE prosecution in support of its case examined PW-1 Chouthmal a Home guard {sepoy}, PW-2 Kamlesh Trivedi a Tractor Mechanic, PW-3 Alok shrivastava Sub Inspector {police} and PW-4 J. P. Verma Sub Inspector, Kotwali, sehore. ( 5. ) AFTER hearing the parties, the learned Trial Court held that the prosecution was successful in bringing home the guilt, it accordingly convicted each of the accused under Sections 3 and 4 of the Act but, however, awarded sentences under section 3 of the Public Gambling Act, 1867 only and did not award any sentence under Section 4 of the Act. ( 6. ) THE applicant and three others being aggrieved by the said convictions and sentences preferred appeal but as the same proved futile, the present applicant is before this Court. ( 7. ) IT is to be noted that on 25. 3. 2008, this Court observing that the present applicant, who was Head Constable of Police, if was engaged in public gambling then he was required to be properly sentenced. The Court accordingly ordered that notice be issued to him that why the sentences be not enhanced to three months rigorous imprisonment and fine of Rs. 2000/-and why appropriate punishment/sentence be not awarded to the applicant for the offences punishable under Section 4 of the Public Gambling Act, 1867. ( 8. ) SHRI Ramesh Kumar, learned counsel for the applicant after taking me through the evidence and the provisions of law submitted that Section 3 and Section 4 of the Public Gambling Act, 1867 apply to different eventualities. According to him, section 3 would apply to a case where a particular person is owning or keeping or is having charge of a gaming-house but Section 4 would apply to a case where a particular person is found in a gaming-house Referring to Section 13, it was submitted that if any person is indulged in gambling at a public place then a Police officer may apprehend such person and take search without any warrant. ( 9. ) ACCORDING to learned counsel for the applicant, for a search under Section 3, which would also include search of a person found in the gaming-house, would be governed by Section 5 of the Act. ( 9. ) ACCORDING to learned counsel for the applicant, for a search under Section 3, which would also include search of a person found in the gaming-house, would be governed by Section 5 of the Act. According to him, if there is no proper authorization or the warrant issued by an appropriate competent authority is not proved or produced before the Court then the entry in the gaming-house, search and seizure, all-would become illegal and such illegality cannot provide appropriate legal foundation for holding the accused guilty. ( 10. ) LEARNED counsel for the applicant has also placed his strong reliance upon the judgment of this Court in the matter of Rakesh Rai Versus State of M. P. 2007 III M. P. Weekly Notes, Note No. 124 and on the case of Ram Bharti and others Versus State of M. P. 2006 III M. P. Weekly Notes, Note No. 74. ( 11. ) IT is submitted by the learned counsel for the applicant that as the independent witnesses have not supported the prosecution case, therefore also, the Courts below were unjustified in relying upon the testimony of the departmental witnesses. His submission is that if the document was available in the records then it was required to be produced and if the warrant is not produced in evidence and it is not shown that the competent officer after applying his mind issued the warrant, the warrant could not authorize the Police Officer to make an enquiry in the gaming-house. ( 12. ) LEARNED counsel for the applicant has also submitted, placing reliance upon a judgment in the matter of Nazir Ahmad Versus King Emperor {air 1936 Privy Council 253 {2} that if a thing is to be done in accordance with the procedure prescribed then it should be done in accordance with the procedure or not at all. Submission in fact is that if the warrant is not produced in the Court and the police Officer did not act in accordance with law, the Courts, below could not convict the applicant. ( 13. Submission in fact is that if the warrant is not produced in the Court and the police Officer did not act in accordance with law, the Courts, below could not convict the applicant. ( 13. ) IN relation to the notice for enhancement of sentence, it is submitted by the learned counsel for the applicant that in case the arguments for acquittal are not accepted then as Sections 3 and 4 provide for alternative sentences and as the jail sentence is not mandatory, this Court after taking into consideration that the matter is pending consideration before different Courts for last eleven years, the jail sentence may not be awarded to the applicant. ( 14. ) SHRI T. S. Ruprah, learned