Jawaharlal Jamnadas Rathi and others vs State of Maharashtra

C.S. Dharmadhikari, J.—The prosecution case, in brief, was that the accused in Criminal Revision Application No. 123 of 1975, namely Jawaharlal Jamnadas Rathi, had taken on rent first and second floors of the building situated in Ward No. 2, Marwadi galli, situated at Wardha, owned by one Thakre. According to the" prosecution, Police Sub-Inspector Patil (P. W. 4) received information that the said Jawaharlal is keeping a common gaming house in that building. Therefore, on 24th July 1971, he approached the Superintendent of Police, Wardha and obtained a warrant from him u/s 6 of the Bombay Prevention of Gambling Act, 1887 referred to hereinafter as "the Act". On 29th July 1971, at about 23 hours Police Sub-Inspector Patil with Police Sub-Inspector Sonawane (P. W. 3), the other staff and the witnesses raided the said building. The warrant was shown to accused Jawaharlal and other persons. Some of the accused were seen gaming on the first floor and some of them on the second floor. According to the prosecution they were sitting around and gambling with cards. The counters were used for gambling and they were ultimately seized on the search being made by the police officers. The prosecution further alleged that Police Sub-Inspector Sonawane carried out the search on the first floor and Police Sub-Inspector Patil at the same time conducted the search on the second floor. The cards and other instruments of gaming were found there. The same were duly seized along with the money and the seizure memo; and the panchanamas were then duly prepared. After completing the investigation the accused persons were prosecuted for offences punishable under sections 4 and 5 of the Act.

It appears from the record that in all 3 different cases were started in this behalf. The persons who were found gaming on the first floor were prosecuted in Criminal Case No 91 of 1972. The other persons who were gambling with cards on the second floor were prosecuted in Criminal Case No. 92 of 1972. These prosecutions were u/s 5 of the Act, whereas accused Jawaharlal Rathi was prosecuted for an offence punishable u/s 4 of the Act in Criminal Case No. 90 of 1972. It further appears from the record that all these cases were tried together and common evidence was recorded.

The accused persons pleaded not guilty and denied the charges levelled against them. In support of its case the prosecution examined Krishnarao (P. W. 1) a Panch witness, Vinayak (P.W. 2), another Panch, who was declared hostile, Shankar Sonawane (P. W. 3), the Police Sub-Inspector and Shiwaji Patil (P. W. 4), another Police Sub-Inspector. Apart from this oral evidence, the prosecution also relied upon the documentary evidence, including the seizure memos and the panchanamas. The accused did not examine any witness in their defence, though accused Jawaharlal filed a written-statement.

After appreciating all the evidence on record, the Judicial Magistrate, First Class, came to the conclusion that the prosecution has established beyond reasonable doubt that accused Jawaharlal was keeping a common gaming house and other accused persons, namely, the accused Nos. 1 to 7 and 10 to 14 were guilty of an offence punishable u/s 5 of the Act. The learned Judicial Magistrate, First Class, therefore, convicted accused Jawaharlal Rathi for an offence punishable u/s 4 of the Act and sentenced him to suffer rigorous imprisonment for two months and to pay a fine of Rs. 500, or in default to suffer further rigorous imprisonment for one month. He sentenced each of the other accused Nos. 1 to 7 and 10 to 14 to undergo rigorous imprisonment for one month and to pay a fine of Rs. 200, or in default undergo further rigorous imprisonment for fifteen days for the offence punishable u/s 5 of the Act.

Being aggrieved by these orders of conviction and sentences, the accused persons filed appeals before the Sessions Judge, Wardha. The appeal filed by Jawaharlal was registered as Criminal Appeal No. 78 of 1974, whereas the appeal filed by accused Bhaurao and others was registered as Criminal Appeal No. 77 of 1974. By independent judgments delivered on 25th September 1975, the learned Sessions Judge, Wardha, dismissed both the appeals. The learned Sessions Judge confirmed the sentence of Jawaharlal Rathi, whereas he modified the order of sentence in respect of accused persons in Criminal Appeal No. 77 of 1974 directing each of them to pay a fine of Rs. 200 or in default to undergo rigorous imprisonment for one month. Thereafter accused Mulchand, Madhukar and Shantaram have filed Criminal Revision Application before this Court bearing Criminal Revision Application No. 12 of 1976, and accused Jawaharlal Rathi filed Criminal Revision Application No. 123 of 1975.

