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Kanubhai Prabhudas and anr. Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR733
AppellantKanubhai Prabhudas and anr.
RespondentThe State of Gujarat
Cases ReferredBibhabati v. Ramendra Narayan A.I.R.
Excerpt:
- - a charge of gambling like any other criminal charge must be proved by the prosecution by proper evidence and one cannot fail to note that a false charge of gambling is one very easy to frame. i have said in a great many of these cases that these police agents are not only accomplices but are also unreliable witnesses because they are generally paid by results. ..it may be that under that section a police officer might give evidence that he had had a long experience amongst people who indulged in satta gambling in a particular district and from that experience supported by instances which he should be prepared to give so as to establish his means of knowledge, he was satisfied that a system or code prevailed among such persons and he might then express an opinion (which would be..........gave a bet to another accused. the p.s.i. deposed that he heard one of the accused utter the words bombay 8 when he gave the two rupee note to the other accused. he was supported by the panch. the evidence of these two witnesses was accepted and the two applicants were convicted under section 12(a) of the gambling act.in revision it is contended: (1) that there is no corroboration to the evidence of the p.s.i. and the evidence of the panch and reliance is placed on emperor v. harilal gordhan 39 bom. l.r. 613 for the proposition that in gambling cases corroboration is necessary; (2) that this evidence is not admissible either under section 45 or section 49 of the evidence act; (3) that the question of admissibility under section 49 of the evidence act does not arise in this case as.....
Judgment:

V.B. Raju, J.

1. The two petitioners in this criminal revision application were convicted under Section12 of the Bombay Prevention of Gambling Act. The prosecution case was that on 17-10-61 at about 8-30 P.M. one of them gave a two rupee note to the other and gave a bet of American Futures on the figure of 8. The prosecution led the evidence of the P.S.I. and a Panch witness but they did not produce any slip. A two rupee note however was found with one of the applicants. It was not a marked currency note as according to the prosecution one of the accused gave a bet to another accused. The P.S.I. deposed that he heard one of the accused utter the words Bombay 8 when he gave the two rupee note to the other accused. He was supported by the Panch. The evidence of these two witnesses was accepted and the two applicants were convicted under Section 12(a) of the Gambling Act.

In revision it is contended: (1) that there is no corroboration to the evidence of the P.S.I. and the evidence of the Panch and reliance is placed on Emperor v. Harilal Gordhan 39 Bom. L.R. 613 for the proposition that in gambling cases corroboration is necessary; (2) that this evidence is not admissible either under Section 45 or Section 49 of the Evidence Act; (3) that the question of admissibility under Section 49 of the Evidence Act does not arise in this case as the Court has not to form an opinion as to the meaning of the words Bombay 8 but it is for the prosecution to prove the meaning of the expression Bombay 8 so as to make out a case of gambling against the accused; (4) that the P.S.I. has not deposed that he has special means of knowledge as to the meaning of the words Bombay 8 and that in any case he cannot give evidence that the words Bombay 8 mean that if the figure 8 is found to be the correct figure the person betting will get Rs. 16/- or eight times the amount of bet; and (5) that no question has been put to the accused under Section 342 as to whether the words Bombay 8 have the meaning given to them by the P.S.I.

In 39 Bom. L.R. 613 Sir John Beaumont C.J. observed as follows:

A charge of gambling like any other criminal charge must be proved by the prosecution by proper evidence and one cannot fail to note that a false charge of gambling is one very easy to frame. I have said in a great many of these cases that these police agents are not only accomplices but are also unreliable witnesses because they are generally paid by results. It is always in their interest to secure a conviction in the hope of getting a part of the fine which may be imposed. The evidence of a police agent in these cases must always be corroborated before it can be acted upon. I do not think that the case is improved by providing the police agent with a companion and calling him a panch as was done in this case. The finding of the marked currency note is not by itself sufficient to justify the convictions....

