1
IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS
(PROHIBITION AND EXCISE CASES) AT KHAMMAM
Thursday, this the 7th day of October, 2016
Present: M. Satish Kumar, Spl. Judicial Magistrate of First Class (Prohibition & Excise cases), Khammam.
S.T.C.No.1 of 2016
Between: State through SubInspector of Police, P.S. Khanapuram Haveli … Complainant
And
A1. J.Sada Niranjan, S/o. Ram Chandar, Age. 52 yrs, Inspector CID, R/o. Hno.81109/1, Prashanthi Nagar, Khanapuram. A2: Gurram Jagan, S/o. Satyanarayana, Age. 45 yrs, Agricultural, R/o. Prashanthi Nagar, Khammam. A3: Gudavarthi Nageswara Rao, S/o. Rama Rao, Age. 45 yrs, Business, R/o. Mamilagudem A4: Bellam Venkateswara Rao, S/o. Krishna Murthy, Age. 50 yrs, Business, R/o. VDO's Colony, Khammam. A5:Garimella Srinivasa Chakravarthi, S/o. Krishnarjuna Rao, Age. 48 yrs, Business, R/o. Garuda Trust Flat No. 505, Gunadala , Vijayawada A6: Ravuri Srinivasa Rao, S/o. Venkaiah, Age. 54 yrs, Business, R/o. Bypass road, Khammam. A7: Duddekuru Satyanarayana, S/o. Venkata Narsaiah, Age. 50 yrs, Business, R/o. Rotary nagar, Khammam. A8: Chenna Sampath Kumar, S/o. Narsimha Rao, Age. 46 yrs, Business, R/o. Nehrunagar, Khammam.
... Accused
This case coming before me on 29.09.2016 for final hearing in the presence of A.P.P. for state and of Sri.P.Sanjay Kumar, Advocate for Accused and upon perusing the material papers on record, having heard, stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
Originally this case is on the file of II Addl.Judicial Magistgrate of I class,
Khammam. This case is transferred to this court as per the orders of the Hon'ble
Prl.Distirct and Sessions Judge, Khammam, dt. 12.09.2016 vide Crl.T.P.No.709/2016 with a direction to dispose the case as early as possible.
2.The SubInspector of Police, P.S. Khanapuram Haveli has filed charge 2 sheet against the Accused Nos. 1 to 8 stating that on credible information on 0106 2016 at 700 p.m. Lw1 Ch.Sridhar, Inspector of police, Lw2 K.Suresh Kumar, Sub
Divisional Police Officer, Khammam along with Lw3 H.Balu and LW4 M.Rama
Krishna gun mens raided at the house of accused No.1 J.Sada Niranjan, Inspector of
Police, CID, Khammam vide H.NO.81109/1, Prashanthi Nagar, Khammam. There they found 8 persons who were accused Nos.1 to 8 herein playing the play cards with betting of money in the said house and they are using the said house as common
Gaming house. Then they seized the cash of Rs.2,000/ from the possession of A1,
Rs.12,000/ and 2 cell phones (Samsung4G white colour and Samsungh White phone) from the possession of A2, Rs.35,000/ and one Apple 6 i phone and one scoda car bearing No. AP20AP 0036 of silver colour from the possession of A3,
Rs.77,000/ and one Apple4G cell phone from the possession of A4, Rs.5,400/ and one apple6 gold colour cell phone and one innova car bearing No. AP 16CE 7889 from the possession of A5, Rs.3,000/ and one silver colour samsung cell phone from the possession of A6, Rs.4,000/ and one samsung4G gold colour cell phone from the possession of A7, Rs.39,000/ and one apple5 black colour cell phone from the possession of A8( total cash is of Rs.1,77,400/), playing cards (153 ). Then they secured two mediators Lw.10 P.Seetharamulu and Lw11 Sk.Meera Sahib and in their presence police seized the said cash, cell phones, cars and playing cards under the cover of panchanama. On enquriy the accused Nos.1 to 8 confessed that they are friends and they have been playing cards by betting the amount. Then the police taking the custody of accused Nos.1 to 8 and seized the property to the police station and handed over to Lw12, K.Rama Rao. Basing on the panchanama he registered the case in Cr.No.269/2016 for the offence punishable under Sec. 3, 4, 6 and 9 of AP 3
Gaming Act. and issued FIR and conducted investigation. During the course of investigation LW12 SI of police served Sec. 41 Cr.P.C. notice to the accused and released and directed them to appear when ever their presence is required. During the course of investigation on 02.06.2016 SI of police (LW12) visited the scene of offence and conducted the CDF in the presence of mediators and recorded sec.161
Cr.P.C statements of LW1 Ch.Sridhar, LW2 KI.Suresh Kumar, LW3 H.Balu, LW4
M.Rama Krishna, LW5 Sattu Rama Devi, LW6 M.Nagamani, Lw7 Persani
Sudharshan Rao, LW8 P.Nagamani, LW9 R.Rambabu. After completion of investigation he filed charge sheet against the Accused Nos.1 to 8.
