Shri Niren Basumatari vs The State of Assam

S.N. Phukan, J.—On 5.1.78 at about 12.30 P.M. Sub-Inspector of Police Jainal Abedin Khan, who was at the relevant time working in the C.I.D. Branch of the Police Department at Gauhati found the accused-Petitioner selling ''Teer'' gambling tickets at Disput market. Along with Jainal Abeddin Khan (P.W. 4) another police official Rabindra Sangma (P.W. 1) was also present. Accused person was arrested, alleged instruments of gambling were seized and charge sheet u/s 14 of the Assam Game and Betting Act, 1970, for short, ''the Act'' was submitted.

The learned Judicial Magistrate, Gauhati found the accused-Petitioner guilty and convicted him accordingly under the aforesaid section of the Act and sentenced him to rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- by his judgment and order dated 16.6.80 pasted in GR Case No. 49/77, The appeal was also dismissed by the learned Additional Sessions Judge, Gauhati vide his judgment and order dated 16.6.80 passed in Criminal Appeal No. 26(K-3)/79. However, the learned lower appellate Court reduced the sentence of imprisonment to three months and fine to Rs. 500 (Rupees five hundred). Hence the present petition u/s 397 read with Section 401 of the Code of Criminal Procedure, 1973,

Mr. D.K. Bhattacharjee, learned Counsel for the Petitioner made three submissions before this Court, namely, that the seizure or the alleged gambling articles wan not according to law, that the action of the accused did not amount to taking part in betting and that even if seizure was legal, the alleged seized articles did not give rise to any presumption of betting, as provided under the Act. Mr. Bhattacharjee also drew the attention of this Court to the fact that the alleged seized articles were not produced before the Court by the prosecution.

Mr. Gopal, learned Public Prosecutor submitted that the prosecution has proved the guilt of the accused in the instant case beyond reasonable doubt. Mr. Gopal also placed reliance on the decision of this Court in Ajit Banik (1985) 1 GLR 222, According to learned public prosecutor since the learned lower Courts came to a definite finding that the accused was guilty under the provisions of the Act this Court need not reappreciate the evidence on record in this revision petition.

I can take judicial notice of the fart that ''Teer'' i.e. the game of arrow shooting or archery is played in an organised manner only in Khasi and Jayantia Hills of the State of Meghalaya. This game is played in an organised and regular manner in and around Shillong, the Capital of Meghalaya and the betting on this game in Meghalaya and in other parts of North-Eastern Region takes place on the basis of the results of the game played at Shillong.

I would like to refer to the book "The Khasis" by P.G. Gurdon which was published in the year 1907. In this book the learned author has given a systematic account of the Khasi and Jayantia people, their manners and customs, their ethnological affinities, their laws and institutions, their religious beliefs etc. at page 55 (reprinted edition 1975) the learned author has described a Khasi archery meeting. According to the learned author the khasis opine that arrow-shooting originated at the beginning of creation, the Khasi Eve (Ka-mei-ka-nong-hukan) had two sons to whom she taught the toxophilite art at the same time she warned them never to lose their tampers over the game. The Khasis have many games, but their principal game is archery, this may be said to be the national game. The men of one village used to challenge those of another. Before the games umpires were appointed and conditions were laid down. The targets were generally small bundles of grass, called ''U skum'' about one feet long and by 4" in diameter fastened on a small polo. Sometimes targets were made from the root of a plant called Ka soh pdung. The distances between the targets and the marksmen used to be 40 to 50 yrds the side with the greatest number of hits was the winner of The match, the successful patty returning home dancing and shouting. The young woman admirers of both sides used to assemble and dispense refreshments to the competitors, taking a keen interest in the proceeding. Frequently large number of wagers were made on either side and in some parts of Khasl bills as much as Rs. 500/- (Rupees five hundred) were occasionally wagered on either side. More usual bets were, however, about ''one anna'' a head. Of course the above procedure hat now undergone charges.