It may be that under that section a police officer might give evidence that he had had a long experience amongst people who indulged in satta gambling in a particular district and from that experience supported by instances which he should be prepared to give so as to establish his means of knowledge, he was satisfied that a system or code prevailed among such persons and he might then express an opinion (which would be relevant under the action) that the slips in question were prepared in accordance with that system or code and had a certain meaning.

The following observations in Emperor v. Hormasdyar Irani 50 Bom. L.R. 163 have been relied on by the learned Government Pleader in support of his contention that the above view is not correct:

The Government Pleader objected that such a construction reduced the section to a nullity; and he contended that what the section really meant was that where there was found in a raid an instrument of gaming or something which in the Courts opinion was reasonably suspected to be an instrument of gaming though it could not be definitely proved to be so then the presumption arose and the burden was thrown upon the accused to prove that the suspected thing was not an instrument of gaming. The learned Chief Justice conceded that that would be a reasonable construction to put upon the section if the language so permitted. But as in construing a section of a penal Act which cast upon the accused the burden of proving his innocence the Court must act strictly it seemed to him impossible reading the language of the section according to its ordinary and natural meaning to give to the section the meaning for which the learned Government Pleader contended. He therefore rejected the laters contention. It seems to us however that the construction sought to be put on the section by the Government Pleader is the right construction: it is hardly possible that the legislature intended to enact a merely nullity by providing the terms of the second part of the section.

The learned Government Pleader also relies on the State v. jayantilal Govinddas 54 Bom. L.R. 790 and particularly the following observations at p. 792:

In other words the learned Chief Justice came to the conclusion that on the evidence as it stood it was not proved that the slips were satta slips. Now there is no doubt that the above mentioned observations in Emperor v. Harilal were modified by this Court in its decision in Emperor v. Hormasdyar Irani 50 Bom. L.R. 163 in which it was pointed out that for drawing a presumption under Section 7 of the Bombay Prevention of Gambling Act it was not necessary that the things seized must be proved to be instruments of gaming. It was pointed out that it would be sufficient if there were reasonable grounds in the particular circumstances of each case for suspecting that the things seized were instruments of gaming. To that extent clearly therefore the observations which were made by the learned Chief Justice in Emperor v. Harilal were modified in the later decision of this Court.

But it is not necessary in this case to refer to this conflict of views because those cases refer to Sections 5 and 7 of the Gambling Act whereas the instant case is one under Section 12 and not under Sections 4 and 5 of the Gambling Act. It is true that in certain cases falling under Section 12 of the Gambling Act punishment prescribed is that referred to in Section 4 of the Gambling Act. But in this case it is not necessary to discuss the conflict of views referred to above expressed in cases which were under Sections 5 and 7 of the Gambling Act.

2. It is contended by the Learned Counsel for the applicants that a general principle has been laid down in 39 Bom. L.R. 613 that in all gambling cases corroboration is necessary and the Panch is always to be treated as a police agent. The observations of Sir John Beaumont have been quoted above. One of the main grounds given by Sir John Beaumont for treating Panch as police agents is stated thus: It is always in their interest to secure a conviction in the hope of getting a part of the fine which may be imposed. Apparently he was referring to the provision of Section 11 of the Bombay Prevention of Gambling Act which reads as follows:

The Magistrate Trying any case under the provisions of Sections 4 and 5 may direct any portion not exceeding one-fourth of any fine which may be levied under either of the said sections or any part of the proceeds of articles or money seized and ordered to be forfeited under Section 8 to be sent in any area for which a Commissioner of police has been appointed to the Commissioner of Police and elseWhere to the District Superintendent of Police for distribution as reward in such manner as he may think proper among the persons who may have given assistance in the detection or investigation of the offence.