2.After filing charge sheet for the offence punishable under section 3 r/w 6 and Sec. 4 of AP Gaming Act against Accused No.1 and Sec. 3, 4 r/w 6 of AP
Gaming Act. against accused Nos.2 to 8 was taken on cognizance of and process was issued against the Accused. On appearance of Accused, copies of documents were furnished to the them as required under section 207 Cr.P.C. They were examined under section 251 Cr.P.C. by explaining the accusation leveled against them for the punishable offence under sections 3 r/w 6 and Sec. 4 of AP Gaming Act against
Accused No.1 and Sec. 3, 4 r/w 6 of AP Gaming Act. against accused Nos.2 to 8.
3.To bring home the guilt of the accused, Prosecution examined PWs.1 to 12 and got marked Ex.P1 to 16 and MO1 is the seized cash of Rs.1,77,400/, MO 2 is the Playing cards (153). MO3 is the cell phones (8 in nos) i.e., four Samsung phones , Letv cell phone, three apple phone cell phones, MO4 is the two vehicles i.e., Innova bearing No. AP16CE 7889 and Scoda car bearing No. AP20AP 0036.
Ex.P1 is the confession cum seizure panchanama. Ex.P2 is the Sec. 161 Cr.P.C.
4 statement of PW4. Ex.P3 is the Sec. 161 Cr.P.C. statement of PW5., Ex.P4 is the Sec.
161 Cr.P.C. statement of PW6, Ex.P5 is the Sec. 161 Cr.P.C. statement of PW7, Ex.P6 is the Sec. 161 Cr.P.C. statement of PW8, Ex.P7 to P9 are the signatures of PW10 on confession cum seizure panchanama of Accused Nos.1 to 8, Ex.P10 is the Signature of Pw10 on CDF., Ex.P11 to P13 are the signatures of PW11 on confession cum seizure panchanama of Accused Nos.1 to 8, Ex.P14 is the Signature of Pw11 on CDF.,
Ex.P15 is the FIR, Ex.P16 is the CDF.
4. After closure of the prosecution evidence the accused were examined under section 313 Cr.P.C. with reference to the incriminating substance appeared in prosecution evidence, for which the accused denied the same and reported no defence evidence.
5.Heard arguments.
6.Now the Point for consideration is:
“Whether the prosecution has brought home the guilt of the accused for the offence punishable under Sec. 3 r/w 6 and Sec. 4 of AP Gaming Act against Accused No.1 and Sec. 3, 4 r/w 6 of AP Gaming Act. against accused Nos.2 to 8. beyond all reasonable doubt?”