Initially these matters came for hearing before the Single Judge of this Court. Before the single Judge accused Jawaharlal relied upon a Division Bench decision of this Court in State v. Talaksi Malsi 75 Bom. L R 373 and contended that in the present case, the police officer concerned has not demonstrated that before entering into the premises he had reason to suspect that the premises in question were being used as a common gaming house. In support of this contention he relied upon the aforesaid decision of this Court.

The learned single Judge (Masodkar J.) in his order observed as under.

This raises a question of burden of proof on the prosecution itself before it can ask the Court to raise a presumption u/s 7 of the Act What type of evidence would be necessary to discharge the burden if Talaksi Malsi''s case lays down the correct law is a question that fails for consideration,...

However, the matter is not clear and as there is a Division Bench ruling, I feel that the present revision should be appropriately decided by the Division Bench.

In view of these observations made by the single Judge Criminal Revision Application No. 123 of 1975 filed by Jawaharlal Rathi is referred to the Division Bench for decision. As the main Revision Application filed by the main accused Jawaharlal was referred to the Division Bench, the connected Revision Application filed by the other accused, bearing Criminal Revision Application No. 12 of 1976, was also kept for hearing with the main Revision Application. Thus both these Revision Applications came up for hearing before the Division Bench.

Shri Manohar, the learned counsel for applicant Jawaharlal in Criminal Revision Application No. 123 of 1975, contended before us that the prosecution has failed to prove that Police Sub-Inspector Patil, who entered the premises, had any reason to suspect that the premises in question were being used as a common gaming house. The learned counsel further contended that in absence of such an evidence on record, the entry of Patil, Police Sub-Inspector could not be termed to be an entry u/s 6 of the Act and, therefore, the presumption u/s 7 is not available to the prosecution. He further contended that as the conviction of the accused is wholly based upon the presumption u/s 7 of the Act, the same is illegal. Shri Manohar further contended that the premises raided by Police Sub-Inspector Patil are not the same which were intended by the warrant in question, namely, Ex. 29. According to Shri Manohar, the warrant related to a different house, whereas Police Sub Inspector Patil entered the house in question for which no warrant was issued. In this view of the matter, according to the learned counsel, it can also be said that the entry in the premises was u/s 6 of the Art and therefore according to Shri Manohar, the Courts below committed an error in holding that the presumption u/s 7 of the Act is available to the prosecution. Shri Manohar further contended that even if it is assumed that a presumption could be raised u/s 7 of the Act, the accused persons have rebutted the said presumption and, therefore, were entitled for an acquittal.

On the other hand, it is contended by Shri Salve, the learned Assistant Government Pleader, that as Police Sub-Inspector Patil had reason to suspect that the premises in question were being used as a common gaming house, he obtained a warrant and entered the premises in pursuance of the said warrant issued by the competent authority. The description of the house given in the warrant and particularly regarding the ownership thereof could at the most be termed to be a mis-description or a defect, which is not material one. According to Shri Salve, this was the very house for which the warrant was issued. This being the house which was intended to be entered into in pursuance of the warrant any minor discrepancy or mis-description in the warrant cannot vitiate the entry. Therefore, according to Shri Salve, the Courts below were right in coming to the conclusion that Police Sub Inspector Patil entered the premises u/s 6 of the Act. He further contended that in pursuance of the entry when the seizure was made, the instruments of gaming were found in the premises and were ultimately seized by the Police Officer. In view of these findings of fact the Courts below were further right in raising a presumption u/s 7 of the Act and thereby convicting the accused for the offences u/s 4 and section 5 of the Act. So far as the question of rebuttal is concerned, he contended that the accused persons have not led, any evidence to rebut the presumption raised. In this view of the matter according to Shri Salve, the conviction of the accused for offences punishable u/s 4 and section 5 of the Act is perfectly legal and valid.

