Ajit Bank vs The State of Assam

B.L. Hansaria, J.—This revision requires three question in the main to be answered whether the articles said to be teer tickets were found in the possession on the Petitioner; (2) whether these tickets could be called instruments of betting; and (3) whether there was any violation of Section 7 of the Assam Games and Betting Act, 1970, for short the Act.

These questions need determination as the Petitioner was found guilty u/s 14 of the Act whose lethality operates, inter alia, when anybody is found in possession of any instruments of betting, The learned trial court was satisfied about the guilt of the accused and awarded minimum punishment provided by law which is R. I. for six months and A fine of Rs. 1000/-. The same has been upheld by the learned Sessions Judge on appeal. Hence this revision.

It has given me pleasure to find that Mr. Sarma, a comparatively junior counsel has worked hard and tried his best to save the petition. His first attack is that there was no clinching evidence regarding seizure of material Exts. 1 to 14; described as teer tickets, from the possession of the Petitioner. This submission has been made because PW-2 alone hat testified about the same. Though PW-1 was also perhaps produced by the prosecution to prove this fact, his statement in the Court was that he had not seen the accused person selling teer tickets, nor did he testify if he had seen PW-2 seizing the tickets from the possession of the accused. Shri Sarma is, therefore, right that PW-1 cannot be accepted to be a witness regarding possession of "teer tickets" by the Petitioner. But then PW-2 (a police constable) is very categorical. According to him when he was passing from near the shop of the accused he saw crowd there (SIC) attracted his attention and coming to the spot he saw accused selling tickets, which were seized by him. Material Exts. 1 to 14 were identified to be those tickets. The submission relating to this witness that he being the person who had apprehended the accused, his sole testimony should not be accepted. There seem to be no obstacle in law in accepting the sole testimony of such witness. Reference may be made in this connection to State of Gujarat Vs. Jaganbhai Bhagwanbhai, . It was also a case relating to prevention of gambling The Supreme Court accepted the contention- of the State that it would not be correct to say that the evidence of the Police Inspector in whose name the warrant for search was issued requires corroboration in each and every case. Similar view was taken in Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another, wherein the submission that if "an investigating officer conducts a search his evidence cannot be relied on (SIC) it is corroborated," was characterised as "a novel proposition,

In this context it would be apposite to refer to Babu Lal Hargovindas Vs. The State of Gujarat, where it was pointed out that it is not a rule of law and the evidence of a Food Inspector cannot be accepted without corroboration, as be can not be said to be an accomplice. What was held in this regard in Pershadi Vs. State of Uttar Pradesh, is more significant, In that case the sole evidence of a Police Officer relating to theStatement made by an accused while lending to the discovery of certain incriminating materiel was accepted ever though other witness were silent (SIC) same. Thus, there is no bar in law in relying on the lone statement of PW-2. further, we find from his evidence that the persons who were purchasing the tickets had fled away and as such no other person could have been expected to testify about the act of selling, or of possession of the teer tickets by the petitioners. So it is a (SIC) where the sole evidence of PW-2 could be acted upon, as has been done by the courts below. I do not find any infirmity in the same.

The next submission is whether the articles seized ware instruments of betting, Shri Sarma submits that the prosecution (SIC) failed in establishing the same, as that again has (SIC) on the solitary statement of PW-3, who was investing officer. It Is urged that to rely on the sole statement of wit-ness like PW-33, would put in jeopardy the liberty of citizens, as it would not be difficult for an interested police officer to depose that what had been found was an instrument of betting. Shri Sarma has referred to two decisions of Lahiri, J. in Kali Prasanna v. State of Assam AIR 1976 SC 187 and Anil Krishna v. State of Assam (Criminal Revision No. 120/76 dis-posed of on 8.3.79). It is submitted that in Kali Prasanna there was evidence to the satisfaction of the Court that the ticket book in question was an instrument of betting, According to the learned Counsel it is missing in this case. In Anil Krishna was pointed out that the question of (SIC) u/s 18 of the Act would not arise unless the goods seized were instrument of betting or records of betting (SIC) arrest or seizure can be made under the Act only when a person is in the act of betting or is found in possession of (SIC) of betting. So it was observed that "in the absence of any evidence that the articles or things found by police had (SIC) or connection with betting, the articles so seized (SIC) presumed to be either instrument or records of bitting". (SIC)we may note sections 18 and 19 of the Act:

Any ticket, receipt, coupon or counter foil and such other things found and seized on or about a person apprehended or taken into custody under any provision of this Act or found and seized in and from the possession of a person shall be evidence in the trial of such person for an offence under this Act and unless the contrary is proved, shall be presumed to be an instrument of betting on a game or sport and shall also be presumed that the person concerned had taken part in betting.

Any cloth, writing materials, books, khatas, registers ledgers, accounts and account books which may indicate to have any relation to betting, if found on or about the person who has been (SIC) or taken into custody under any provision of this Act or found and seized in and from the possession of any person shall be evidence at the trial of such person for an offence under this Act and shall be presumed to be records of betting unless the contrary is proved by the accused person.

(Emphasis mine)

Now, to prove that the tickets were instruments, of (SIC)I do not think it was necessary to examine an expert has been clearly stated in Jaganbhai, (Supra). Of course, (SIC) must be "proper evidence" that the articles were instrument petting P.W.S a senior S.I. of Police, has deposed that the course of his official duty he had come across papers the Material Exhibits J to 14 and according to him these were tickets. I have myself perused these pieces of paper when are stitched together and are in uniform size of about 2"x 3". At the back, there are some printed number which are 470, 471, 473, 475 and in this sequence upto 495 indicating issue of the papers containing the intervening numbers to the (SIC). A small carbon paper has also been found inside the ticket-book'' all the Material Exhibits to 14 being carbon writings. These slips contain some other numbers on the other (SIC)name of persons with dates. Prices mentioned there very (SIC) 25 paise to Rs. 2/- all in digits of, 25 paise. Because, (SIC) all I would think that the initial burden which lay (SIC) the prosecution u/s 18 of the Act to show that (SIC) Exhibits 1-14 were teer tickets was well discharge. So. (SIC) would not accept the second contention of Sri Sarma.

The last submission is about violation of Section 7 of the Act. this section deals with the power of entry and search of premises etc Shri Sarma seeks to rely in this context on Criminal Revision No. 217/76 decision in which was rendered (SIC) C.J. on 30.11.79, briefly reported in 1981 Cr.L.J. (NOC) 31. That was a case of "surpriser raid", and as provision of Section 100(4) of the Code of Criminal Procedure bad not been fully complied with seizure of incriminating documents from the procession of the accused was not held to have been done in accordance with law, The present is not a case of raid as such. Teer tickets in this case were found and seized on or about the person of the Petitioner who was arrested by PW-2. A reading of Section 18 and 19 of the Act shows that the Act has made a distinction, inter alia, between seizure of a thing found on or about a person apprehended, and taking into custody of the same after search visualised by Section 7 of the Act The offence u/s 14 being cognisable, PW-2 was within his rights to causa arrest of the petitioner and to seize thing found on or about his person, On these facts, I do not road violation of Section 7 of the Act or of 100(4) of the Code of Criminal Procedure. 1 am, therefore, constrained to reject the third submissions as well of Shri Sarma.

8 The ultimate effort is to obtain benefit for the Petitioner under the provisions of Probation of offenders Act. As the age of the accused at the relevant time was about 26 years, as stated by the learned Counsel, and as the offence has to be regarded as a part of social crime because of which minimum sentence has been fixed by the legislature, I do not think if provisions of this Act can justifiably made available to the Petitioner. This prayer is, therefore, rejected.

In the result, the petition stands dismissed.