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The State Vs. Shambhudayal Dhumansingh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 74 of 1955
Judge
Reported inAIR1957MP17; 1957CriLJ510
ActsMadhya Bharat Gambling Act, 1949 - Sections 5 and 6; Code of Criminal Procedure (CrPC) - Sections 54; Evidence Act, 1872 - Sections 133
AppellantThe State
RespondentShambhudayal Dhumansingh and ors.
Appellant AdvocateJ.D. Patel, Dy. Govt. Adv.
Respondent AdvocateL.S. Shukla, Adv. for Respondents (Nos. 1 & 3)
Excerpt:
.....upon credible information that there are good grounds to believe that it is being used as a gaming house. section 6 is an important section arid reads as follows :6. when any instrument of gaming has been seized in any house, room, tent, enclosure, space, vehicle, vessel or place entered or searched under the provisions of last preceding section, or about the person of anv of those who are found therein and in the case of any other thing so seized, if the court is satisfied that the officer who entered or searched such house, room, tent, enclosure, space, vehicle, vessel, or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaining, the seizure of such instrument or thing shall be evidence, until the contrary be made to appear, that such..........was raided by the police officer and in which gaming is alleged to have taken place. from his shop articles a, b, c, d & e were seized. the prosecution have contended that the evidence on record is sufficient to find him guilty both under sections 3 and 4 of the madhya bharat gambling act. 9. under section 2 (f) of the madhya bharat gambling act the word 'gaming house' is defined. it means any house, room, tent, enclosure, space, vehicle, vessel or any place whatsoever in which gaming takes place or in which instruments of gaming are kept or used for gaming. 10. keeping a gaming house is an offence punishable under section 3. under section 4 a person found in a gaming house gaming or present for the purpose of gaming is also liable to be convicted and punished. 11. section 5.....
Judgment:

Samvatsar, J.

1. This is an appeal filed by the State against an order of acquittal passed by the Municipal Magistrate, Indore, acquitting the three respondents who were prosecuted for olfence under Sections 3 & 4 of the Madhya Bharat Gambling Act.

2. On 27-1-1934 Mr. Mahajan, the Sub-Inspector Incharge Malharganj Police Station, received credible information that gambling in American Futures was carried on in the shop of respondent No. 1 Shambhudayal. He thereupon called one Azizulrehman and gave him a one-rupee note for offering a bet on figures '3' and '7'. Puncha-(sic) of delivery of the note to Azizulrehman was drawn up in which the number of the one-rupee note is mentioned. The Panchanama is produced in this case as P/1.

3. As instructed by the police officer, Mr. Mahajan, Azizulrchman went to the shop of respondent No. 1 and offered six annas as bet on the figure of '3' and six annas as bet on the figure of '7' and delivered the one-rupee note to respondent No. 1. The note was accepted by respondent No. 1 and it is alleged that as instructed by him, respondent No. 2 who was his Munim, recorded the bet on a piece of paper on which other bets are also alleged to have been recorded. Azizulrehman then gave a signal and the police officer and the Puncha reached the place. They searched the shop of respondent No. 1 Shambhudayal and recovered in the search the one-rupee note article A and certain Panas or lists produced in this case as Articles B, C, D & E. A Panchanama of this recovery was also drawn up and is produced in this case as Ex. P/2.

4. At the time of the raitl besides respondent No. I the respondent No. 2 Surajmal and respon-dent No. 3 Mitthulal were also present. All these persons were put up for trial under Ss, 3 and 4 of the Madliya Bharat Gambling Act. The evidence of the prosecution and the defence was recorded and at the conclusion of the trial the learned Magistrate found (he respondents not guilty and acquitted them. Aggrieved by this acquittal the State has pre-forced this appeal under Section 417, Criminal Procedure Code.

5. The material evidence iu the case consists of the statements of Azizulrehman, the Punter, Prahladdas the. Puncha witness and Mr. Mahajan, the Sub-Inspector who investigated the offence.

(After discussing the evidence His Lordship proceeded further.)

6. From the evidence of Azizulrelnnan and the other two prosecution witnesses it appears that the respondent Shambhuduyal is owner of the shop which was raided by the police officer Mr. Mahajan. Respondent No. 2 is his Munim and respondent No. 3 is a domestic servant who is employed for the purpose of offering water to thirsty persons who go there to drink it. It is not suggested that respondent No. 3 is in any manner connected with the business of respondent No. 1 or his activities.

Respondent No. 2 Surajmal is the Munim of the shop and his presence there at the material time is easily understandable. It is stated on behalf of the prosecution that it was he who recorded the bet on behalf of respondent No. 1 but there is nothing to establish this fact except the statement of the Punter Azizulrehman. There is some evidence to suggest that Pana Article C was, seized from his hand but the evidence on this point is not consistent and benefit of doubt must go to him.