POINT :
7.The case of prosecution is that on 01.06.2016 on reliable information
Pws.1 to 4 conducted raids at the house bearing No.81109/1, Prashanthi Nagar,
Khammam at about 700 pm and apprehended the accused Nos.1 to 8, while they were playing cards by betting amount and then Pws.1 and 2 seized the cash of
Rs.2,000/ from the possession of A1, Rs.12,000/ and 2 cell phones (Samsung4G white colour and Samsung White phone) from the possession of A2, Rs.35,000/ 5 and one Apple 6 i phone and one scoda car bearing No. AP20AP 0036 of silver colour from the possession of A3, Rs.77,000/ and one Apple4G cell phone from the possession of A4, Rs.5,400/ and one apple6 gold colour cell phone and one innova car bearing No. AP 16CE 7889 from the possession of A5, Rs.3,000/ and one silver colour samsung cell phone from the possession of A6, Rs.4,000/ and one samsung4G gold colour cell phone from the possession of A7, Rs.39,000/ and one apple5 black colour cell phone from the possession of A8( total cash is of
Rs.1,77,400/), playing cards (153), thereby the accused committed the offence punishable under Secs. 3,4, 6 and 9 of AP Gaming Act.
8.To prove its case prosecution examined Pws.1 to 12. PW1 is the
Inspector of police who conducted raid along with Pw2 at the house of accused No.1.
Pw1 deposed that on 01.06.2016 he received reliable information regarding playing cards at about 630 pm, then he informed the same to PW2 SubDivisional Police
Officer, for obtaining the search warrant but Pw2 accompanied with Pw1 to the scene of offence and PW1, Pw2 and their staff i.e. Gunmen (Pws.3 and 4), proceeded to the house bearing No.81109/1 at Prashanthi Nagar there they found 8 persons were playing cards and found cash. Then they secured two mediators (Pws.10 and
11) and in their presence they seized the cash of Rs.2,000/ from the possession of
A1, Rs.12,000/ and 2 cell phones (Samsung4G white colour and Samsung White phone) from the possession of A2, Rs.35,000/ and one Apple 6 i phone and one scoda car bearing No. AP20AP 0036 of silver colour from the possession of A3,
Rs.77,000/ and one Apple4G cell phone from the possession of A4, Rs.5,400/ and one apple6 gold colour cell phone and one innova car bearing No. AP 16CE 7889 from the possession of A5, Rs.3,000/ and one silver colour samsung cell phone from 6 the possession of A6, Rs.4,000/ and one samsung4G gold colour cell phone from the possession of A7, Rs.39,000/ and one apple5 black colour cell phone from the possession of A8( total cash is of Rs.1,77,400/), playing cards (153 ). PW1 further deposed that on enquiry A1 to A8 stated that they are friends and they playing cards by betting money. Pw1 further deposed that on his dictation their police constable by name Jayaraju drafted the panchanama. He further deposed that he cannot identify the accused Nos.1 to 8 and be brought the accused along with seized property to police station and handed over to PW12 SI of police.
9.During the course of crossexamination Pw1 deposed that PW3 is Gun men of PW2 and PW4 is his gunmen. Pw1 admitted that the scene of offence locality is the busy locality area. He pleaded ignorance that the scene of offence area is residential locality, but he secured the mediators Pws.10 and 11 who are not belongs to that area and they are residents of 5 km away from the scene of offence. PW1 denied the suggestion that he did not conducted search at the house bearing No. 18 109/1 and did not seized MOs1 to 4 from the possession of accused at the said house . The learned counsel for the accused suggested that while A1 to A8 are proceeding on the vehicle near Sri Sri statue, at that time their constable stopped the vehicles of the accused there some alteration was took place between the accused and their constable, by keeping the same they foisted a false this case against the accused Nos.1 to 8 but Pw1 denied the said suggestion he further denied the suggestion that they illegally seized the said cash from the pockets of the accused and cell phones and cars from the possession of accused. PW1 admitted that the scribe of the panchanama by name Jayaraju, who is writer in their police station .
Pw1 denied the suggestion the in the panchanama of Ex.P1 was prepared at police 7 station.
