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1986 Supreme(Gau) 61
GAUHATI HIGH COURT
S.N.Phukan, J.
Niren Basumatari -Appellant
Versus
State of Assam -Respondent
Criminal Revision No. 113/80
Decided On : 12-05-1986
S.K.Bhuyan, P.C.Gayan, G.Gopal, D.K.Bhattacharjee
To bring home a charge under section 14 of the Assam Game and Betting Act, 1970, for possession of instruments or records of betting, the prosecution must satisfy the court that: 1. The accused was found in possession of articles or things which are used in betting or are used to facilitate betting on a game or sport or such records which contain or might indicate to have any relation to records of betting and such things or instruments must have some nexus or casual connection with betting. 2. The presumption under section 18 of the Act would arise only after the prosecution, by adducing evidence, has proved that the articles or things seized were instruments of betting or records of betting as defined under the Act. 3. Anything was stacked to be won or lost on the happening or determination of an unascertained thing, event, or contingency. 4. While conducting a search for the recovery of articles or things during the investigation, the prosecution must follow the provisions of section 100 of the Code of Criminal Procedure, 1973, which is mandatory.
Headnote:
ASSAM GAME AND BETTING ACT, 1970 - SECTION 14 - POSSESSION OF INSTRUMENTS OR RECORDS OF BETTING - ESSENTIAL ELEMENTS - SEIZURE OF ARTICLES - PROCEDURE - SECTION 100 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - MANDATORY - FAILURE TO COMPLY - EFFECT.
Fact of the Case:
The accused was found selling 'Teer' gambling tickets at Dispur market. He was arrested, and the alleged instruments of gambling were seized. He was charged under section 14 of the Assam Game and Betting Act, 1970, convicted, and sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000. The conviction and sentence were upheld by the lower appellate court, but the sentence was reduced to three months' imprisonment and a fine of Rs. 500.
Finding of the Court:
The High Court held that the seizure of the alleged articles was not made according to the provisions of section 100 of the Code of Criminal Procedure, 1973, and was, therefore, illegal. The court also found that there was no evidence to show that the articles alleged to have been seized had any nexus or casual connection with betting. The court further held that the prosecution did not adduce any evidence to show that anything was stacked to be won or lost on the happening or determination of an uncontained thing, event, or contingency.
Issues: 1. Whether the seizure of the alleged articles was made according to the provisions of section 100 of the Code of Criminal Procedure, 1973? 2. Whether there was any evidence to show that the articles alleged to have been seized had any nexus or casual connection with betting? 3. Whether the prosecution adduced any evidence to show that anything was stacked to be won or lost on the happening or determination of an uncontained thing, event, or contingency?
Ratio Decidendi: 1. The court held that the seizure of the alleged articles was not made according to the provisions of section 100 of the Code of Criminal Procedure, 1973, and was, therefore, illegal. The court relied on the decision of this Court in Ratish Gosh & another, Criminal Revision No. 177/77 (decided on 19.779), where it was held that the provision of section 100 of the Code of Criminal Procedure, 1973, is mandatory and that the failure to comply with the procedure laid down in the said section at the time of seizure of the articles from the possession of the accused rendered the prosecution's case defective. 2. The court held that there was no evidence to show that the articles alleged to have been seized had any nexus or casual connection with betting. The court relied on the decision of this Court in Anil Kundu, Criminal Revision 120/76 (decided on 8.3.1979), where it was held that records and instruments of betting must have some nexus or casual connection with betting and that it is the bounden duty of the prosecution to show that the accused was found in possession of articles or things which are used in betting or are used to facilitate betting on a game or sport or such records which contained or might indicate to have any relation to the records of betting. 3. The court held that the prosecution did not adduce any evidence to show that anything was stacked to be won or lost on the happening or determination of an uncontained thing, event, or contingency. The court relied on the decision of this Court in Debt Bhattacharjee, 1983 Cr.L.J. 1005, where it was held that the purchase of a ticket for a game or sport by itself does not become the act of betting and that the prosecution must establish beyond reasonable doubt that money or valuable security or things are stacked to be won or lost on the happening or determination of an uncontained thing, event, or contingency in relation to a game or sport.
Final Decision: The High Court allowed the petition, set aside the conviction and sentence awarded against the petitioner, and made the rule absolute.
2. The learned Judicial Magistrate, Gauhati found the accused petitioner guilty and convicted him accordingly under the aforesaid section of the Act and sentenced him to rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- by his judgment and order dated 16.6.80 passed in GR Case No. 49/77. The appeal was also dismissed by the learned Additional Sessions Judge, Gauhati vide his judgment and order dated 16.6.80 passed in Criminal Appeal No. 26(K-3)/79. However, the learned lower appellate Court reduced the sentence of imprisonment to three months and fine to Rs. 500 (Rupees five hundred). Hence the present petition under section 397 read with section 401 of the Code of Criminal Procedure, 1973.
3. Mr. D. K. Buattacharjee, learned counsel for the petitioner made there submissions before this Court, namely, that these sure of the alleged gambling articles was not according to that the action of the accused did not amount to taking part in betting and that even if seizure was legal, the alleged seized articles did not give rise to any presumption of betting, as provided under the Act. Mr. Bhattacharjee also drew the attention of this Court to the fact that the alleged seized articles were not produced before the Court by the prosecution.
4. Mr. Gopal, learned public prosecutor submitted that the prosecution has proved the guilt of the accused in the instant case beyond reasonable doubt. Mr. Gopal also placed reliance on the decision of this Court in Ajit Banik (1985) 1 GLR 222, According to learned public prosecutor since the learned lower Courts came to a definite finding that the accused was guilty under the provisions of the Act this Court need not depreciated the evidence on record in this revision petition.
5. I can take judicial notice of the fact that 'Teer' i.e. the game of arrow-shooting or archery is played in an organised manner only in Khasi and Jayantia Hills of the State of Meghalaya. This game is played in an organised and regular manner in and around Shillong, the Capital of Maghalaya and the betting on this game in Meghalaya and in other parts of North-Eastern Region takes place on the basis of the results of the game played at Shillong.
6. I would like to refer to the book " The Khasis'' by P. G. Gurdon which was published in the year 1907. In this book the learned author has given a systematic account of the Khasi and Jayantia people, their manners and customs, their ethnological affinities, their laws and institutions, their religious beliefs etc. at page 55 (re-printed edition 1975) the learned author has described a Khasi archery meeting. According to the learned author the khasis opine that arrow-shooting originated at the beginning of creation, the Khasi Eve (Ka-mci-ka-nong-hukan) bad two sons to whom she taught the toroth late art at the same time she warned them never to lose their tampers over the game. The Khasis have many games, but their principal game is archery, this may be said to be the national game. The men of one village used to challenge those of another. Before the game; umpires were appointed and conditions were laid down. The targets were generally small bundles of grass, called about one feet long and by in diameter fastened on a small pole. Sometimes targets were made from the root of a plant called Ka sob dung. The distances between the targets and the marks-men used to be 40 to 50 yards the side with the greatest number of hits was t