7. Under the circumstances I am of opinion that there is no satisfactory evidence to hold that respondents 2 and 3 were present at the material time in the shop for the purpose of gaming.

8. The case of respondent No. 1 however stands on a different footing. He is the owner of the shop which was raided by the police officer and in which gaming is alleged to have taken place. From his shop Articles A, B, C, D & E were seized. The prosecution have contended that the evidence on record is sufficient to find him guilty both under Sections 3 and 4 of the Madhya Bharat Gambling Act.

9. Under Section 2 (f) of the Madhya Bharat Gambling Act the word 'gaming house' is defined. It means any house, room, tent, enclosure, space, vehicle, vessel or any place whatsoever in which gaming takes place or in which instruments of gaming are kept or used for gaming.

10. Keeping a gaming house is an offence punishable under Section 3. Under Section 4 a person found in a gaming house gaming or present for the purpose of gaming is also liable to be convicted and punished.

11. Section 5 empowers a District Magistrate, any Sub-Divisional Magistrate or any police officer not below the rank of a Sub-Inspector, to enter any house, room, tent, cnciousre, space, vehicle, vessel or place if he is satisfied upon credible information that there are good grounds to believe that it is being used as a gaming house.

12. Section 6 then enables the Court to raise a presumption as regards the persons found in such a house, room or place at the time of the raid and also as regards the articles seized in the search in such a raid. Section 6 is an important section arid reads as follows :

'6. When any instrument of gaming has been seized in any house, room, tent, enclosure, space, vehicle, vessel or place entered or searched under the provisions of last preceding section, or about the person of anv of those who are found therein and in the case of any other thing so seized, if the Court is satisfied that the officer who entered or searched such house, room, tent, enclosure, space, vehicle, vessel, or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaining, the seizure of such instrument or thing shall be evidence, until the contrary be made to appear, that such house, tent, enclosure, space, vehicle, vessel or place is used as a gaming house and that the persons found therein were there present for the purpose of gaming although no gaming was actually seen by the Magistrate or police officer.'

13. It appears from a careful reading of this Section that it is intended to enable the Court to raise a presumption in respect of the place raided and the person or persons found therein at the time of the raid. When instruments of gaming have been seized from a house, room, tent, enclosure, spaee, vehicle, vessel or any place whatsoever, entered by a District Magistrate, Sub-Divisional Magistrate, or a police officer under Section 5 or about the person of any one present therein, it is presumed, until the contrary is proved, that such house, room, tent, enclosure, space, vehicle, vessel or any place is used as a gaming house and that the persons found therein were present there for the purpose of gaming. Even if the articles seized in the raid are not proved to be instruments of gaming, a similar presumption would arise if the Court is satisfied that the officer concerned had reasonable grounds to suspect that the articles seized by him were instruments of gaming.

14. For drawing a presumption under Section 6 of the Gambling Act, it is then not necessary to prove that the articles seized were instruments of gaming. It is sufficient if the Court is satisfied having regard to the circumstances of the case, that there are reasonable grounds for suspecting that the articles seized are instruments of gaming.

15. In the present case the police officer Mr. Mahajan raided the shop of the respondent and searched it. He has stated in his examination-in-chief that he arranged the raid because he had received credible information that gaming in American. Futures is carried on in the shop of the respondent every day at night. The witness has explained how gaming in American Futures is a game of chance and he has not been shaken in cross-examination on either of these points.

16. By credible information is not meant information which is in fact true. The words 'credible information' used in Section 5 of the Gambling Act have the same meaning as is given to them in Section 54 of the Criminal Procedure Code and include any infor-mation which in the judgment of the officer to whom it is given, appears entitled to credit in the particular instance. It has reference to the mental condition of the person receiving the information Mr. Mahajan, the police officer, received information that gaming in American Futures was carried on in the shop of the respondent, believed it to he credible and laid a trap against respondent No. 1, the owner of the shop.

17. After the bet was offered by Azizulrehman and accepted by the respondent No. 1 and on receiving the prescribed signal, the police officer raided the shop and in the search that followed, seized the one-rupee note Article A and Panas Articles B, C, D & E. The Pana Article C contains the name of the punter Azizulrehman and the figures of '3' and '7' against each of which is mentioned the figure of six annas. Articles B, D. & E are stated to be betting slips containing an account of the gambling transactiuns earned on in the shop of the respondent No. 1. According to the evidence of Azizulrehman, the punter, and that of Mr. Maha-jan, the articles seized in the search were instruments of gaming.