For properly understanding the controversy raised before us, it will be worthwhile to reproduce the relevant provisions of sections 6 and 7 of the Act, which read as under :

6 (i) It shall be lawful for a Police officer-

(i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub-Inspector and either empowered by general order in writing or authorised in each case by Special warrant issued by the Commissioner of Police, and

(ii) elsewhere not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf, and

* * * *

(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming-house.

When any instrument of gaming has been seized in any house, room or place entered u/s 6 or about the person of anyone found therein, and in the case of any other thing so seized it the Court is satisfied that the Police officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming-house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the Magistrate or the Police officer or by any person acting under the authority of either of them :

Provided that the aforesaid presumption shall be made, notwithstanding any defect in the warrant or order in pursuance of which the house, room or place was entered u/s 6, if the Court considers the defect not to be a material one.

From the bare reading of these provisions it is quite obvious that if a Police Officer enters the premises with necessary warrant about which he has reason to suspect that the same are being used as common gaming house and on entry he seizes some material for which he has reasonable grounds for suspecting that they are instruments of gaming, then the seizure of such instruments or things shall be the evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the police officer concerned. These provisions raise a presumption in this behalf. This position is not disputed by Shri Manohar. However, he has strongly relied upon certain observations of this Court in State of Maharashtra v. Falaksi Malsi (cit. supra). Shri Manohar has drawn own attention to the observations of the Division Bench at page 393 where it was observed :

In the case of common gaming house, and not a public place covered by section 12, it has to be initially shown that the entry was effected u/s 6 where the Sub-Inspector had reasons to suspect that the place was being used as a common gaming-house and he has to demonstrate before the Court to its satisfaction that ''he had reason to suspect.'' The next step required u/s 7 is that in the case of such entry instruments or things must be attached in respect of which the Sub-inspector had reasonable ground for suspecting that they were instruments of gaming. Here again, this has to be demonstrated to the satisfaction of the Court. The moment the Court is satisfied that the Sub-Inspector had reasonable ground to suspect that the things seized were instruments of gaming, a presumption is raised which presumption is similar to the presumption u/s 12. For the purpose of reaching the stage of asking the Court to raise the presumption under either of the sections, the procedure has to be same in part, viz. that the Court has to be satisfied that the Sub-Inspector had reasonable ground to suspect. If the prosecution has to induce the Court to raise the presumption in either cases, it would be necessary to lead evidence. In cases of raid under the Act where the case against the accused person is sought to be proved by merely asking the Court to raise a presumption, ordinarily it would be the oral evidence of Sub-Inspector supported by some witnesses in a given case coupled with the finding of certain things in the place raided that would be the only evidence available.

Thereafter while dealing with the question as to what could be the nature of the evidence in this behalf, the Division Bench at page 396 observed as under:

This being the legal position, we are of the view that the oral evidence of the Sub-Inspector describing his information about the nature of the gambling going on is undoubtedly admissible because that alone could be the evidence from which the Court has to be satisfied whether u/s 6 the officer concerned had reason to suspect that the particular place was being used as a common gaming house.

On the basis of these observations it is contended by Shri Manohar that in the present case the prosecution has not demonstrated to the satisfaction of the Court that Police Sub-Inspector Patil was satisfied that he had reason to suspect that the premises raided were being used as a common gaming house. He further contended that such an evidence is wholly lacking in the present case and in the absence of such an evidence satisfying the Court in this behalf, the presumption u/s 7 of the Act cannot be raised. In our opinion, this will not be the correct reading of the judgment of this Court in Talaksi Malsi''s case.

