STATE OF MAHARASHTRA Vs. KAMALAJI HEMRAJ SHARMA,

JUDGEMENT

(1.) THE State has come here in appeal from an order of acquittal passed by the teamed Sessions Judge, Buldana. He allowed the appeal of the accused, who was convicted for the offence punishable under Section 12 -A of the Bombay Prevention of Gambling Act (hereinafter called the Gambling Act), set aside his conviction and acquitted him.

(2.) THE prosecution case against the accused was that on 21.1.1968, in the weekly market at Khamgaon on Sunday, the accused was selling "Worli -Matka Express" pamphlets each for 25 Paise. Ha was sitting there on a public road and was having his book -stall, selling these pamphlets and shouting slogans to attract the customers. These pamphlets contained Worli -Matka numbers. The case of the prosecution therefore is that the accused was selling this Worli -Matka Express with a view to aid and facilitate gaming. The accused denied having shouted any slogans as alleged by the prosecution. He denied having sold "Worli -Matka Express". According to him, these pamphlets were taken out from a box at the time when he was closing his shop. He explains that the Police Officer came there at that time and opened his box and then took out the contents. He says that he did not know the contents of these pamphlets. He however admits the seizure of 28 Worli -Matka pamphlets from him. The learned Magistrate who tried the accused found that the accused was selling Worli -Matka Express in the weekly market there and was shouting saying According to him, he was selling these pamphlets with the intention of aiding and facilitating gaming. Accordingly, therefore, he held him guilty for the offence punishable under Section 12 -A of the Gambling Act and sentenced him to suffer rigourous imprisonment for one month and a fine of Rs. 200/ -.

(3.) THIS order was challenged by the accused. The learned Sessions Judge also found that 28 Worli -Matka pamphlets were seized from the possession of the accused and that the accused was also having all these pamphlets with him for the purpose of selling them in the weekly market. According to him, the prosecution, however, did not establish that the accused had actually sold the Worli -Matka Express pamphlets and received money. He is of the opinion that the offence under Section 12 -A could not be committed unless and until there was an actual sale. According to him, because the prosecution did not lead more evidence to show that the accused had actually sold the pamphlets, therefore, his act did not come within the purview of Section 12 -A of the Gambling Act. Accordingly, therefore, he allowed the appeal, set aside the order of conviction and sentence and acquitted the accused. This order of the learned Sessions Judge, therefore, is challenged here by the State. The only point, therefore, that arises here for determination is to see whether this order of acquittal is proper.