10.PW2 is the SubDivisional Police Officer, who participated in the raid along with Pw1 deposed that on 01.06.2016 on credible information regarding playing cards, then he along with Pw1 proceeded to scene of offence along with their staff i.e., Gunmens (Pws.3 and 4) the house bearing No.81109/1 at Prashanthi
Nagar and entered the said house, there they found 8 persons were playing cards and found cash. Then they secured two mediators (Pws.10 and 11) and PW1 conducted personal search of A1 to A8 and they searched the room and seized the cash of Rs.2,000/ from the possession of A1, Rs.12,000/ and 2 cell phones (Samsung4G white colour and Samsung White phone) from the possession of A2,
Rs.35,000/ and one Apple 6 i phone and one scoda car bearing No. AP20AP 0036 of silver colour from the possession of A3, Rs.77,000/ and one Apple4G cell phone from the possession of A4, Rs.5,400/ and one apple6 gold colour cell phone and one innova car bearing No. AP 16CE 7889 from the possession of A5, Rs.3,000/ and one silver colour samsung cell phone from the possession of A6, Rs.4,000/ and one samsung4G gold colour cell phone from the possession of A7, Rs.39,000/ and one apple5 black colour cell phone from the possession of A8( total cash is of
Rs.1,77,400/), playing cards (153 ). Pw2 further deposed that PW1 conducted the
Ex.P1 panchanama in the presence of Pws.10 and 11 under the cover of panchanama. and he signed on Ex.P1 panchanama. Later they brought the accused and seized property to police station. Pw2 further deposed he not able to identify the accused the A1 to A8 before the court as he saw them first time on the date of incident only
11.During the crossexamination Pw2 deposed that he received information 8 regarding this offence at about 630 pm on that day and immediately he informed to
Pw1. He did not served the copy of search warrant to the house owner or inmates of the said house . PW2 also admitted that the scene of offence area is busy residential locality area and PW2 further admitted that Pws.10 and 11 mediators are not residents of the scene of offence locality. He also admitted that the scene of offence locality is near to Yellandu Road. Pw2 deposed that at the time of conducting raid the neighbouring persons of the scene of offence also available. PW2 further deposed that he (PW2) and PW1 , Pws.3 and 4 only went to the scene of offnece.
PW2 denied the suggestion that they did not seized Mos.1 to 4 from the possession of accused Nos.1 to 8 at the alleged scene of offence. The learned counsel for the accused suggested to PW2 that while A1 to A8 were proceeding in their vehicles near
Sri Sri statue, at that time their constable stopped the vehicles of the accused and there some alteration was took place between the accused and their constable, by keeping the same they foisted a false this case against the accused Nos.1 to 8, but
Pw2 denied the said suggestion, Pw2 denied the said suggestion that they illegally seized the said cash from the pockets of the accused and cell phones and car from the possession of accused. PW2 denied the suggestion that the panchanama was drafted at the police station with their writer by name Jayaraju constable.
12.Pw3, who is the constable, and Gun man of Pw2 deposed that on 01.06.2016 he acco mpanied with PW2 and went to the house situated on the back side of electricity office at about 130 p.m. there they found 8 persons were playing cards and they also found cash of RS. 1,77,400/ and 153 playing cards. He further deposed that the said 8 persons are A2, A3, A6, A1, A5, A7 herein and other two persons. There they also found two cars, but he cannot say the registration numbers 9 of the cars, they also found 8 cell phones. Then they apprehended the said 8 persons brought them to police station along with seized property and handed over to SHO
Khanapuram haveli. But he could not identify A1 to A8 who were present in the court. During the crossexamination PW3 denied the suggestion that they did not went to scene of offence and did not conducted the search in the said house and did not seized MOs.1 to 4 from the possession of accused at the scene of offence. The learned counsel for the accused suggested that A1 to A8 are proceeding on the vehicle near Sri Sri statue, at that time their constable stopped the vehicles of the accused there some alteration was took place between the accused and their constable, by keeping the same they foisted a false this case against the accused
Nos.1 to 8 but Pw3 denied the said suggestion denied the suggestion that they illegally seized the cash from the pockets of the accused and cell phones and cars from the possession of accused. And denied the suggestion that the panchanama was drafted at the police station by their writer by name Jayaraju constable.