It is pertinent to note that in the case before the Division Bench, namely, State of Maharashtra v. Talaksi Malsi, the Deputy Commissioner of Police had empowered Police Sub-Inspector Gole by a general order in a writing issued u/s 6 of the Act to conduct the raids. That was a case where the Court was concerned with a raid carried on by the Police Sub-Inspector by virtue of the powers conferred upon him by the general order. That was not a case in which special warrant was issued qua particular place or house. It appears that in Talaksi Malsi''s case Shri Gole was invested with the powers to conduct raids long back, i.e. even before 1955 and the raid was conducted in the year 1968. The Deputy Commissioner of Police who issued the general order had retired in 1955 and also died later on. Therefore, that was a case of general order issued long back, in pursuance of which raid was conducted in the year 1968, by the Police Officer as he had reason to suspect that house in question was being used as a common gaming house. From the bare reading of section 6, it appears that a warrant or an authorisation could be issued which is either general in nature or a special one. The authorities can empower the subordinate officer either by a general order in writing or in a specific case by a special warrant. Obviously the authorisation by a special warrant has to be in the name of a particular officer and with respect to a particular house, room or place. Further more, the proviso to section 6 makes it clear that some preliminary enquiry is contemplated and a caution has to be exercised by the officer concerned before issuing a special warrant. The special warrant could be issued on being satisfied that there are good grounds existing to give such an authority to a particular subordinate officer to enter and search a particular house, room or place. Normally there is presumption u/s 114 of the evidence Act that the officer issuing the warrant has performed his duty in accordance with Law. The general order issued may not be with reference to a particular place or places, nor it is necessary to hold any preliminary enquiry before such a general order is issued. The provision with regard to genera] order seems to have been made by the Legislature with an intention to avoid a delay which could enable an offender to avoid arrest and to do away with the incriminating evidence before the police could effect an entry in a suspected place after obtaining a special warrant. In the case before us we are concerned with a case wherein a special warrant was issued by the Superintendent of police u/s 6 of the Act. From the evidence of Police Sub-inspector Patil it is quite clear that on 24-7-1971 he received an information that accused Jawaharlal keeps a common gaming house and, therefore, he obtained a search warrant (Ex. 29) from the Superintendent of Police. This special warrant was issued by the Superintendent of Police on the application filed by Patil, Police Sub-Inspector. Then from the bare reading of Ex. 29, the special warrant, it is further clear that after examining the complaint on oath, as the Superintendent of Police came to the conclusion that the Police officer concerned had a reason to suspect that the house in question was being used as a common gaming house and having satisfied himself after an enquiry that there are good grounds for such suspicion, the Superintendent of Police, Wardha, issued the Special warrant which was valid upto 31st July 1971. On the basis of this warrant the Police "Inspector Patil entered the premises and ultimately seized the instruments and articles such as playing cards, counters etc. which he suspected were the instruments of gaming. As observed by the Division Bench of this Court in Talaksi Malsi''s case, it is ultimately the Court which has to be satisfied on the basis of the material placed on record that the police officer concerned had reason to suspect that a particular place which he intended to raid was being used as a common gaming house. As to what could be termed as sufficient evidence to satisfy the Court in this behalf must depend on the facts and circumstances of each case. In the case before us, on the basis of the evidence of Police Sub-Inspector Patil, coupled with the contents of Ex. 29, the special warrant itself, in our opinion, the Courts below were right in coming to the conclusion that the officer concerned, namely, the Police Sub-Inspector Patil, who, on the basis of the information received by him that accused Jawaharlal keeps a common gaming house, filed an application before the Superintendent of Police praying for a warrant u/s 6 of the Act, had reason to suspect that the house in question was being used as a common gaming house. After the said application was filed in writing by the Police Sub-Inspector, after necessary verification and enquiry the warrant (Ex. 29) in question was issued by the Superintendent of Police. In our opinion, in a case of a special warrant such an evidence is enough to come to the conclusion that the officer concerned had reason to suspect that the premises were being used as a common gaming house.