18. The Articles B, C, D & E on the face appear to be record of the betting transactions. The last entry in Article C is in me name oi Azizul-rehman and is record of the bet alleged to have been offered by him. From this evidence I am satisfied that the Articles A, B, C, D, & E are instruments of gaming and the house in which these articles were found is a gaming house.

19. Even if it is assumed that Articles A, B, C, D & E are not strictly proved to be instruments of gaming, a perusal ot the documents B, C, D & E leaves no doubt in my mind that the police officer Mr. Mahajan who seized them had reasonable grounds for suspecting that they were instrument of gaming. Under the circumstances a seizure of these articles would be sufficient to presume that the place in which they were found, namely, the shop of respondent No. f, was a gaming house and that the respondent No. i was present there for the purpose of gaming.

20. Apart from this, there is direct evidence to show that respondent No. f was found in the act of gaming and that the articles seized were instruments oi gaming.

21. This evidence was attacked on the ground that the punter Azizulrehman was a police witness and generally it is regarded unsafe to rely upon such a witness. In my opinion it is not correct to say that the evidence of the punter should be rejected under all circumstances. All that can be said is that his evidence should be accepted with caution. If the punter's evidence is corroborated by other evidence on record, it can be saiely used to convict an accused person.

22. In the present case the punter is corroborated not only by the oral evidence of the Punch witness Prahkuidas and the Sub-Inspector Mr. Mahajan, but he is also supported by the recovery of the note Article A and the Panas or betting slips Articles B, C, D & E., The note Article A bears the same number which is mentioned as the number of the note delivered to Azizulrehman by the police officer in Ex. P/1. Then there is the Pana Article C. There are several entries on this Pana made in pencil and the last entry contains the name of Azizulrehman and below it the figures '3' and '7' and the figure of As. -/6/- mentioned against each of these figures. The other Panas are also alleged to be betting slips containing an account of the money received and payments made on account of gaming in American Futures.

23. The note Article A and the slips Articles B, C, D & E are proved to have been recovered from the shop during the search made immediately after the punter had offered the bet and given the one-rupee note to the respondent No. ]. The respondent No. 1 himself has not disputed the recovery of these articles from his shop. His explanation as regards the presence of the note is that it was given to him by the punter Azizulrehman in charity and as contribution to his Anna-Chhatra (feeding house).

As regards the Panas, he has stated that they wera dropped or thrown in the shop by Azizulrehman just about the time the police officer arrived there. The respondent has examined as many as three witnesses to bear out this defence. These witnesses are (1) Gambhirmai, (2) Kauicb.uno.ra, and (3) Prakash.

24. Gamuhirmal appears to be a casual witness. He has stated tnut nc naa gone to the shop of the respondent to drink water and white he was druinking water, ne heard the respondent bhambhu-dayal saying to someone tnere, 'You have left your paper here'. This witness has stated that the respondent maintains an Anna-Chhatra and tnere is an arrangement tor drinking water. In his cross-examination he has stated that the respondent dues not maintain an account of the charity and there is a bag kept there in order that people may drop their contribution in it.

25. The witness Ramchandra has his shop in the neighbourhood of respondent No. 1. lie has only slated that the respondent No. 1 maintains a charitable institution. The last witness Prakash also has ins snap in the neighbourhood. He has stated that he heard the respondent saying to someone ''Your papers have fallen down.'

26. The defence evidence is extremely vague. The witnesses do not say anything about the raid and the presence of the police officer and it is not suggested that the respondent protested in the presence of the police officer that the betting slips Articles B, C, D & E were planted by Azizulrehman. It is also significant to note that this aspect of the case ot the defence was not put forward or disclosed in the cross-examination of Azizulrehman or any of the prosecution witnesses. The defence evidence and the explanation given by the respondent to explain the presence of the Articles A, B, C, D & E cannot therefore be believed. The evidence of the punter Azizulrehman is substantially corroborated by the recovery of the Articles A, B, C, D & E as also by the oral evidence of Prahladdas and Mr. Muhajan and can therefore safely be relied upon.

27. The leamed Magistrate has attached no importance to the presence of the Panas Articles B, C, D & E nor has he considered the provisions of Section 5 or Section 6 of the Gambling Act and the inferences arising therefrom. The finding of the learned Magistrate is under the circumstances defective and cannot be held to be conclusive or binding on this 'Court.

28. From the evidence on record I am satisfied that the respondent No. 1 Shambhudayal is guilty both under Section 3 and Section 4 of the Gambling Act and deserves to be convicted.

29. I therefore set aside the order of the Magistrate, find the respondent Shambhudayal guilty and convict him both under Sections 3 and 4 of the Madhya Bharat Gambling Act. The respondent is sentenced to suffer simple imprisonment for one month on each of the two counts. The sentences to run con-currently.

Nevaskar, J.

30. I agree.


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