In the year 1969 the Assam Amusement and Betting Tax Act, 1939 was amended by Assam Act 16 of 1969 and by the aforesaid amendment two new clauses namely Clause (3A) and (7) were introduced in Section 14 occurring in Chapter II of the aforesaid Act. Consequential amendments were also made in Sections 17, 20 and 21. By the aforesaid amendment betting on arrow-shooting was legalised and a betting tax on such arrow shooting was also levied. However, by Assam Games and Betting Act, 1970 (Assam Act 18 of 1970) the aforesaid amendments were deleted. So the present legal position in the State of Assam h that betting on arrow shooting is illegal.

After the creation of the State of Meghalaya, by the Meghalaya Amusement and Betting Tax (Amendment) Act, 1982 the aforesaid amendments were reintroduced in Assam Amusement and Betting Tax Act, 1939, as adapted and modified by Meghalaya. In view of the aforesaid amendments, in the State of Meghalaya betting to arrow-shooting is legal provided such betting takes place according to the provisions of the amended Act and rules framed thereunder.

Situated thus, I find that betting on arrow shooting in some parts of North-Eastern Region takes place on the basis of results of arrow shooting halo at Shillong, Meghalaya. Such betting though legal in the State of Meghalaya, is illegal in the State of Assam. What will be the legal position if a person after purchasing a ''Teer'' ticket at Shillong, comes to Gauhati with the ticket? However in the instant case I do not propose to enter into this question and keep it open to be decided when such an occasion arises.

Coming back to the case in band I would like to deal with certain decisions of this Court relied upon by Mr. Bhattacharjee, learned Counsel for the Petitioner.

In Anil Kundu, Criminal Revision 120/76 (decided on 8.3.1979) Lahiri, J. considered the question whether recovery of any ticket, token, receipt, coupon etc. found on or about a person ipso facto brings into operation the provisions of Section 18 of the Act that the articles or things recovered are instruments of betting and the parson concerned bad taken part in betting. After considering the relevant provisions of the Act the Court, inter alia, held that records and instruments of betting must have some nexus or casual connection with betting and that it is the bound en duty of the prosecution in order to bring home a charge of possession of Instruments or words of betting to show that the accused was found in possession of articles or things which are used in betting or are used to facilities betting on a game or sport or such records which contained or might indicate to have any relation he records of betting, In that case the prosecution was for possession of ''teer'' tickets and the Court found that there was no material to show that the articles or things found with the accused were instruments or records of betting and as such no presumption u/s 18 or 19 of the Act can be drawn against the accused. The Court also considered the views expressed in Kaliprasanna Dos 1976 Gau LR 157 was of the opinion that the case was not applicable as in that case the prosecution proved beyond reasonable doubt that the ''ticket book'' found with the accused was the instrument of betting.

12 In Ratish Gosh and Anr. Criminal Revision No. 177/ 77 (decided on 19.7 79) allowing the petition of the accused persons, who were convicted under the Act for the possession of instruments of betting, such as teer tickets, teer game book etc. Islam, J. (as he then was) held that the provision of Section 100 of the Code of Criminal Procedure, 1973 is mandatory and as the procedure laid down in the said section was not complied with at the time of seizure of the articles from the possession of the accused, the prosecution failed to prove that the alleged articles were seized from the possession of the accused persons.

In Bhagwan Shah Criminal Revision No. 132/79 (decided on 23.8.84) Hansaria, J. set aside the conviction on the ground that there was no evidence to show that what was seized from the Petitioner was a part of instrument of betting or that the articles recovered had such degree of probative or persuasive value as to hold that those were instruments of betting. The prosecution was for seeing of ''Teer'' ticket. The Court also did not find any material to hold that anything was stacked to be won or lost on the happening or determination of an uncertained thing event or contingency. The Court further held that the decision in Ajit Banik (1982) 1 GLR 222 was inapplicable inasmuch as in that case there was proper evidence to hold that the articles seized were instruments of betting.

