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1982 Supreme(Gau) 40
GAUHATI HIGH COURT
N.Ibotombi Singh, J.
Moni Kanta Gogoi -Appellant
Versus
State of Assam -Respondent
Criminal Revision No. 23 of 1977
Decided On : 31-03-1982
B.M.Sarma, D.K.Bhattacharjee, J.Bora, P.C.Cayn, S.S.Rahman
Legal presumptions under Sections 18 and 19 of the Assam Games and Betting Act, 1970 can only be raised if the prosecution proves that 'Teer' is a betting game or sport and that the seized articles are 'instruments of betting' and 'records of betting'.
Headnote:
ASSAM GAMES AND BETTING ACT, 1970 - SECTIONS 18 AND 19 - INTERPRETATION AND SCOPE - LEGAL PRESUMPTIONS - REBUTTABLE INFERENCE - RELEVANT AND PROBATIVE VALUE OF EVIDENCE - 'INSTRUMENTS OF BETTING' AND 'RECORDS OF BETTING' - SEIZURE OF ARTICLES - FACTUAL FINDING - ERRONEOUS CONCLUSION.
Fact of the Case:
The petitioner was convicted under Section 14 of the Assam Games and Betting Act, 1970, for selling 'Teer' tickets. The prosecution relied on Sections 18 and 19 of the Act to raise legal presumptions that the seized articles were 'instruments of betting' and 'records of betting' and that the petitioner had taken part in betting.
Finding of the Court:
The court held that the prosecution failed to prove that 'Teer' game is a betting, as defined in the Act. The court also found that the finding of the trial court that the articles were seized from the possession of the accused was manifestly erroneous.
Issues: 1. Whether the legal presumptions under Sections 18 and 19 of the Act can be raised in the absence of evidence that 'Teer' is a betting game or sport and that the seized articles are 'instruments of betting' and 'records of betting'. 2. Whether the seizure of the articles was made according to law and whether the finding that the articles were recovered from the possession of the accused is erroneous.
Ratio Decidendi: 1. Sections 18 and 19 of the Act set out the circumstances under which rebuttable presumption of law shall be raised, unless the contrary is proved by the accused from whose custody and possession the articles mentioned therein are seized. 2. To invoke the provision of rebuttal legal presumptions under Sections 18 and 19 of the Act, prosecution has to prove the following: (a) 'Teer' is a betting game or sport, as contemplated by the Act; (b) The articles or things seized and the accompanying facts are inherently relevant, and to any rational mind, they would bear a probative or persuasive value in proof of the facts, viz., those articles or things are 'instruments of batting' and 'records of bettings', as defined in clauses (d) and (e) of Section 2 of the Act, and the petitioner had taken part in betting. 3. The prosecution is not relieved of its duty to discharge the burden of proof of existence of requisite facts from which a rebuttable inference r f the existence of other facts, shall be drawn, on the consideration that the Act intended to suppress the evils of betting as a public policy. 4. In the absence of evidence that 'Teer' is a betting game or sport and that the seized articles are 'instruments of betting' and 'records of betting', the legal presumptions under Sections 18 and 19 of the Act cannot be raised.
Final Decision: The court allowed the petition, set aside the conviction and sentence, and acquitted the petitioner.
This Criminal Revision raises an important question on the interpretation and scope of Sections 18 and 19 of the Assam Games and Betting Act, 1970 (hereinafter called the Act). The material facts which give rise to this revision may be briefly stated.
2. Shri Bhola Nath Bhuyan, C.I.D. Sub-Inspector of Police, P.W. 4, arrested the accused, Moni Kanta Gogoi, on 5.12.74, while the latter was selling 'Teer' tickets in a pan-goomti at Dispur. Shri Birendra Chandra Mohanta, another C.I.D. Sub-Inspector of Police, and some others of his staff accompanied P.W. 4, Shri Bhola Nath Bhuyan. Shri Bhuyan seized the following articles by preparing a seizure memo in presence of witnesses from the possession of the accused. The articles are:
(i) one dot pen ;
(ii) One small book of size 3½” x 2" ;
(iii) One piece of carban paper of the same size ; and
(iv) Cash amount of Rs. 109.35
P.W. 2, Jabed Ali, a student, P.W. 3, Reba Saikia, Sub-Inspector of Police, and two others signed the seizure memo as witnesses. After taking the accused into his custody, Shri Bhola Nath Bhuyan lodged on thj same day a report to the Officer-in -Charge Dispur Police Outpost, to register a case under Section 14 of the Act against the accused. The report was forwarded to the Officer-in-Charge, Gauhati Police Station, stating that Shri Bhola Nath Bhuyan, C.I.D. Sub-Inspector, had already taken up investigation. A case was registered against the accused under Section 14 of the Act. On completion of the investigation, a charge-sheet was submitted against the accused to stand his trial before the Chief Judicial Magistrate, Kamrup, Gauhati, Shri P.C. Barthakur.
3. Before the trial court, the accused pleaded not guilty to the charge. Prosecution examined four witnesses to prove its case. The learned Chief Judicial Magistrate, accepting the case of the prosecution, convicted the accused for an offence under Section 14 of the Act with which he was charged and sentenced him to undergo rigorous imprisonment for six months and to- pay a fine of Rs. 1,000/-; and, in default, to undergo further rigorous imprisonment for two months. The accused west in appeal to the Sessions Judge, Kamrup, Gauhati, in Criminal Appeal No. 40 (K-2)/76; but the appeal was dismissed. Hence this revision.
4. Before me two questions were canvassed by the counsel for the petitioner :
(1) Assuming that the factum of recovery of the articles above from the prosession of the accused is established, in the absence of evidence or finding that (a) 'Teer' is a betting game or sport within the meaning of clause (a) of Section 2 of the Act and (b) that the fact so established has neither relevancy nor has it a natural and inherent probative or persuasive value is proof of the fact that the articles found and seized are Instruments of betting' and 'records of betting', as defined in clause (d) and (e) of Section 2 of the Act, no legal presumptions under Sections 18 and 19 of the Act can be raised. Conviction is as such not sustainable in law.
(2) The seizure of the articles has been made according to law; the finding that the articles were recovered from the possession of the accused, is manifestly erroneous not being supported by legal evidence, and perverse. No conviction as such can be sustained.
5. To appreciate the arguments of the counsel of the parties, it will be relevant to refer to clauses (a), (d) and (e) of the definition in Section 2 of the Act :
"(a) "bet" with all its grammatical variations means any money or a valuable security or thing staked by a person on behalf of himself or on behalf of any other person, by himself or through any agent or any person procured or employed acting for or on his behalf, to be lost or won on the happening or determination of an unascertained thing, event or contingency of or in relation to a game or sport and shall include acceptance of a bet.”
"(b) "instruments of betting" includes any board, table, tickets, tokens, coupons, book, khatas, slips and all other things
