1) Heard Mr. H.R.A. Choudhury, learned senior counsel, assisted by Mr. J. Islam, learned counsel for the petitioners. Also heard Mr. K. Konwar,
learned Addl. Public Prosecutor for the State.
2) This revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment and order dated
11.11.2011, passed by the learned Sessions Judge, Dhubri in Crl. Appeal No. 12(2)/2009, thereby dismissing the appeal and affirming the judgment and
order dated 08.05.2009, passed by the learned Addl. Chief Judicial Magistrate, Dhubri in CR (GKJ) Case No. 362/2007, thereby convicting the three
petitioners herein under Section 14 read with Section 13 of the Assam Game and Betting Act, 1970 (hereinafter referred to as 1970 Act for short),
and sentencing him to undergo rigourous imprisonment of 6 (six) months and to pay a fine of Rs.1,000/- each, and in default to suffer simple
imprisonment for another period of 2 (two) months.
3) On the basis of confidential information, at 4.00 p.m. on 10.07.2007, the petitioners were caught red-handed with gambling instruments in course of
gambling. Accordingly, an FIR was lodged by the O/c, Golokganj P.S., which was registered as Golokganj P.S. Case No. 362/2007 under Section
13/14 of the aforesaid 1970 Act. In course of trial, the learned trial Court had formulated a point of determination to the effect that â€" “whether
the accused persons were caught red handed while they were playing gambling illegally and some gambling instruments were seized from their
possession, as alleged.†The prosecution had examined 5 witnesses, viz., Ajit Kirtonia (PW-1), Chiken Nath (PW-2), Rabindra Nath Ray (PW-3),
Kamal Chandra Seal (PW-4) and Biswajit Bose, the Investigating Officer of the case (PW-5). PW-1, PW-2 and PW-4 were seizure witnesses, and
they had proved their respective signatures in the seizure list [i.e. Ext.1(1), Ext.1(2) and Ext.2(1)]. While PW-1 and PW-2 were constables, posted in
Golokganj P.S., the PW-4 was the informant who had lodged the FIR. PW-3 was an auto-driver, who had seen the apprehended petitioners being
taken away by the police. PW-4 had also stated in his evidence that Rs.450/- in cash was seized with Ext.2. The PW-5 had visited the spot, prepared
the sketch map and finding sufficient materials against the petitioners, he had submitted charge-sheet against the petitioner.
4) The defence took up the plea of total denial while they were examined under Section 313 of CrPC., and they did not examine any witnesses.
5) The learned trial Court, upon appreciating the evidence on record, held that the witnesses examined by the prosecution have clearly stated about the
involvement of the petitioners in gambling with the seized apparatus and returned a finding to the effect that the witnesses had corroborated each
other on the facts which were relevant to prove the involvement of the petitioners in the offence, having been found betting and in possession of the
betting equipments. The learned trial Court had referred to the provisions of Section 13 of the 1970 Act which provide that any police officer could
apprehend any person found betting or having possession of any instrument or record of betting found on or about a person so apprehended.
Accordingly, the petitioners were held guilty and having declined the benefit of Section 360 CrPC. to the petitioners, they were convicted and
sentenced as already indicated herein before.
6) The aggrieved petitioners had assailed the said judgment and order by filing appeal, which was registered as Crl. Appeal No. 12(2)/2009. The
learned appellate Court, upon hearing the learned counsel for the petitioners as well as the learned P.P. for the State. The learned appellate Court had
mentioned in the impugned judgment that as per seizure list, the petitioners were found in possession of one dabbu made of leather used for gambling,
four numbers of dabbua guti made of plastic having various symbols, one rexine cloth having six different symbols for use in gambling, and cash of
Rs.450/-. The learned appellate Court discarded the argument made on behalf of the petitioners that the complainant should not have seized the
articles and that no independent witnesses were examined, by returning a finding that PW-3, the independent witness of the locality who had been
examined as witness was not even cross examined by the defence and hence, the entire evidence was to be believed and in this regard, the learned
appellate Court had referred to the case of Girdharilal Gupta & Anr. Vs. D.N. Mehta, Assistant Collector of Excise & Anr., AIR 1971 SC 2;8 Public
Prosecutor, Andhra Pradesh Vs. Pokarmal Gupta, AIR 1960 AP 563: 1960 CrLJ 1412; andR am Kumar Vs. State (NCT of Delhi), AIR 1999 SC
2259. The said learned Court was of the further view that the burden lied on the defence to explain about the facts and circumstances, but no defence
evidence was available. Accordingly, the judgment and sentence passed by the learned trial Court was affirmed by dismissing the appeal.
