HARILAL KACHODIMAL JOSHI Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision is by two out of the five accused who were convicted by the trial Magistrate and sentenced to different sentences. The accused No. 1 Harilal Kachodimal Joshi was convicted for the offence under section 4 of the Bombay Prevention of Gambling Act and sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 200, in default of which he was to undergo further rigorous imprisonment for a period of one and half months. The accused Nos. 2, 3, 4 and 5 were found guilty for offences under section 5 of the Bombay Prevention of Gambling Act and were sentenced to rigorous imprisonment for one month each and a fine of Rs. 200 each. In default of payment of fine, each of them was to undergo further rigorous imprisonment for one and half months.

(2.) All the accused filed appeal before the Sessions Judge, Buldaua and in appeal the convictions of all the accused were maintained. As regards the sentences, the sentences of the first two accused, namely, the present applicants, were maintained, but so far as the accused Nos. 3, 4 and 5 are concerned, their sentences of imprisonment were set aside and the sentences of fines were maintained. The accused Nos. 1 and 2, namely, Harilal and Shankerlal, have filed this revision against their convictions and sentences.

(3.) The prosecution case was that the Circle Police Inspector Kamthikar got information that gambling with cards was going on in the house of the applicant Harilal. He, therefore, approached the Sub-Divisional Magistrate for a warrant to search the house of Harilal under section 6 of the Bombay Prevention of Gambling Act and obtained a search warrant under that section authorising him to search the house of the accused. The name of the applicant No. 1 is Harilal son of Kachodimal Joshi and he is a resident of Bajaj Ward in Gondia. That is the address which has been given by him in his statement under section 342, Cr. P. C. Exh. 13. The search warrant given to the Circle Police Inspector under section 6 of the Bombay Prevention of Gambling Act authorised the Circle Police Inspector Kamthikar and his police staff to search the house of 'Hariram Kachodimal Agarwal, Bajaj Ward, Gondia"'. It is alleged by the prosecution that armed with this warrant the police party along with the panchas raided the house in Gondia. After the raid some articles were seized from the house. A seizure memo was prepared, so also a Panchanama. The Panchanama which is at Exh.4 states that on 30-12-64 the panchas were called by Sub-Inspector Pal and that they were informed that gambling is going on in the house of one Harilal son of Kachodimal Joshi, resident of Ansari Ward. Then the Panchanama states that at about 3 p. m, they went to the house of Harilal and the house was raided by the police. At that time, certain amounts were seized from each of the five accused and it appears from the Panchanama that the sums were recovered from them after taking the search of their persons. In this Panchanama also it has been stated that an amount of Rs. 2. 5 P. have been seized from Harilal son of Kachodimal Joshi of Ansari Ward, Gondia. The Panchanama, therefore, clearly shows that the house which was raided was in Ansari Ward though the warrant was to search a house in Bajaj Ward and belonging to one 'Hariram Kachodimal Agarwal'; whereas this house in Ansari Ward which is searched by the police party is said to be of Harilal son of Kachodimal Joshi. Some articles were also seized during the raid and a seizure memo is prepared at that time, which is Exh. 5. The seizure memo also shows that the articles found were seized from the several persons mentioned therein who were said to be in the house of Harilal Kachodimal Joshi, Ansari Ward, Gondia. These two documents, namely, Exhs. 4 and 5, Panchanama and the seizure memo, make it quite clear that the house which was searched was in Ansari Ward, which is a different locality than the Bajaj Ward in respect of which the warrant was issued by the Magistrate.