While construing the provisions of section 6 of the Act various contingencies could be visualised. In a given case the officer concerned who could issue a general order or a special warrant could take a decision in this behalf on the basis of information derived from any source. This source could be a source other than the police officer concerned. Secondly, the authorisation could be general in nature which is not restricted to any specific place or house and on the basis of such a genera order in writing, as the officer concerned has reason to suspect that a particular place is being used as a common gaining house, he decides to enter upon the premises, and thirdly, that the Police Sub-Inspector or the officer who is authorised to enter the premises, himself had an earlier reliable information that a particular place is being used as a common gaming house and acting upon this information he himself files an application before the authority concerned praying for a special warrant and after holding an enquiry as contemplated by proviso to section 6 and on being satisfied that there are good grounds to suspect that the said house is being used as a common gaming house, the officer concerned issues a special warrant and that too in the name of the same police officer, who had applied for such a warrant. Of course these examples are illustrative and not exhaustive. In the present case, we are concerned with the case which is covered by the last illustration. In such a case, the police officer, who applies for a warrant, had already information that a particular place is being used as a common gaming house. On the basis of this information as he has reason to suspect that the said place is in fact being used as a common gaming house, he approaches for a warrant. In pursuance of this application an enquiry is made by the competent authority and on the basis of said enquiry after coming to the conclusion that there are good grounds to suspect that the said house is being used as a common gaming house a special warrant is issued by the competent authority authorising the applicant himself to enter the premises. In such a case, in our opinion, it cannot be said that the officer concerned, who enters the house in pursuance of such a special warrant had no reason to suspect that the house is being used as a common gaming house. Such an evidence on record could be termed to be a sufficient demonstration of the fact that the person concerned had reason to suspect that the premises are being used as a common gaming house. In our opinion, having regard to the evidence on record, in the present case, the Courts below were right in coming to the conclusion that Police Sub-Inspector Patil had reason to suspect that the house in question was being used as a common gaming house. Therefore, there is no substance in the contentions raised by Shri Manohar in this behalf.

It was then contended by Shri Manohar that Ex.29 the special warrant related to house No. 194, first floor and second floor, Ward No. 2, Marwadi Galli, Wardha, owned by Annaji Thakre, who is resident of Path, Police Station, Kharangana, and which was in possession of Jawaharlal Jamnadas Rathi, resident of Wardha. The house which is ultimately searched by Patil was not bearing Municipal House No. 194, nor it was owned by Annaji Thakre. The premises which were ultimately searched and entered into by Police Sub-Inspector Patil were the premises occupied by Manoranjan Club belonging to Narayan Thakre. He further contended that the premises searched which were occupied by Sai Sewa Mandal and Manoranjan Club were never intended to be searched by Ex. 29 at all.

On the other hand, it is contended by Shri Salve that the house searched was the same, which was intended by the warrant Ex. 29. In support of this contention Shri Salve has relied upon a memo issued by the Chief Officer of the Municipal Council dated 9-12-1971.

It appears from the record that though the Chief Officer of the Municipal Council, Wardha was cited as a witness he was given up by the prosecution. Therefore, the Chief Officer was not examined as a witness in the case. In the record produced before us only a true copy of this memo dated 9 12 1971 is produced, because the original was produced in Criminal Case No 91 of 1972. As already observed, all these 3 cases were tried together and common evidence was adduced on behalf of the prosecution in all these 3 cases. The memo on which reliance is placed by the prosecution was issued by the Chief Officer, Municipal Council, Wardha, in reply to a letter written by the Station House Officer of the Police Station. Therefore, the said memorandum was merely a letter issued by the Chief Officer and was not the certified copy of the extract from the assessment list or any other public documents, which the Municipal Officer is required to maintain under the provisions of the Municipalities Act. Therefore, obviously the said document will not be per se admissible in evidence. Reliance was placed on this document by Shri Salve to indicate that there was merely a defect in the warrant Ex. 29 regarding the name of the owner of the house and the number of the house etc. and the said defect was not material one. According to Shri Salve, the initial house number of the premises searched was 194 and it was owned by minor guardian Govindrao Appaji Thakre. Subsequently in the assessment list for the year 1971-72 to 1974-75 the house number was changed to 220/1, which was owned by Narayan, Devidas and Subhash sons of Govindrao Appaji Thakre, who was guardian of the minors and, therefore, according to Shri Salve, there is merely an error or defect, which is not material one,

Apart from the fact that the said memorandum dated 9-12-1971 is not admissible in evidence, as the Chief Officer of the Municipal Council is not examined, it is further clear from the said memorandum itself that accused Jawaharlal Rathi is the tenant of one block only bearing No. 22/1 in house No. 220/1. The description given in the warrant Ex. 29 is obviously different and distinct. Further, it appears from the evidence of Police Sub-Inspector Patil that he was knowing the number of the house etc. and on the basis of this detail information description was incorporated in Ex. 29, the warrant. If evidence regarding the description of house searched is closely scrutinised, it is quite clear that the same does not tally with description given in Ex. 29. Therefore, in our opinion, the prosecution has failed to establish that there was merely an error or defect in the warrant regarding the house number and the name of the owner and the said defect is not material one. Faced with this difficulty, Shri Salve, the learned Assistant Government Pleader, contended before us that either the matter should be remanded back for giving an opportunity to the prosecution to examine the Chief Officer of the Municipal Council, or the prosecution be permitted to adduce additional evidence before this Court. It is not possible for us to accept this request at this late stage.