7) The learned counsel for the petitioners has submitted that both the learned Courts below had misread and/or misconstrued the evidence of the PWs
and had arrived at a wrong and unsustainable conclusion, which has vitiated the judgment rendered by both the learned Courts with perversity and in
this regard, he has read out the evidence of all the five PWs examined by the prosecution. It is submitted that the O/c. of the Police Station had lodged
the FIR and he had carried out a part of the investigation by recording the statements of PW-1 and 2 and prepared the sketch-map of the place of
occurrence and then appointed his subordinate as I.O. of the case and that both the O/C. (PW-4) and the I.O. (PW-5) had admitted about the same in
their respective cross examination. It is submitted that the ingredients of offence under Section 13/14 of the 1970 Act was possession of betting/
gaming instrument as well as indulging in the act of betting/ gaming, but in the present case in hand, these two vital ingredients of the alleged offence
was totally absent and missing, for which the conviction of the petitioners was not sustainable on facts and in law. It is also submitted that the police
did not examine independent witnesses although the offence allegedly took place in a very busy market place and that although evidence had disclosed
that independent persons were present, but one of such independent witness was brought to police station and allowed to go without recording his
statement and that only police personnel, who were subordinate to PW-4 i.e. the O/c. were examined as PWs. In support of his submissions, the
learned senior counsel has relied on the following case citations:-
a. Mohan Lal Vs. State of Punjab, AIR 2018 SC 3853;
b. Ganesha Vs. Sharanappa, (2014) 1 SCC 87;
c. Babubhai Vs. State of Gujarat, (2010) 12 SCC 254;
d. Puspa Jamatia Vs. State of Tripura, 2011 (4) GLT 669;
e. Paritosh Paul Vs. State of Assam, 2007 CrLJ 4734.
8) Perused the LCR. It is seen that the PW-1, who is the seizure witness, had stated in his cross examination that 20/25 persons were encircled, but
only 1 person could be apprehended. He had candidly stated that the seized articles were on the ground. Furthermore, he had also stated that he did
not know where Ext.1 was written. The PW-1 was a constable attached to the Golokganj P.S. The PW-2, who was also a seizure witness, had stated
in his cross examination that 40-50 persons were at the place of occurrence but they could apprehend only 3 persons. He could not state what articles
were seized. The said witness had also admitted that the place of occurrence was a market place. The said PW-2 is also a constable attached to
Golokganj P.S. PW-3 is the only independent witness examined by the prosecution, who as per statement made in his examination- in- chief only saw
three persons being put inside the police vehicle and that he does not know why they were apprehended. The said witness was declined to be cross-
examined by the defence. The PW-4 appears to be the star witness examined by the prosecution. He was the O/c. of the Golokganj P.S. In his cross
examination, the PW-4 had clearly stated to the effect that the persons playing had fled away. He had further stated that the seized articles were not
seized from the hands or possession of the petitioners. The said PW had also admitted that one Abdul Mazid was brought to the police station with the
petitioners, but he was allowed to go. The said PW-4 had recorded the statement of PW-1 and PW-2 and had prepared the sketch map and he had
admitted that he did not examine any person in the market. The said statement stands corroborated by the statement of PW-5, the I.O. of the case,
who had stated in his cross examination that he did not record the statement of PW-1 and PW-2 and that he did not prepare the sketch map and he
had also stated that one person was brought with the petitioners but he was released.
