STATE OF MAHARASHTRA Vs. JAYANTILAL GOVINDDAS

JUDGEMENT

(1.) This is an appeal by the State of Bombay against an order of acquittal passed by the learned Sessions Judge, Ahmedabad, in favour of the original accused persons Jayantilal Govinddas and Chimanlal Vrijlal who were prosecuted for an offence under Section 12, Clause (a) of the Bombay Prevention of Gambling Act 1887 (Bom. IV of 1887), and convicted and sentenced by the learned Fifth Additional City Magistrate, Ahmedabad.

(2.) Shortly stated, the facts of the case which gave rise to this prosecution were as follows: On November 15, 1950, Police Sub-Inspector Mishrikhan Pa than attached to the Astodia Police Chowkey received information that accused No. 1 Jayantilal Govinddas was receiving bets on American futures near Adarsh Hindu Hotel situated not far from the entrance to Sankdi Sheri. On receiving that information, the Sub-Inspector called the punter and the 'panchas1 and in the presence of the 'panch' searched the person of the punter and gave a marked two rupee note bearing No. 17-37 925751 to him. The punter was thereafter Instructed by the Sub-Inspector to go to accused No. 1 and lay a bet of Rs. 2 on Bombay 7. Accordingly the punter accompanied by the 'panch' witness Ramchandra Chhotuji went in advance. They were followed by the Sob-Inspector and the other 'panch' Mohamed Sharif Musaji. The punter went up to accused No. 1 and offered a bet of Rs. 2 on Bombay 7. Accused No. 1 accepted the bet and received the two rupee note from the punter. The recording of this bet was done by accused No. 2 who was present near accused No. 1 on that occasion. After the bet was thus offered and accepted and recorded, a signal was given and the raid was effected by the police in the presence of the 'panchas'. As the result of the raid, the marked two rupee note was found with accused No. 1 whereas the slip exh. 1-C on which the bet which was offered by the punter was recorded by accused No. 2 was found with accused No. 2. On these facts both the accused were prosecuted for an offence under 6. 12, Clause (a) of the Bombay Prevention of Gambling Act, in the Court of the Fifth Additional City Magistrate, Ahmedabad. The learned Magistrate, on a careful consideration of the evidence of the punter and the 'panch' and also of the slip exh. 1-C, came to the conclusion that the evidence adduced by the prosecution was "quite natural and probable and believable" and that the offence with which the accused were charged was brought home to them. Accordingly he convicted both the accused and sentenced each one of them to suffer one month's rigorous imprisonment and pay a fine of Rs. 200 or in default to suffer one month's further rigorous imprisonment.

(3.) On appeal the learned Sessions Judge relying on a decision of this Court in -- 'Emperor v. Harilal', 39 Bom LR 613, came to the conclusion that the evidence adduced against the accused in this case was not sufficient for the purpose of proving a charge of gaming in public against them and accordingly acquitted the accused. In the view of the learned Sessions Judge, who followed -- 'Emperor v. Harilal', the punter was a police agent and the position was not improved by making a 'panch' witness accompany the punter. In his view the find of a marked two rupee note from the possession of accused No. 1 was also not an incriminating circumstance by itself. In respect of the slip exh. 1-C, this is how the learned Judge dealt with it: "No one has tried to explain what is betting in American futures and what Bombay 7 is. The slip does not bear the name of the accused. The figures 2 and 7 are in themselves harmless. They are accompanied by a X which is not explainable. No one has stepped into the witness box to show from his long experience of gambling at Ahmedabad that the slip is a Satta Slip." For these reasons, he came to the conclusion that the conviction of the accused could not be sustained. In other words, relying upon the case of -- 'Emperor v. Harilal', he reversed the order of conviction and sentence passed upon the appellants before him by the learned Magistrate and. ordered them to be acquitted and discharged.