Additional Advocate General for the State, on the other hand, submitted that in the present case, it was nobodys case that a warrant was not issued and in execution of the warrant or charged with the warrant, search was not taken. According to him, the only dispute before the Courts below was that whether the House No. 16 or House No. 60 or House No. 369 was searched. According to him, J. P. Verma {pw-4} has clarified the totality of the facts and if the stock of the facts are taken into consideration, it would clearly appear that a search was taken in House No. 16 but due to some inadvertence, house No. 60 was mentioned in the search memo and the other documents. ( 15. ) EXPLAINING further, it is submitted by Shri T. S. Ruprah, learned Additional Advocate general for the State that No. 369 was given to the house by the Municipality but there is nothing on the record that the said House No. 369 is different from House No. 16, a number given by the Housing Board. It is also submitted by him that even if the accused is acquitted of the charge punishable under Section 3 of the Act, this Court must award appropriate jail sentence to the accused under Section 4 of the Act taking into consideration that a person, who was to maintain Law and Order and show exemplary conduct was engaged in commission of the offences. ( 16. ) I have heard the parties at length and have perused the provisions of law and the records. ( 17. ( 16. ) I have heard the parties at length and have perused the provisions of law and the records. ( 17. ) FOR proper appreciation of the matter, it would be necessary to refer to section 3, Section 4 and Section 5 of the Public Gambling Act, 1867, which read as under:- "3. ( 16. ) I have heard the parties at length and have perused the provisions of law and the records. ( 17. ) FOR proper appreciation of the matter, it would be necessary to refer to section 3, Section 4 and Section 5 of the Public Gambling Act, 1867, which read as under:- "3. Penalty for owning or keeping, or having charge of, a gaming-house.-Whoever, being the owner or occupier, or having the use, of any {house, room, tent, enclosure, space, vehicle, vessel or place} situate within the limits to which this Act applies, opens, keeps or uses the same as a common gaming-house; and whoever, being the owner or occupier of any such {house, room, tent, enclosure, space, vehicle, vessel or place} as aforesaid, knowingly or willfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house; and whoever, has the care or management of, or in any manner assists in conducting, the business or any {house, room, tent, enclosure, space, vehicle, vessel or place} as aforesaid, opened, occupied, used or kept for the purpose aforesaid; and whoever advances or furnishes money for the purpose of gaming with person frequenting such {house, room, tent, enclosure, vehicles, vessel or place:} {shall be punished- {a} for a first offence with imprisonment which may extend to {six months} or with fine which may extend to {one thousand rupees;} {b} for a second offence with imprisonment which may extend to {one year} and, in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, shall not be less than {fourteen days} either with or without fine which may extend to {two thousand rupees;} and {c} for a third or subsequent offence with imprisonment which may extend to {one year} and, in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, shall not be less than {four months} together with fine which may extend to {two thousand rupees} 4 Penalty for being found in gaming-house - Whoever is found in any such {bouse, tents, rooms, enclosure, space,vebicle, vessel or place} playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found there present for the purpose of gaming, whether playing for any money, wager, stake or otherwise, shall be liable to a fine not exceeding {five hundred rupees} or to imprisonment of either description, as defined in the Indian Penal code {45 of 1860}, for any term not exceeding {four months} and any person found in any common gaming-house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming. {4-A Punishment for printing or publishing digits, figures, signs, symbols or pictures relating to Worli Matka or other form of gaming- {1} Whoever prints or publishes in any manner whatsoever any digits or figures or signs or symbols or pictures or combination of any two or more of such digits or figures or signs or symbols or pictures relating to Worli Matka or any other form of gaming under any heading whatsoever or by adopting any form or device, or disseminates or attempts to disseminate or abets dissemination of information relating to such digits or figures or signs or symbols or pictures or combination of any two or more of them shall be punishable with imprisonment which may extend to six months and with fine which may extend to one thousand rupees. {2} Where any person is accused of an offence under subsection {1}, any digits or figures or signs or symbols or pictures or combinations of any two or more of such digits or figures or signs or symbols or pictures in respect of which the offence is alleged to have been committed shall be presumed to relate to Worli Matka gaming or some other form of gaming unless the contrary is proved by the accused}. . 