Afsar Khan vs The State Of Madhya Pradesh
2023 Latest Caselaw 17686 MP

                                   1
 IN     THE       HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                    ON THE 25 th OF OCTOBER, 2023
                 CRIMINAL REVISION No. 887 of 2006

BETWEEN:-
AFSAR KHAN S/O RASHEED MOHAMMAD, AGED
ABOUT 35 YEARS, R/O TAJ COLONY, NAYA MOHALLA,
DISTRICT CHHATARPUR (MADHYA PRADESH)

                                                                .....APPLICANT
(BY SHRI B. J. CHOURASIA - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH

                                                              .....RESPONDENT
(BY SHRI P. CHATTERJEE - PANEL LAWYER)

      Heard on          : 12.10.2023
      Pronounced on : 25.10.2023

      This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
                                    ORDER

This criminal revision has been preferred against the judgment passed on 24.5.2006 by Sessions Judge, Chhatarpur, in Criminal Appeal No.80/2005. By this judgment, the appeal preferred by applicant against his conviction and sentence passed in Criminal Case No.323/2005 on 28.6.2005 by Judicial Magistrate First Class, Chhatarpur, for holding him guilty for the offence of 4-A of Public Gambling Act and sentencing him to one month rigorous imprisonment, fine of Rs.200/- with a default clause to undergo ten days

imprisonment and confiscation of Rs.14,500/- was dismissed and his conviction as well as sentence were upheld.

2 . Brief facts of the prosecution case are that the Thana Prabhari of Police Station Civil Lines, Chhatarpur, raided the spot upon receiving the information of "satta" being played there and in this raid applicant was nabbed with "satta" chits; there were numbers written on those chits; a mobile phone and an amount of Rs.14,500/- received for "satta" booking were recovered upon the search of applicant; he was arrested on spot and on return to the police station, a crime was registered at Crime No.269/2004. The charge-sheet was filed after the investigation was complete and upon conclusion of trial

applicant was convicted under Section 4-A of Public Gambling Act and was sentenced. Appeal filed against it was dismissed by the impugned judgment.

3. The grounds raised in this criminal revision are that the prosecution story is a total farce; applicant was never found in possession of any "satta parchi" or any item related to that offence; he was forced by police to sign some documents; the prosecution story was not supported by independent witnesses; seizure memo and other documents disclose that the crime number was written thereon while it was registered later. The courts below failed to appreciate this material discrepancy. Further, not a single witness supported the prosecution case while the place of incident was a busy market having sufficient crowd and still no one came forward to support the prosecution story. There were material contradictions in the evidence submitted by the prosecution. Therefore, it is prayed that this criminal revision be allowed and the applicant be acquitted in the matter.

4. State has opposed this criminal revision on the ground that there is no perversity or illegality in the impugned judgment.

5. Arguments of both the parties have been heard and records of both the courts below have been perused.

6. The FIR registered in this case is marked as Ex.P-4, which suggests that upon information received from the informant, Thana Prabhari of Police Station Civil Lines, Chhatarpur, namely Tehzeeb Qazi, left for the designated spot along with police force after making entry in the Rojnamcha Sanha. It is interesting to note that the entry made in Rojnamcha Sanha has not been produced in evidence, while that would have been a relevant document. FIR further reveals that the information was that applicant was making the people to bet upon numbers by booking their money and for this, he was using "satta" chits. The statements of Harprasad Awasthy (P.W.2), Hariram (P.W.3) and Tehzeeb Qazi (P.W.4) reveal that when they reached the spot, no other person was found that would be involved in betting.

7. According to FIR, the applicant was nabbed when he tried to run away on seeing the police party and from his possession, a mobile phone, a dot pen, an amount of Rs.14,500/- and a "satta" chit were seized. Ex.P-1 is the seizure memo that was prepared on the date of incident i.e. 2.9.2004 at 10:00 p.m. Significantly, the FIR of this case was registered on 2.9.2004 at around 23:10 p.m. It is an established procedure that only at the time of registering the FIR, the crime number is generated. In the present case also, the crime number

269/2004 obviously came into existence only after registration of FIR. Investigating Officer Tehzeeb Qazi (P.W.4) was cross-examined to explain how this crime number was mentioned in the seizure memo, which was prepared about an hour before the registration of FIR. Similar is the status of arrest memo which mentions Crime No.269/2004 while it was prepared on 2.9.2004 at

22:10 p.m. 8 . Tehzeeb Qazi (P.W.4), when asked to explain this material discrepancy, replied that he was in the city, therefore, he contacted Police Station, Civil Lines, on wireless and asked the authority there to give the crime number and then alone, he mentioned the crime number on these two documents. This explanation is not at all acceptable. It is not reasonably possible that before making an entry in the Rojnamcha Sanha and before registering the FIR, the crime number could be generated. Thus, finding this explanation to be unreasonable and non-credible, the documents relating to seizure and arrest, namely Ex.P-1 and Ex.P-3, are found to be fabricated documents and, therefore, cannot be relied upon.

9. A mobile phone was seized from the possession of applicant but no inquiry was made on the basis of logged data of that mobile phone to whom calls were made for the purpose of betting and how this mobile phone was being used in the crime. Thus, seizure of mobile phone without any connection been established between it and the commission of crime appears to be without any legal or factual justification.

10. An amount of Rs.14,500/- was recovered from the applicant claiming that it was the amount of wager but again details thereof is missing in the entire prosecution story. Mere recovery of money from a person does not itself prove the crime of betting.

11. It is interesting to note that the appellate court below has observed in para 9 of its judgment that the applicant admitted the fact of playing "satta" in his accused-examination. I have gone through the questions asked in that examination as well as the answers and explanations given by the applicant. In Question No.2, the applicant was asked to explain that he was found playing

"satta" by writing chits but he answered this question in negative. Nowhere in the entire statements, he has admitted the allegation of playing "satta". In explanation given under Question No.16 he has stated that the persons of his locality play "satta" and on the date of incident when police suddenly came in the locality, other persons were playing "satta" while the police arrested the applicant from his shop. This explanation does not have a shred of admission regarding playing "satta" himself by the applicant. Thus, it can be observed that the learned appellate court was not fair enough in discussing the so-called admission made by the applicant. The finding appears to be tainted and cannot be maintained.

12. On the basis of above discussion, the claim of prosecution does not appear to be truthful in the light of statements of police officers. Premchand Shukla (P.W.1) is the only independent witness of seizure proceedings. In his examination-in-chief though he has supported the prosecution case to some extent but in cross-examination he claims that his signature was taken on seizure memo and no proceedings were conducted in his presence. Further, he claims that the applicant was not even arrested in his presence. Thus, the prosecution story has found no support from any independent corroboration.

13. Having considered all these facts, the conviction and sentence passed by the courts below are set aside and the applicant is acquitted of the offence of Section 4-A of the Public Gambling Act.

14. The applicant is on bail. His bail bonds stand discharged.

15. The mobile phone and the amount of Rs.14,500/- seized from the possession of applicant are ordered to be returned to him. The fine amount, if any, deposited by him shall also be returned to him.

Let a copy of this order be sent to the courts below along with their records for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.10.26 15:59:34 +05'30' Adobe Reader version: 11.0.8