13.Pw4, who is the constable and Gun man of Pw1 deposed that on 01.06.2016 on reliable information received by PW1 their CI regarding playing cards at Prashanthinagar, Khammam, then he accompanied with PW1 at about 600 pm they proceeded to the the scene of offence to one house, but he cannot say the house number of the said house. There they found 8 persons were playing cards, the said 8 persons are the A1, A2, A6, A5, A3, A7, A8, herein and other one person. Then they seized the cash of Rs.1,77,400/, 8 cell phones, playing cards 153 and two cars under the cover of panchanama in the presence of Pws.10 and 11 mediators. Then they apprehended the said 8 persons brought them to police station along with seized property and handed over to SHO Khanapuram haveli. But he cannot identified A1 10 to A8 who were present in the court.
14. During the crossexamination PW4 denied the suggestion that they did not went to scene of offence and did not conducted the search in the said house and did not seized MOs.1 to 4 from the possession of accused at the scene of offence.
The learned counsel for the accused suggested that A1 to A8 are proceeding on the vehicle near Sri Sri statue, at that time their constable stopped the vehicles of the accused there some alteration was took place between the accused and their constable, by keeping the same they foisted a false this case against the accused
Nos.1 to 8 but Pw4 denied the said suggestion He further denied the suggestion that they illegally seized the said cash from the pockets of the accused and cell phones and car from the possession of accused. PW1 denied the suggestion that the panchanama was drafted at the police station their police station writer by name
Jayaraju constable.
15.PW 5 said to be one of the eye witness to the alleged offence, she deposed that she do not know anything about facts of the case and she did not stated anything against the accused. The learned A.P.P declared the witness as hostile. The learned A.P.P. Crossexamined the witness with reference to her Sec. 161 Cr.P.C.
statement marked as Ex.P2, but nothing was elicited in favour of prosecution in her cross examination.
16. PW 6 said to be one of the eye witness to the alleged offence, she deposed that she do not know anything about facts of the case and she did not stated anything against the accused. The learned A.P.P declared the witness as hostile. The learned A.P.P. Crossexamined the witness with reference to her Sec. 161 Cr.P.C.
statement marked as Ex.P3, but nothing was elicited in favour of prosecution in her 11 cross examination.
17.PW7, who is said to be the neighbour and eye witness to the alleged offence, he also did not supported the case of prosecution. The learned A.P.P declared the witness as hostile. The leanred A.P.P. Crossexamined the witness with reference to her Sec. 161 Cr.P.C. statement marked as Ex.P4, but nothing was elicited in favour of prosecution in her cross examination.
18.PW8, who is said to be the tenant of the house of accused No.1 and who is also an eye witness to the alleged offence, she also did not supported the case of prosecution. She deposed that she do not know anything about the facts of the case.
The learned A.P. P declared the witness as hostile. The learned A.P.P. Crossexamined the witness with reference to her Sec. 161 Cr.P.C. statement marked as Ex.P5, but nothing was elicited in favour of prosecution in her cross examination.
19.PW9, who is said to be the tenant in the house of accused No.1 and eye witness to the alleged offence, he also did not supported the case of prosecution. He deposed that he do not know anything about the facts of the case. The learned A.P.P declared the witness as hostile. The learned A.P.P. Crossexamined the witness with reference to her Sec. 161 Cr.P.C. statement marked as Ex.P4, but nothing was elicited in favour of prosecution in his cross examination.
20.Pws.10 and 11 are the mediators for the recovery of the MOs1 to 4 and confession statements of the accused Nos.1 to 8 and CDF. But they did not support the case of prosecution. PW10 deposed that on 01.06.2016 when he proceeding on the road near Khanpuram Haveli police station, then the police called him and obtained his signature on blank papers without disclosing anything. Police did not conducted any panchanama police did not seized anything and accused did not 12 confessed anything in his presence. PW11 deposed that on 01.06.2016 while he was went to the Khanapuram Haveli Police station on his personal work, then the police called him and obtained his signature on blank papers without disclosing anything.