5. . 5. Powers to enter and authorize police to enter and search -If the Magistrate of a district or other officer invested with the full powers of a Magistrate, or the District Superintendent of Police, {or the Deputy or the Assistant Superintendent of Police} upon credible information and after such enquiry as he may think necessary, has reason to believe that any {house, room, tent, enclosure, space, vehicle, vessel or place} is used as a common gaming house; he may, either himself enter, or by his warrant authorize any officer of police, not below such rank as the State Government shall appoint in this behalf to enter with such assistance as may be found necessary, by night or by day, and by force if necessary, any such {house, room, tent, enclosure, space, vehicle, vessel or place}; and may either himself take into custody, or authorize such officer to take into custody, all persons whom he or such officer finds therein, whether or not then actually gaming; and may seize or authorize such officer to seize all instruments of gaming, and all moneys and securities for money, and articles of value, reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein {and also all moneys and securities for money found on the person of such persons as are found playing or gaming or found there present for the purpose of gaming within the meaning of Section 4}; and may search or authorize such officer to search all parts of the {house, room, tent, enclosure, space, vehicle, vessel or place} which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein, and also the persons of those whom he or such officer so takes into custody; and may seize or authorize such officer to seize and take possession of all instruments of gaming found upon such search: {5-A. Seizure of register, record of writing - If the District magistrate or the Additional District Magistrate or a Police Officer not below the rank of Assistant Superintendent of Police is of the opinion that any register, record or writing of any kind whatsoever which contains digits or figures or signs or symbols or pictures or combination of any two of more of such digits, figures, signs, symbols or pictures relates to Worli Matka gaming or some other form of gaming, he shall be entitled to seize the same, and such register record or writing shall be presumed to be an instrument of gaming unless it is shown by the person from whom it is seized that it is a register, record or writing of any transaction in connection with a lawful trade, industry, business, profession or vocation or of any lawful personal transaction of any person or it is otherwise not any instrument of gaming}" ( 18. ) SECTION 3 of the Act clearly provides that whoever being the owner or the occupier or having the use of any house, room, tent, enclosure, space, vehicle, vessel or place, situate within the limits to which the act applies, opens, keeps or uses the -same as a common gaming-house etc, may be punished as provided under Section 3 of the Act. A perusal of Section 3 would make it clear that it provides for punishment against a person, who is owning or keeping or is having charge of a gaming-house. ( 19. ) SECTION 4 of the Act provides that whoever is found in a gaming-house may be punished in accordance with Section 4 of the Act. ( 20. ) SECTION 5 of the Act provides that if the Magistrate of a district or other officer invested with the full powers of a Magistrate, or the District Superintendent of Police or such officers as described in Section 5 may issue a search warrant provided upon credible information and after such enquiry as he/they may think necessary form an opinion to believe that a particular place etc is used as a common gaming-house. ( 21. ) IN the present case, J. P. Verma {pw-4} after receiving the information immediately recorded the same and approached the Sub Divisional Officer {police} and submitted before him that a particular place was being used as a gaminghouse. The Sub Divisional Officer {police} after being satisfied issued the warrant of search. Once the Sub Divisional Officer {police} recorded his satisfaction and