It is pertinent to note that Criminal Cases Nos. 90, 91 and 92 of 1972 were tried together. The accused Jawaharlal was prosecuted in Criminal Case No. 90 of 1972, whereas in Criminal Case No. 92 of 1972 in all 14 persons were made the accused. Original accused Nos. 1 to 7 and 10 to 14 were also convicted in the said case. Out of them only 3 have come before this Court, that is, original accused Nos. 10, 11 and 12. Therefore, the conviction and sentences passed by the Courts below have become final so far as the other accused persons are concerned. In these circumstances, in our opinion, it will be neither expedient nor will be in the interest of justice to give a fresh opportunity to the prosecution to lead an additional evidence in this behalf and that too for removing a lacuna. Further, it cannot be forgotten that the Chief Officer of the Municipal Council was specifically cited as a witness and was ultimately given up by the prosecution. In this view of the matter, it is not possible for us to grant the request made by the learned Assistant Government pleader at this late stage.

Therefore, it is not clear from the evidence placed on record that the police officer concerned has entered and searched the same house which was intended by the warrant Ex. 29 Further, from the evidence on record, including the evidence of Panch witness Krishnarao (P. W. 1) and the evidence of two police officers, namely, Sonwane (P. W. 3) and Patil (P. W. 4), it is quite clear that the police officers entered the premises which were in possession of Manoranjan Club. The Panch witness, namely, Krishnarao (P. W. 1) has stated in his evidence that on the premises searched there were boards of Sai Sewa Mandal and Manoranjan Club. He has gone to the extent of saying that in the said premises there were carom and chess boards and other articles, but they were not seized. This panch witness was not declared hostile, but to some extent the prosecution was relying upon his evidence. If the evidence of the two police officers, namely, Sonwane and Patil (P. Ws. 3 and 4 respectively) is read with the evidence of panch witness Krishnarao (P. W. 1), it is clear that the premises which were searched by the police officers were belonging to Manoranjan Club. According to the accused persons, this Club is a registered Body and accused Jawaharlal was merely acting as a Secretary of the Club. If this is so, then, in our opinion, having regard to the evidence on record, it is really doubtful as to whether these were the very premises which were intended to be raided and searched by the special warrant issued by the Superintendent of Police, that is, Ex.29. In these circumstances and in the absence of any evidence establishing the fact that the description given in the warrant was merely an error or defect which was not material, in our opinion, the accused persons will be entitled to a benefit of doubt in this behalf.

In the view which we have taken, therefore, it is not necessary to consider and decide the other contentions raised on behalf of the accused persons. Once it is held that it is doubtful as to whether the premises searched were the same which were intended by the special warrant Ex. 29, then, it is obvious that the presumption u/s 7 of the Act cannot be raised and, therefore, the conviction of the accused Jawaharlal Rathi, is liable to be quashed and set aside as he is entitled to a benefit of doubt in that behalf.

So far as Criminal Revision Application No. 12 of 1976 is concerned, it is clear from the judgments of the Courts below that their conviction is also based on the presumption raised u/s 7 of the Act. Once it is held that such a presumption is not available to the prosecution, then the three accused persons in the said Criminal Revision Application are also entitled to get the benefit of doubt in that behalf.

In the result, therefore, both the Revision Applications are allowed. The conviction and sentence of accused Jawaharlal Rathi and the conviction and sentences of accused Mulchand, Madhukar and Shantaram are set aside and they are acquitted of the charges levelled against them. The bail bonds executed by them will stand cancelled. Fine, if paid, will be refunded to them.