Police did not conducted any panchanama and did not seized anything and accused did not confessed anything in his presence.
21.PW12, who is the investigating officer deposed that On 01.06.2016 he was SHO in Khanapuram Havel Police Station, at about 830 pm PW1 brought the
Accused Nos.1 to 8 along with seized property i.e., MOs1 to 4 , panchanama and handed over to him. Basing on the panchanama he registered the case in
Cr.269/2016, under sec. 3, 4, 6 and 9 of AP Gaming Act. and issued FIR. He further deposed that he examined and recoded the Sec. 161 Statements of PW1, PW2, PW3,
PW4. And he served the notice under Sec. 41 Crpc notice to A1 to A8 and they released on bail. On 02.06.2016 he visited the scene of offence i.e., house of
Accused No.1, secured tow mediators PW10 and PW11 and conducted CDF in the presence of above said mediators. He also examined and recorded the Sec. 161
Cr.P.C. statements of Pws.5 to 9. After completion of investigation he filed charge sheet.
22.During the crossexamination PW12 admitted that PW1 did not lodged any report to him against A1 to A8 and he did not examine the scribe of Ex.P1 panchanama by name Jayaraju. PW12 admitted that the scribe of Ex.P1 panchanama by name Jayaraju is the writer of their police station. He also deposed that he is not collected any ownership certificate from the municipality with regard to the scene of offence house. Pw12 admitted that the mediators PWs.10 and 11 are not residents of the scene of offence locality and their house is situated at a distance 13 of 5 km from the scene of offence. Pw12 denied the suggestion that he drafted the panchanama and CDF in their police station. He denied the suggestion that the accused were not found while they were playing cards and they did not confessed anything in his presence. The learned counsel for the accused suggested that A1 to
A8 are proceeding on the vehicle near Sri Sri statue, at that time their constable stopped the vehicles of the accused there some alteration was took place between the accused and their constable, by keeping the same they foisted a false this case against the accused Nos.1 to 8 but PW12 denied the suggestion. PW12 denied the suggestion that they illegally seized the cash from the pockets of the accused and cell phones and cars from the possession of accused. PW1 admitted that the panchanama was drafted at the police station with their writer by name Jayaraju constable. He also deposed that they planted MO2 in this case and falsely implicated the accused in this case.
23.The prosecution charged the accused No.1 for the offences punishable under Sec. 3 r/w 6 and Sec. 4 of AP Gaming Act against Accused No.1 and Sec. 3, 4 r/w 6 of AP Gaming Act. against accused Nos.2 to 8.
Sec. 2(1) defines the common gaming house means:
(i) in the case of gaming
a) On a horserace except in the manner provided in clause(2) or
b) on the market price of cotton, bullion or other commodity or on the digits of the number used for stating such price; or
c) on the ground of variation in the market price of any commodity specified in item (b) or on the digits of the number used for stating the amount of such variation ; or 14
d) on the market price of stock or share or on the digits of the number used for stating such price ; or
e) on the number of registration or on the digits of the number of registration of any motor vehicle using a public place ; or
f) on any transaction or scheme of wagering or betting in which the receipt
or distribution of winnings or prizes, in money or otherwise, is made to depend
on chance:
any house, room, tent, enclosure, vehicle, vessels or any place whatsoever in
which the gaming takes place or in which the horses or other instruments of
gaming , are the kept or used for such gaming;
ii) in the case of any other form of gaming , any house, room, tent,
enclosure, vehicle, vessel or any place what so ever in which any instruments of
gaming are kept or used for the profit or gain of the person owning, occupying,
using or keeping such house, room, tent, enclosure, vessel, or place, whether by way of charge for the use of such house, room , tent , enclosure, vehicle, vessel or place or instruments of gaming or otherwise howsoever;
Explanation: : For the purposes of SubClause(ii), any premises or place
belonging to or occupied by a club, society or other association of persons
whether incorporated or not, which is used or kept for purposes of gaming shall
be deemed to be a common gaming house notwithstanding that there is no profit
or gain for the club, society or other association of persons on account thereof ;
(2) 'gaming' means playing game for winning of prizes in money or other wise
and includes playing a game of mukta or satta and lucky board and wagering or
betting; except whether such wagering or betting takes place upon a horse race
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i) on the day on which the horse race is to be run; ii) in an enclosure which the stewards controlling the horserace have, with the sanction of the government set apart for the purpose; and iii) a) with a licensed book maker; or
b) by means of a totalisator; but does not include a lottery.