issued the warrant then charged with the authority of the warrant, J. P. Verma {pw-4} and the force accompanying him were entitled to enter in the house. It is proved from the documents and the evidence of PW-3 Alok Shrivastava and PW-4 j. P. Verma that on the authority of a search warrant, search was made at a particular place and cash amount and a deck of cards were seized. ( 22. ) SUBMISSION made by Shri Ramesh Kumar, learned counsel for the applicant is that if the Investigating Officer is not examined and it is not proved before the court that the search warrant was issued exercising reasoning powers or the search warrant is not produced before the Court then recovery of the articles would not prove commission of the offence either for purpose of Section 3 or section 4 of the Act. ( 23. ) IN the matter of Rakesh Rai {supra}, the facts were that the authorization of warrant under Section 5 of the Act was not proved. From the observations made by the learned Single Judge of this Court, it would clearly appear that all through, it was contended before different Courts that warrant was not issued and it was not proved before the Court. ( 24. ) IN the matter of Ram Bharti {supra}, the Court found that the Investigating officer was not examined and a simple recovery would not connect the accused person with the crime. It was also observed in the said case that though the search warrant was on record but the same has not been proved. In the said case also, the learned Single Judge of this Court observed that in absence of the positive proof, conviction could not be recorded. ( 25. ) IN the present case, PW-4 J. P. Verma stated on oath that he received the credible information that the House No. EWS-16 was in possession of one Rambabu rai and said Rambabu Rai was providing facility to the gamblers to play in the said gaming-house. After recording the said information, he immediately proceeded to the Sub Divisional Officer {police} Shri P. N. Guru and obtained the search warrant. Immediately thereafter, he took the witnesses with him. ( 26. ) IN his cross-examination, it has nowhere been suggested to PW-4 J. P. Verma that the search warrant was not obtained by him or the search warrant was not issued in his favour. The only dispute raised before the Court was that the warrant was in relation to House No. 16 but the witness had taken search of House No. 60 or House No. 369. ( 27. ) PW-4 J. P. Verma in paragraph 5 clearly stated that the warrant was for search of House No. 16 and due to some inadvertence or mistake, House No. 60 was mentioned in the seizure memo. He had also clarified that the very said house was shown to be House No. 369 in the certificate issued by the Municipality. ( 28. ) PRESENT is not a case where nothing has been seized, in fact, present is a case where PW-4 J. P. Verma and PW-3 Alok Shrivastava, yet another Police Officer entered in the house with two other witnesses. ( 28. ) PRESENT is not a case where nothing has been seized, in fact, present is a case where PW-4 J. P. Verma and PW-3 Alok Shrivastava, yet another Police Officer entered in the house with two other witnesses. Simply because the private witnesses have turned hostile, it would not be fair not to rely upon the statements of the departmental witnesses. It is no guarantee that a private witness would always be a witness of truth and the departmental witnesses would not be the witnesses of truth. ( 29. ) IN the present case, PW-1 Chouthmal and PW-2 Kamlesh Trivedi did not support the prosecution case and from their conduct, it would clearly appear that despite admitting their signatures on Exhibit P/2 the seizure memo, they were trying to support the case and cause of the accused. The possibility of winning over the witnesses by the present applicant cannot be ruled out. ( 30. ) PW-1 Chouthmal was a Home Guard {sepoy} while PW-2 Kamlesh Trivedi was an ordinary Tractor Mechanic. The principle that whether a departmental witness is to be relied upon or not, is not based upon any legal principle of law but is based upon the rule of prudence and the time tested principle that a departmental witness is likely to support the prosecution. In any case, if the departmental witnesses are witnesses of truth then on the qualitative analysis of the statements of a departmental witness, the prosecution can rest and ask the Court to convict the accused: ( 31. ) IN the present case, the statements of the private witnesses, namely, PW-1 chouthmal and PW-2 Kamlesh Trivedi, if do not support the case of the prosecution then too the statements of PW-3 Alok Shrivastava and PW-4 J. P. Verma cannot be rejected. They are witnesses of truth and the two Courts below were not unjustified