3. But this section applies only to prosecutions under Sections 4 and 5 of the Gambling Act and not under Section 12 of the Gambling Act. The case before Sir John Beaumont C.J. was one under Sections 4 and 5 of the Gambling Act and not under Section 12 of the Gambling Act. His Lordship Sir John Beaumont C.J. was not laying down the law with respect to prosecutions under Section 12 of the Gambling Act but he was only making observations with respect to the evidence of a punter in a prosecution under Sections 4 and 5 of the Gambling Act. The reason given by Sir John Beaumont for observing that corroboration is necessary to the evidence of a punter in a prosecution under Sections 4 and 5 of the Gambling Act does not apply to a prosecution under Section 12 of the Gambling Act because Section 11 of the Gambling Act does not apply to a prosecution under Section 12 of the Gambling Act. In a prosecution under Section 12 of the Gambling Act punters would have no hope of getting rewards which they would have in a prosecution under Sections 4 and 5 of the Gambling Act.

The Learned Counsel for the applicants however relies on a judgment- of my learned brother Justice Bhagwati in Criminal Appeal No. 110 of 1962 No doubt that was a case under Section 12(a) of the Gambling Act. His Lordship Bhagwati J. observed as follows:

The offence charged against the appellant consisted of gaming in a public street and it was therefore necessary for the prosecution in order to bring home the guilt against the appellant to show that the appellant was found gaming in a public street. The gaming according to the prosecution consisted of laying a bet on Bombay 4 and the prosecution therefore led the evidence of the punter to prove that a bet on Bombay 4 was laid with the appellant. Now it is indisputable that a punter is a police agent and it would be unsafe to act on the uncorroborated testimony of the punter. The Court should always insist on corroboration of the testimony of the punter so as to ensure that the testimony of the punter can be treated as reliable. This principle is so well-settled that 1 need not cite any authorities in support of it beyond referring to the decision of a Division Bench of the High Court of Bombay in Emperor v. Harilal (XXXIX Bombay Law Reporter 613) where Beaumont C J. delivering the judgment of the Court made the following observations:

These gambling cases no doubt present difficulties. People who indulge in gambling naturally endeavour to conceal the true nature of their operations and it is difficult for the police to prove their case. But at the same time a charge of gambling like any other criminal charge must be proved by the prosecution by proper evidence and one cannot fail to note that a false charge of gambling is one very easy to frame 1 have said in a great many of these cases that these police agents are not only accomplices but are also unreliable witnesses because they are generally paid by results It is always in their interest to secure a conviction in the hope of getting a part of the fine which may be imposed. The evidence of a police agent in these cases must always be corroborated before it can be acted upon. 1 do not think that the case is improved by providing the police agent with a companion and calling him a panch as was done in this case. The finding of the marked currency note is not by itself sufficient to justify the corroboration.

Of course what corroboration is sufficient to justify reliance on the testimony of the punter must depend on the facts of each case. But what is necessary is that there should be corroboration of such a nature as to inspire confidence in the testimony of the punter. It was therefore necessary for the prosecution to produce evidence corroborating the testimony of the punter in regard to this material particular namely the laying of the bet.

His Lordship Bhagwati J. relied on 39 Bom. L.R. 613. As pointed out by me that was a case under Sections 4 and 5 of the Gambling Act and not under Section 12 of the said Act and for the reasons given by me it would not be quite correct to apply the principles of corroboration enunciated in 39 Bombay Law Reporter 613 which was a case under Sections 4 and 5 of the Gambling Act to cases under Section 12 of the Gambling Act.

4. Of course the evidence of a Panch in cases under Section 12 of the Gambling Act is to be appreciated in the ordinary manner and after giving good reasons it is open to a Magistrate or a Sessions Judge to reject the evidence of the punter. But in this case the Magistrate has given detailed reasons for accepting the evidence of the Panch and in revision 1 am not prepared to interfere with that finding.

It is true that in this case there is no other corroboration because the police party made a raid before the accused had time to prepare a slip. This is also not a case of a marked currency note and even in the case of the marked currency note it is difficult to hold that a currency note whether marked or not is an incriminating circumstance. But for the reasons already given it is not necessary in law to have corroboration to the evidence of the P.S.I, and the Panch witnesses in a prosecution under Section 12 of the Gambling Act.