Sec. 4 : “Instruments of gaming” include cards, dice, gaming table, or clothes,
boards or any other articles used or intended to be used as a subject or means of
gaming any document used or intended to be used as a register or record or
evidence of any gaming, the proceeds of any gaming and any winnings or prizes
in money or otherwise, distributed or intended to be distributed in respect of any gaming.
Sec. 3 Penalty for opening etc., a common house:
1) Any person who opens, keeps, or uses or permits to be used any common
gaming house or conducts or assists in conducting the business of any common
gaming house or advances or furnishes money for gaming therein, shall be
punishable
i) for the first offence, with imprisonment for a term which may extent to
six months and with fine which may extend to one thousand rupees; but in the
absence of special reasons to be recorded in witting, the punishment awarded
under this clause shall be imprisonment for not less than one month and fine not less than five hundred rupees;
ii) for every subsequent offence, with imprisonment for a term which may extend
to one year and with fine which may extend to two thousand rupees but in the
16
absence of special reasons to be recorded in witting the punishment awarded
under this clause shall be
a) for a second offence, imprisonment for not less than three months fine of not less than one thousand rupees;
b) for a third or subsequent offence, imprisonment for not less than six months and fine of not less than one thousand.
Explanation: For the purpose of this section, the expression “Person” includes the
owner, or as the case may be the occupier of the place used as a common gaming
house and where such place belongs to or is occupied by a club, society or other association of persons, the persons having the care or management of such place.
(2) It shall not be necessary, in order to convict any person for opening, keeping
or using or permitting the use of common gaming house or of being concerned
with the care or management of a common gaming house, to prove that any
person found therein was gaming for money, wager, bet or stake.
Sec. 5 : Power to grant warrant to enter common gaming house , etc: (1) If any salarised Judicial or Executive Magistrate, or any police officers not
below the rank of an Assistant Commissioner of Police, Hyderabad and a Deputy
Superintendent of Police elsewhere has reason to believe that any place is used as
a common gaming house, he may by his warrant give authority to any police
officer not below the rank of SubInspector
i) to enter with such assistance as any be found necessary, at any time and by force, if any necessary and any such place; ii) to arrest all persons found therein; iii) to search all such persons and all parts of such places; and 17 iv) to seize
a) all moneys found with such persons;
b) all instruments of gaming; and
c) all moneys, all securities for money and articles of value reasonably suspected
to have been used or intended to be used for the purpose of gaming which are
found in such place.
(2) Any police officer having the power to issue a warrant under subsection(1)
may, instead of doing so, himself exercise all or any of the powers exercisable
under such warrant.