9) Thus, the learned senior counsel for the petitioner has been able to successfully demonstrate that vital evidence on record which was of advantage
to the petitioners had been over-looked or ignored by both the learned Courts below. On perusal of the cross- examination of PWs, it is seen that the
evidence of the PWs have either been misread and/or misconstrued by both the learned Courts below. Moreover, it is seen that the learned Courts
below have not made any reference to the statements made by the PWs during their cross- examination. On a perusal of the statements of the 5
(five) PWs as referred herein before, the Court has no hesitation to hold that the defence has been able to demolish the prosecution case. Upon a
perusal of the memorandum of appeal in Crl. Appeal No. 12(2)/2009, it is seen that all the submissions as made by the learned counsel herein were
grounds of appeal, as such, it appears that the learned appellate Court did not examine and/or determine any of the points urged by the petitioners in
the grounds taken in their memorandum of appeal. Accordingly, the only conclusion that can be drawn is that the judgment and order passed by the
learned Courts below suffers from jurisdictional error and that the concurrent finding of guilt against the petitioners- accused is vitiated by perversity
resulting out of non- consideration of statements elicited during cross- examination of all the five PWs examined by the prosecution. Hence, in view of
the vitiation of the concurrent judgment of both the learned Courts below, having been found to be vitiated by perversity, the Court is of the considered
opinion that in exercise of revisional jurisdiction under the CrPC., the High Court has the power and jurisdiction to upset the concurrent factual findings
and resultantly, it is open for the revisional Court to re-analyse and re-interpret the evidence on record.
10) Therefore, in the considered opinion of the Court, the conviction and sentence passed against the petitioners is not found sustainable on facts and
in law. From the cross- examination of the five PWs, it is seen that the essential ingredients of the offence under Section 13 and 14 of the 1970 Act
could not be brought home against the petitioners as the prosecution could not establish that any gaming and betting instruments that were seized was
from possession of the petitioners herein (i.e. accused) and moreover, the defence could demolish the allegation that the petitioners were found
indulging in playing betting or gamming at the time when police raid was conducted at the place of occurrence.
11) Moreover, in the present case in hand, the Officer- in- Charge of the concerned police station had assumed the role of complainant as well as the
investigator, having recorded the statement of PW-1 and PW-2 under Section 161 CrPC., and having prepared the sketch map of the place of
occurrence. In this regard, it is seen that the Supreme Court of India in the case of Mohan Lal (supra) has held that fair investigation, which is the
very foundation of fair trial, necessarily postulates that informant and investigator must not be same person. However, in the present case in hand, the
reverse had happened. Hence, the investigation itself is found to be vitiated as the part of investigation was carried out by the informant.
12) Moreover, as indicated herein before, the PW-1, who was a seizure witness, and present at the place of occurrence, being a part of the police
team conducting search operation, could not state where the seizure list was prepared. Moreover, from the cross-examination of four PWs, the
defence has been able to elicit that the place of occurrence was a market place and that at least one independent person, namely, Abdul Mazid, who
was brought to police station along with the police team and the petitioners, were allowed to go from the police station without being examined and no
other independent witness except PW-3 were examined and that PW-3 did not implicate the petitioners of indulging in the act of playing betting or
gaming with the help of instruments. Thus, in this present case, the fairness of investigation has become questionable. Accordingly, it appears that no
purpose would be served by remanding the matter before the learned Courts below for hearing the matter afresh.
13) It is too well settled that under the provisions of Section 401 CrPC., it is open for the revisional Court to exercise power and jurisdiction akin to an
appellate Court as perversity in the judgment by both the learned Courts below is clearly evident in this case in hand. As a result, this revision is
allowed and resultantly, the judgment and order dated 11.11.2011, passed by the learned Sessions Judge, Dhubri in Crl. Appeal No. 12(2)/2009,
thereby dismissing the appeal and affirming the judgment and order dated 08.05.2009, passed by the learned Addl. Chief Judicial Magistrate, Dhubri in
CR (GKJ) Case No. 362/2007, by which the three petitioners herein were convicted, both stands set aside and the three petitioners, namely, Motior
Rahman, Jahiruddin Sk. And Shafior Rahman are acquitted of all charges in connection with the said case. The Registry shall examine if it is required
by law that a copy of this order be sent to the concerned District Magistrate,, the same shall be communicated.
14) It is also provided that the bail bonds, if any, in respect of the petitioners herein shall remain valid for a further period of three months from today
and thereafter, the bail bonds shall stand discharged.
15) Send back both the LCRs together with a copy of this order for being kept on record.