in relying upon them. ( 32. ) SHRI Ramesh Kumar, learned counsel for the applicant though submitted that the departmental witnesses should not be relied upon but was unable to say that if the witnesses are the witnesses of truth then too they are to be ignored. ( 33. ) IN our opinion, the learned Courts below were not unjustified in relying upon pw-3 Alok Shrivastava and PW-4 J. P. Verma. ( 34. ( 33. ) IN our opinion, the learned Courts below were not unjustified in relying upon pw-3 Alok Shrivastava and PW-4 J. P. Verma. ( 34. ) SO far as principles laid down in the case of Nazir Ahmad {supra} are concerned, there can be no dispute but such principles are to be applied looking to the nature of the facts of the case. The character of the evidence produced before the Court and the nature of the allegations in the given case would decide that whether a particular act has been done in accordance with the provisions of law or not. Their Lordships of the Privy Council simply submitted that if a procedure is provided for doing a particular thing then the particular procedure only should be adopted for doing the thing or the act should not be done. ( 35. ) IN the present case, the provisions of Section 5 of the Act have been observed in accordance with law, therefore, it cannot be said that the Courts below were unjustified in recording the conviction. ( 36. ) PLACING reliance upon Sections, 61, 62 and 64 of the Indian Evidence Act, it was contended that if the documents were available with the prosecution and those were not proved by primary evidence then the Court could not rely upon the oral evidence. ( 37. ) ORDINARILY, the principles raised by the learned counsel for the applicant would be universally applicable but in the present case, despite non-production of the document, the non-challenge to the existence of the document would not cut any ice in favour of the applicant. I am unable to hold that the prosecution could not prove issuance of a valid warrant under Section 5 of the Act, search and seizure effected in due execution of the warrant. ( 38. ) FROM the prosecution evidence, I conclude that the prosecution has brought home the charge. The question still would be that whether the applicant could be convicted under Section 3 of the Public Gambling Act, 1867 when there is no evidence on the record that he was owning or keeping or was having charge of a gaming-house and whether this Court should award appropriate punishment to the applicant, who was found gaming in a particular house. ( 39. ( 39. ) AFTER going through the entire evidence, I have no hesitation in agreeing with the learned counsel for the applicant that the applicant could not be convicted under Section 3 of the Public Gambling Act, 1867. In fact, there is no evidence on record that the applicant was owning or keeping or was having charge of a gaminghouse. The First Information Report and the other evidence available on the record clearly show that the allegations of the prosecution were that the house was in charge of one Rambabu Rai, who was deducting commission and was providing facility to the gamblers to enjoy the occupation of the gaming-house. ( 40. ) IN absence of the material evidence to connect the applicant with the requirement of Section 3 of the Public Gambling Act, 1867, I acquit Mm of the charge but, however, uphold the conviction recorded by the Courts below under section 4 of the Public Gambling Act, 1867. ( 41. ) NOW the question of sentence and enhancement. Section 4 of the Act provides that any person, who is found at any gaming-house playing or gaming with cards, shall be liable to a fine not exceeding Rs. 500/- or to imprisonment of either description, as defined in the Indian Penal Code for any term not exceeding four months. ( 42. ) TAKING into consideration the totality of the circumstances and the fact that i am acquitting the accused/applicant of the charges of owning or keeping a gaminghouse, I discharge the notice for enhancement of sentence. However, I award sentence of till rising of the Court to the applicant for committing the offence under Section 4 of the Act. ( 43. ) THE applicant shall appear before the Trial Court on 20th October, 2008 for undergoing the sentence. If he does not appear before the Trial Court for undergoing the sentence the Trial Court shall issue non-bailable warrant against the applicant to secure his attendance for undergoing the sentence. If the accused has deposited fine amount as directed by the Trial Court, the same shall be refunded to him. If he has undergone any sentence awarded to him under Section 3 of the Act, the same shall be given set off in execution of the sentence now awarded to him. Order accordingly.