IMPORTANT POINT
The prosecution must prove possession of betting instruments for conviction under the Assam Game & Betting Act, 1970.

JUDGMENT :

Arun Dev Choudhury, J.

1. Heard Mr. I.A Hazarika, learned counsel for the petitioner. Also heard Mr. P Borthakur, learned Addl. PP, Assam.

2. The present application is filed under section 397/401 Cr.P.C assailing the judgment and order dated 05.06.2018, passed by the learned Addl. Chief Judicial Magistrate, Morigaon in GR Case No.1728/2016, whereby the petitioner was convicted under section 14 of the Assam Game & Betting Act, 1970 (hereinafter referred to as ‘Act, 1970’) and was sentenced to undergo RI for six months and to pay a fine of Rs.10,000/-in default, RI for another one month.

3. Being aggrieved, the petitioner preferred an appeal before the learned Sessions Judge, Morigaon in Crl. A No.15/2018, however, the learned Sessions Judge under its judgment and order dated 07.11.2019, dismissed such appeal and upheld the judgment and conviction dated 05.06.2018.

4. Being aggrieved, the petitioner preferred the present revision petition.

5. The prosecution story in brief is that on 13.07.2016 at about 6.00 PM, on a secret information SI Sri Jyotirmoy Dutta went to the shop of Md. Mushaid Ali, who is the father of the petitioner and found the accused petitioner Md. Shah Nawaz Hussain in the acts of selling illegal gambling tickets of ‘teer’ and one illegal book of ‘teer’ and Rs. 1,200/-was seized. Accordingly on the same date FIR was lodged which was registered as Morigaon PS Case No.240/2016, corresponding to GR Case No.1728/2016.

6. After completion of the investigation, the investigating authority submitted charge sheet against the petitioner under section 14 of the Act 1970. Thereafter, the learned court framed charges under section 14 of the Act, 1970 in writing, which was read over and explained to the accused persons, to which the accused pleaded not guilty and accordingly, trial commenced.

7. To bring home the charges, the prosecution examined three witnesses and recorded the statement of the accused under section 313 Cr.P.C. The defence side, however, declined to adduce any evidence and thereafter the impugned judgment was passed.

8. Referring to the evidence of PW-1, PW-2 and PW-3, Mr. Hazarika, learned counsel for the petitioner argues that the proceeding itself was an irregular proceeding, being violative of the provision of the Act, 1970, inasmuch as the evidence of PW-1 did not disclose that he had taken prior authorities by a warrant from the District Magistrate or higher police officer as prescribed, prior to the search, seizure and custody of the petitioner. It is further contended by Mr. Hazarika that the whole prosecution case is based on the evidence of PW-1, who is the investigating officer and the informant and therefore, without there being any corroborative evidence, the learned trial court ought not to have solely relied upon this witness to convict the petitioner. According to Mr. Hazarika, learned counsel for the petitioner, the two independent witnesses i.e., PW-2 & PW-3 did not support the case of the prosecution and therefore, the decision of the learned court is perverse, more particularly for the undue reliance placed upon the evidence of PW-1 whose testimony do not disclose commission of any offece under section 14 of the Act.

9. Per contra, Mr. P Borthakur, learned Addl. PP submits that there is no irregularity in the investigation of the seizure inasmuch as, the investigation was carried out by a higher officer i.e., the Officer-In-Charge of the concerned police station. Mr. Borthakur, learned Addl. PP further submits that the evidence of PW-1 remained unshaken and therefore, the learned courts below has rightly not discarded such evidence. According to them, in all circumstances, an evidence of the IO cannot be discarded only for the reason that he is an official witness and I/O.

10. I have given anxious considerations to the arguments advanced by the learned counsel for the parties and also perused the material available on record.

11. In the backdrop of argument of Mr. Hazarika, more partic