EMPEROR Vs. BAPTIST DE SOUZA

JUDGEMENT

(1.) THIS is an appeal by one Baptist De Souza who has been convicted of offences under Sections 4 (a) and 5 of the Bombay Prevention of Gambling Act.

(2.) THE appellant, who has described himself as a motor mechanic, lives in room No.25 in Bombay Development Department Chawl No.17 at Worli. Sub-Inspector Tonpe of the Delisle Road Police Station, having reason to suspect that he was using this room for gambling purposes, obtained a warrant for the search of the premises. He then followed the procedure which has come to be common form in these cases. He marked some coins, gave them to one Jairam Mahadev, a bogus punter, and instructed him to lay bets on certain figures at the place of the accused. THE Sub-Inspector and the punter and some constables then proceeded to the Chawl. THE punter was sent upstairs with one of the police constables and the Sub-Inspector waited below. After a few minutes the punter returned and said that the bet was laid. THE Sub-Inspector then went upstairs and found the appellant and another person, who was accused1 No.2 in the case, in room No, 25 It appears that before the Sub-Inspector entered the room, the police constable, who had gone up with the punter, had entered it and arrested the appellant who, according to him, was writing something on a piece of paper. A panchnama appears to have been made in the presence of panchas, but they have not been examined as witnesses. According to the evidence of the Sub-Inspector, the following things were found in the room. THE other accused had seven annas and a pencil with him. In the corner where the appellant was standing, on a shelf there were several coins, including the marked coins, and also a small slip of paper with some figures and names written in pencil in the Marathi language. THE last figures appearing on this piece of paper are figures 5, 2 and 9, which, according to the Sub-Inspector, are the figures on which the punter was told to bet. THEre is also a name which may possibly correspond with the first part of the name of the punter but is hardly legible. THEre is some inconsistency between the evidence of the Sub-Inspector and that of the constable with regard to this piece of paper. THE constable says that when he entered the room, the appellant crumpled up the piece of paper and threw it on the floor. THE Sub-Inspector says, on the other hand, that it was found: on the shelf. THE failure to examine the panchas and to produce independent evidence as to what was found at the raid is a serious omission in this case for reasons which will appear in a moment.

(3.) IT appears from the judgment that the Magistrate did not believe the punter, and in effect he has discarded his evidence. If that is done, the question obviously arises whether there is sufficient evidence to justify the conviction of the accused. IT is clear that the police cannot have it both ways. These bogus punters are usually very unsatisfactory witnesses. IT does not much matter whether they are called accomplices or spies or Police agents. They are usually without employment or business of any kind. The punter in this case says that he is la mill hand, but he admits that he has been without work for seven or eight months, on account of illness, as he says. In fact they are usually rather disreputable people. No doubt it is very difficult to get better evidence, and the police may have to make use of such people, and if their evidence is corroborated and fits in reasonably well with the prosecution case, the Court may be justified in relying on it. But, if the punter is called as a witness and does not support the prosecution case, it is obviously worse than if he was not called at all. In a case like the present the Court is really asked to rely implicitly on the evidence of the police officers, and on the strength of their evidence to assume that things did not happen in the way the punter says but quite differently. The Sub-Inspector was downstairs and can have no personal knowledge of what happened. The constable followed the punter and was standing some little distance from the room, but, as I have said, it was impossible for him to see what happened inside the room, and there is no doubt that in his evidence he has pretended to have seen much more than he actually did.