AHMED BHAT KALWAL Vs. STATE

JUDGEMENT

(1.) AHMAD Bhat Kalwal, Sultan Kalwal, Khaliq Bhat, Sultan Bhat Ghani Khan, Qadir Khan, Nabir Dar, Malla Karim and Hassan Sheikh have been convicted under various provisions of the Gambling Act. Ahmad Bhat has been convicted under Sections 3/4 of the said Act and sentenced to pay a fine of Rs. 25/-. The other accused were convicted under Section 4 of the said Act and all of them excepting Hassan Sheikh were ordered to pay a fine of Rs. 15/-each. Hassan Sheikh was sentenced to pay a fine of Rs. 25/-, and in default of payment of fine ail the accused were ordered to undergo one month's simple imprisonment. On appeal, the learned Sessions Judge, Srinagar, upheld the convictions of the accused persons, but reduced the sentence of fine to Rs. 5/-. All the accused persons have now come up in revision to this Court.

(2.) IT appears that a warrant under Section 5 was issued by the Superintendent of Police, Srinagar, authorising Pt. Dinanath, a Police officer, to enter the house of Ahmad Bhat alias Kalwal s/o Karim Bhat, and to arrest him along with any other persons found gambling there, and also to seize any instruments of gambling found there. He was further authorised to use as much force as was necessary for executing the said warrant and also to effect a search of the house in case the instruments of gambling were kept hidden. Armed with this authority, on 8th Kartik 2007 Pt. Dina Nath went into a house shown in the plan Ex. 2 as the place where gambling was going on, and arrested nine accused persons. He also seized some instruments of gambling and also some cash both from the place where the gambling is alleged to have taken place and also from the persons of the accused. A formal complaint was laid against the accused persons on 25th of Katik 2007.

(3.) NOW to my knowledge there is no police officer of the designation of Afsar Mohtamim Station Maharajgunj. Dina Nath describes himself in a different language. He calls himself as Senior Sub-Inspector of Police S. H. O. Maharajgunj. This is understandable, but to be frank Afsar Mohtamin Station cannot easily be followed. May be that there is another officer by name Dina Nath who is Afsar Mohtamim Station, but there is no evidence on record to show that an officer of the designation of Afsar Mohtamim Station is identical with an officer who describes himself as Senior Sub-Inspector S. H. O. This is an initial defect in the warrant, which could have been easily avoided had the Superintendent of Police who has affixed his signature to the warrant gone through its contents before signing it. Then the warrant contains a direction that the procedure as laid in the Gambling Act should be followed. Now we see that Pt. Dina Nath was authorised to arrest the accused persons in presence of respectable witnesses. But Dina Nath in his statement says only this much that he arrested the accused persons while they were in the act of gambling. True, that the two witnesses, Nur-uD/- in and Ghulam Ahmad Shah who have been produced on behalf of the prosecution say that the accused were arrested in their presence, but about their respectability we have no evidence. No question has been put to them about their respectability, and Pt. Dina Nath also does not say that they were respectable persons. Nur-uD/- in admits that he was not known to Pt. Dina Nath and that he was simply roaming about near Bohri Kadal when he was met by Pt. Dina Nath who told him "just come along with me." The second witness Ghulam Ahmad Shah has been declared hostile by the prosecution. This would certainly not point to the respectability of the two witnesses which is a condition precedent for them to be witnesses of arrest and search.