IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 131 of 2001. Judgment reserved on: 10.4.2008 Date of decision: 11.4.2008 Ram Asra ……Petitioner Vs. State of H.P. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. R.K. Gautam, Senior Advocate with Mr. Naveen Bhardwaj, Advocate. For the Respondent : A.K. Bansal, Additional Advocate General. Kuldip Singh, Judge. 1. The petitioner was prosecuted under Section 13A of Public Gambling Act, 1867 ( for short Act) in Criminal Case No.187/3 of 1998 and on 24.11.1999 was convicted and sentenced to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for two months by learned Sub Divisional Judicial Magistrate, Nalagarh. On appeal the conviction and sentence has been maintained by learned Addl. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Sessions Judge, Solan camp at Nalagarh in Criminal appeal No.1-NL/10 of 2000 on 18.7.2001, hence this revision. 2. The prosecution case in brief is that on 4.8.1998 PW-1 ASI Vidya Nand and PW-2 ASI Guler Chand along with constable Mansha Ram and HHG Ram Rattan were on patrolling duty. At bus stand Nalagarh, they saw many persons gathered on the spot and accused shouting that by spending Rs.1/- one can get Rs.75/- . On seeing the police, persons who were gathered there ran away and police caught one person who was shouting. He was searched and interrogated. The police asked the persons to be witness of the search but no body agreed. The search of the accused was conducted, he had one paper slip having some numbers written on it, ball pen and Rs.260/- which were recovered from the accused. These articles were put in a packet and sealed with seal ‘H’ . A rukka Ex.PW-2/A was prepared which was sent to police station where FIR Ex.PA was registered, site plan Ex.PW-2/B was also prepared. On completion of investigation challan was presented and notice of accusation was put to accused under Section 13A of the Act, to which he pleaded not guilty and claimed trial. The prosecution examined two witnesses. The statement of accused was recorded under Section 313 Cr.P.C., in which he plead his innocence. 3. I have heard Mr. R.K. Gautam, Senior Advocate assisted by Mr. Naveen Bhardwaj, Advocate for the petitioner …3… and Mr. A.K. Bansal, learned Addl. Advocate General for the State and gone through the record . On behalf of the petitioner it has been submitted that from reading of Section 13A of the Act , no case is made under Section 13A of the Act against the petitioner on the basis of material on record. It has been submitted that the learned two Courts below have not properly appreciated the case. Legality and propriety of the conviction and sentence recorded by learned trial Court and upheld by learned lower Appellate Court are involved in the present case. On the basis of material on record, the petitioner is entitled to acquittal. On the contrary the learned Addl. Advocate General has supported the impugned judgment and has submitted that after due appreciation of material on record the two Courts below have rightly convicted and sentenced the petitioner. He has submitted that finding of fact has been recorded by two Courts below and therefore, in revision no interference on the finding of fact is permissible. 4. The Section 13A of the Act is reproduced herein below:- “Enhanced punishment if offence under section 13 relates to gaming with figures, etc. – Where an offence committed by any person under section 13 relates to gaming on any figures or numbers or dates to be subsequently ascertained or disclosed, such person shall, notwithstanding anything contained in that section, be liable to fine no exceeding five hundred rupees, or to imprisonment of either …4… description for a term not exceeding six months, or to both”. 5. The prosecution case against the petitioner is that at Nalagarh bus stand, he was shouting that by spending Rs.1/- one can get Rs.75/-. The police has also allegedly recovered paper slip Ex.P-1, ball pen and Rs.260/- from the accused. In the judgment of trial Court as well as judgment of lower Appellate Court reference of Ex.P-1 paper slip has been made. The prosecution case is that on Ex.P-1 certain numbers were written, but Ex.P-1 is not on record nor reference of Ex.P-1 has been mentioned in form ‘B’ list of exhibits attached with judgment of learned trial Court. In these circumstances, it cannot be said that petitioner was using some numbers for the purpose of gambling. It can not be said that the accused by simply shouting that by spending Rs.1/- one can get Rs.75/- has committed offence punishable under Section 13A of the Act. The prosecution case is that many persons were at the bus stand when the accused was caught but no independent witness has been joined during the search of the accused. It is not believable that no one agreed to join the search when accused was caught and searched as claimed by the prosecution. On the basis of material on record, no case against the petitioner under Section 13A of the Act has been made out. The Courts below have not properly appreciated the material on record. The Supreme Court in Pandurang Sitaram Bhagwat vs. State of Maharashtra …5… (2005) 9 SCC 44 has held that in terms of Section 397 of the Code of Criminal Procedure, the correctness, legality or propriety of any finding, sentence or order may fall for consideration of the revisional court. The judgments of the two Courts below under challenge are not inconsonance with law. The view taken by two Courts below from the material on record is also not correct. The inference drawn from evidence on record is wrong. 6. No other point was urged. 7. The result of the above discussion, the revision petition is allowed and judgment of conviction and sentence dated 24.11.1999 passed by learned Sub Divisional Judicial Magistrate, Nalagarh in Criminal Case No.187/3 of 1998 and upheld by learned Addl. Sessions Judge, Solan camp at Nalagarh in Criminal appeal No.1-NL/10 of 2000 dated 18.7.2001 are set aside. The petitioner-accused is acquitted under Section 13A of the Public Gambling Act, 1867,fine if any, deposited by the petitioner, be refunded to him, his bail bonds are discharged. ( Kuldip Singh ) Judge. April 11, 2008 (sks)