It is next contended that there is no evidence to show that the words Bombay 8 which according to the P.S.I, and the Panch witnesses were heard as uttered by one of the accused to the other accused at the time when a two rupee currency note changed hands. As observed by Sir John Beaumont gambling is not a science or art and if it is not a science or art Section 45 of the Evidence Act would not apply. In any case the meaning of the words Bombay 8 would not be a point covered by Section 45 of the Evidence Act. But Section 49 of the Evidence Act reads as follows:

When the Court has to form an opinion as to the usage and tenets of anybody of men or family the constitution and government of any religious or charitable foundation or

the meaning of words or terms used in particular districts or by particular classes of people

the opinion of persons having special means of knowledge thereon are relevant facts.

As observed by Sir John Beaumont C.J. in 39 Bom. L.R. 613 a police officer can give evidence under Section 49 of the Evidence Act provided he has special means of knowledge as to the meaning of words or terms used in a particular district or by a particular class of people. The P.S.I: has given his profession as P.S.I. Prohibition and Gambling Ahmedabad City and has deposed as follows:

Figure 8 indicates the last figure of closing rate of American Cotton Future rate. In this case accused would receive Rs. 16/- for a bet of Rs. 2/- if the figure 8 comes true. The rate i.e. the closing rate of American Cotton Futures will appear in the paper of the next day. This is the common mode of giving bet amongst gamblers. The accused No. 2 at that time did not ask rate of Bombay 8 to accused No. 1. The rate of payment may change by about 1 per cent from gambler to gambler. It is not true that one never lays bet with- out asking rate. It is not true that necessarily bet is always recorded and only if bet in recorded in writing payment is made. Accuse No. 1 did not ask name of accused No. 2 because we carried out raid immediately

5. It is contended by the Learned Counsel for the applicants that the witness who gives evidence under Section 49 of the Evidence Act must himself say in chief-examination that he has special means of knowledge as to the meaning of words or terms used in a particular district or by a particular class of people. The expression special means of knowledge does not necessarily mean that the person giving evidence should himself engage in a particular business or that he himself should be a member of a particular class of people. It is sufficient that he has special means of knowledge regarding the meaning of words or terms used in a particular district or by a particular class of people. The P.S.I. has stated in cross-examination that this is a common mode of giving a bet amongst gamblers. For the purpose of Section 49 of the Evidence Act gamblers would be a class of people It is true that the P.S.I. has not mentioned that he has special means of knowledge or how he acquired special means of knowledge. But he is a P.S.I. of Prohibition and Gambling Ahmedabad City. The very fact that he is a P.S.I. of Prohibition and Gambling would make him qualified under Section 49 of the Evidence Act unless it is brought out in the cross-examination that no value should be attached to his evidence. In such a case it is open to the accused to show in cross-examination that the evidence given by the witness is of no value or of little value.

It is next contended that in a case like this the Court is not to form an opinion but it is the prosecution that has to prove its case. The words when the Court has to form an opinion have been used in Sections 45 47 48 and 49 of the Evidence Act In order to decide whether the prosecution has proved its case when the prosecution relies for the proof of its case upon certain words said to have been used by an accused person the Court has to form an opinion as to the meaning of those words. This contention is therefore rejected.

It is also contended by the Learned Counsel for the applicants that Section 49 of the Evidence Act does not apply when code words are used and he contends that according to the prosecution itself the words Bombay 8 are code words to convey certain meaning. This contention cannot be accepted because when a particular class of people may use a code word the meaning of the code word is a matter on which the Court has to form an opinion. This contention is therefore rejected.

The Learned Counsel for the applicants also relies on the following observations of Sir John Beaumont C.J. on 39 Bom. L.R. 613:

It may be that under that section a police officer might give evidence that he had had a long experience amongst people who indulged in satta gambling in a particular district and from that experience supported by instances which he should be prepared to give as to establish his means of knowledge he was satisfied that a system or code prevailed among such persons and he might then express an opinion (which would be relevant under the section) that the slips in question were prepared in accordance with that system or code and had a certain meaning.