In Kalachand Criminal Revision No. 139/79 (decided on 4.5.84) the conviction of the accused-Petitioner for possession of ''Teer'' tickets was set aside and the Court speaking through Dr. Singh, J. held that as the offence u/s 14 of the Act binges on the question of possession of the materials laid to have been recovered from the possession of the accused, it was the bounden duty of the prosecution to establish beyond reasonable doubt that the materials were in fact recovered from his possession. The Court further held that to bring homo the offence to the accused it was incumbent on the prosecution to prove beyond reasonable doubt that the articles were recovered from the possession of the accused and that such possession was prohibited by Sections 2(a) and 14 of the Act.

14.1 In Bishnu Bharali Criminal Revision No. 87/80 (decided on 3.9.84) Das, J. relying on Monikanta (1982) 1 GLR 492, Debi Bhattacharjee Vs. State of Assam, and other decisions of this Court set aside the convictions as the seizure was not according to law and there was no material to show that the articles found in the possession of the accused were instruments, or records of betting.

15, In Monikanta (1982) 1 GLR 492 this Court held that the prosecution has to prove that ''teer'' is a betting game or sport and that the articles or things seized are ''instrument of betting'' or ''records of betting'' as defined in Section 2 of the Act.

In Debi Bhettaeharje 1983 L.J. 1005 this Court hold that purchase of ticket for a game or sport by itself does not become the act of betting and the prosecution must establish beyond reasonable doubt that money or valuable security or things are stacked to be won or lost on the happening or determination of an uncertained thing, event or contingency in relation to a game or sport.

From the above decisions I find that this Court has consistently expressed the views that to bring home a charge u/s 14 of the Act for possession of instruments or records of betting the prosecution must satisfy the Court on the following points: (a) that the accused was found in possession of articles or things which are used in betting or are used to facilitate batting on a game or sport or such records which controls of might indicate to have any relation to records of betting and such things or instruments must have soma nexus or casual connection with betting, (b) that the presumption u/s 18 of the Act would arise only after prosecution by adducing evidence has proved that the articles or things seized were instruments of betting or records of betting as defined under the Act; (c) that anything was stacked to be won or lost on the happening or determination of an uncertained thing, event or contingency and (d) that while conducting search for recovery of articles or things, during investigation the prosecution must follow the provisions of Section 100 of the Code of Criminal Procedure, 1973 which is mandatory.

Coming back to case in band I find that by seizure list (Ext. 1) police seized ''teer gambling ticket book'', some carbon papers, vouchers, one exercise book containing results of "dreams'' and cash of Rs. 125.25p. (Rupees One hundred twenty-five and twenty-five paise) etc. According to the seizure list the seizure was made in presence of witnesses. But prosecution ex. trained only one independent witness namely P.W. 2. Upon who did not support the seizure. According to him he signed a paper on which nothing was written. On scrutiny of the seizure list I find that signature of the accused was also taken on the back side of the seizure list which was blank. It is apparent from the record including the seizure list that seizure of the alleged articles was not made according to the provisions of Section 100 of the Code of Criminal Procedure and as such it was illegal. From the evidence on record I find that seized articles were not produced in the Court and not exhibited. In absence of these seized articles before the Court and also in view of the illegal leisure, the conviction and sentence cannot stand. That apart, there is absolutely no evidence to show that the articles alleged to have been seized have any nexus or casual connection with betting. There is also no finding of the trial Court on this point. Prosecution also did not adduce any evidence to show that anything was stacked to be won or lost on the happening or determination of an ascertained thing, event or contingency. The decision of this Court to Ajit Banik (supra) on which learned public prosecutor has placed reliance is not applicable inasmuch as in that case there was evidence to hold that the articles seized were instruments of betting which is lacking in the instant case.

In view of the above circumstance the conviction and sentence are liable to be set aside, which I hereby do.

In the result, the petition is allowed by setting aside the conviction and sentence awarded against the Petitioner. The rule is made absolute. The Petitioner, who is on bail need not surrender to his bail bond.