6. His Lordship Sir John Beaumont did not observe that a police officer must do these things and must in chief-examination give the instances and give details of his experience in cross-examination. If he is asked to do so he must do so. The value to be attached to his evidence' would depend on answers to such questions and other questions.

The Learned Counsel for the applicants relies on Harakchand v. State A.I.R. 1954 Madhya Bharat 145 where it has been observed as under:

As an opinion evidence the evidence of a Sub Inspector that particular words used in a slip were code-words for particular figures cannot be received under Section 45 Evidence Act as the Court is not called upon to form an opinion on the point of Foreign Law science art or as to identity of hand-writing nor can it be received under Section 49 as the Sub-Inspector did not claim to be en expert having special knowledge of the meaning of the words used in recording trans- actions in American futures.

In this case it was merely observed that such evidence was not admissible under Section 49 of the Evidence Act as the Sub-Inspector did not claim to be an expert having special knowledge of the meaning of the words used in recording transactions in American futures. In the in that case although the P.S.I. did not in his examination in chief mention that he was an expert he stated in the beginning that he was a P.S.I. in charge of Prohibition and Gambling. In my opinion it would be reasonable for the Court to presume that the P.S.I. in charge of gambling in Ahmedabad City has special means of knowledge regarding the words used by the gamblers. As observed by their Lordships of the Privy Council in Bibhabati v. Ramendra Narayan A.I.R. 1947 P.C. 19 reference can be made to Section 114 of the Evidence Act to make certain evidence relevant.

It is next contended that there is no evidence to show that the use of the words Bombay 8 amount to a bet. I have already quoted from the evidence of the P.S.I. He has deposed as follows:

Figure 8 indicates the last figure of closing rate of American Cotton Future rate. In this case accused would receive Rs. 16/- for a bet of Rs. 2/- if the figure 8 comes true.

It is therefore clear that according to the P.S.I the words Bombay 8 would mean that if the closing rate figure 8 came to be correct the person betting would receive Rs. 16/- for a bet of Rs. 2/-. He has also stated that the closing rate of American Cotton futures would appear in the papers of the next day. It is therefore clear that according to the P.S.I. in a particular class of people namely the gamblers the words Bombay 8 have a special meaning. The contention of the Learned Counsel for the applicants is therefore rejected.

It is next contended that the provisions of Section 342 Criminal Procedure Code have not been complied with and no question has been put to the accused regarding the meaning of the words Bombay 8. Section 342(1) reads as follows:

For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court may at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considers necessary and shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

7. The object of enacting Section 342 Cr. P.C. is only to enable the accused explain any circumstances appearing in the evidence against him. It is only if there is circumstantial evidence against him that Section 342 of the Cri. Pro. Code is to be applied. In this particular case it is not the prosecution case that there is any circumstantial evidence against the accused. If all the evidence against an accused person is direct evidence there is very little in Section 342 Cri. P.C. which would apply to such a case. In such a case it is not for the accused person to give any explanation. The defence that the prosecution case is false is quite enough The questions put to the accused in their examination and the answers given by them are as follows:

Q: It is deposed by complainant P.S.I. Shri Dechgamiyan and witness Indrajitsing that on 11-10-61 in public street at Raipur you accused No. 2 gave a bet of Rs. 2/- on Bombay 8 being satta betting in American Futures to accused No. 1 and that you accused No. 1 accepted the bet of Rs. 2/- given by accused No. 2. What have you to say?

Ans:

Accused No. 1: I have been falsely implicated in this case while I was going to my bungalow.

Accused No. 2: l am falsely implicated while I was going from my house at Khas Bazaar.

The accused having denied that the words Bombay 8 were used by one of them while talking to the other there is nothing in Section 342 Criminal Procedure Code to be applied to the facts of the case. The contention is therefore rejected. In the result there is no reason to interfere with the convictions of the applicants and the sentences passed upon them. The revision application is dismissed.


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