24.As per the prosecution A1 to A8 are found playing cards by betting cash at the house bearing No.81109/1, Prashanthi Nagar, Khammam, which belongs to the accused No.1. Though Pw1 inspector of police and PW2 SubDivisional Police officer, who participated in the raid deposed that they conducted raid in the house bearing No.81109/1, there they found A1 to A8 were playing cards, but the evidence of Pw3 and 4 who were the gunmen of the Pws.2 and 1 respectively, they did not stated the House number and they also not stated that the said house belongs to whom, and PW1 to 4 did not stated that the said house belongs to the accused
No.1 or it is in the occupation of accused No.1 Whereas the investigating officer,
PW12 deposed that he did not collected any certificate from the municipal authorities with regard to the ownership of the said house. Whereas Pw.12 deposed that on 02.06.2016 he visited the scene of offence by securing two mediators Pws.10 and 11 and conducted CDF in their presence, but in the CDF also not mentioned that the said house is belongs to accused no.1 and the prosecution not filed documentary evidence to show that the said house bearing No. 18109/1, Prashanthi nagar, 18
Khammam is belongs to A1 or in the occupation of accused No.1 . Though the prosecution examined the eye witnesses Pws.5 to 7, for the alleged offence and
Pws.8 and 9 said to be the tenants of the house of accused No.1, the eye witnesses but they also not supported the case of prosecution. They deposed that they do not know anything about the facts of the case. Therefore, the evidence of Pws.5 to 9 is also no way help full to the case of prosecution. More over, the evidence of Pws.10 and 11 are also not supported the case of prosecution. Hence, the allegations against the accused No.1 is that he opens, permits his house is common gaming house, as such, Sec. 3 of AP Gaming Act. is not proved against the accused No.1.
25. Sec. 6 of AP Gaming Act is instruments of gaming found in place entered or searched under sec. 5 to be evidence that the place is common gaming house.
Where any instruments of gaming are found in any place entered or
searched under the provisions of section 5, on or about the person found therein,
it shall be presumed that such place is used as a common gaming house and that
the persons found therein were present there for that purpose of gaming
although not gaming was actually seen by the police officer or any of his
assistants.
As per Sec. 2(2) of 'gaming' means playing game for winning of prizes in money or other wise.
Therefore, the prosecution has to prove that the means of playing
game is for winning of prize in money or otherwise playing and winning of
money.
Sec. 15: Savings of games of skill: Nothing in this Act shall apply to 19 games of skill only wherever played.
26. According to PW1 and 2 the accused Nos.1 to 8 are found while playing cards they individually seized the cash of Rs.2,000/ from the possession of A1,
Rs.12,000/ and 2 cell phones (Samsung4 G white colour and Samsung White phone) from the possession of A2, Rs.35,000/ and one Apple 6 i phone and one scoda car bearing No. AP20AP 0036 of silver colour from the possession of A3,
Rs.77,000/ and one Apple 4 G cell phone from the possession of A4, Rs.5,400/ and one apple6 gold colour cell phone and one innova car bearing No. AP 16CE 7889 from the possession of A5, Rs.3,000/ and one silver colour samsung cell phone from the possession of A6, Rs.4,000/ and one samsung4G gold colour cell phone from the possession of A7, Rs.39,000/ and one apple5 black colour cell phone from the possession of A8. PW2 categorically deposed that Pw1 conducted personal search of accused and seized the above described property from each person. More over, if at all the accused found while playing cards by betting money certainly there would be seizure of the lum sum amount, Generally while playing cards each player will contribute some amount and kept the same in pool, then they will play the game. But in this case as per the evidence of Pw2, Ex.P1 panchanama and evidence of Pw1 they seized the said cash from each individual separately. In this case, Pws.1 and 2 also sized the cell phones and cars. MOs3 and 4 which are not instruments in gaming. The evidence of Pws.1 and 2 is silent that the seized amount i.e., MO1 is a pool amount kept by the accused persons at the time of playing cards on the table or on the floor. The prosecution also failed to prove that how much amount contributed by each of the accused in the game. The MO1 is seized cash individually seized from each accused, as such, it cannot be said that the said 20 amount used or to intends to use for the purpose of Gaming by the accused. More over, the evidence of Pws.1, 2 and 12 is silent that which game the accused were playing with the cards at the time of alleged raid at the scene of offence. As Sec. 15 of AP Gaming Act if the game is require skill then the AP Gaming Act is not applicable. The prosecution also failed to prove that the accused were playing the game for winning of the prizes in money or other wise as defined under Sec. 2 of AP
Gaming Act.
27. More over, as per the evidence of Pws.1 and 2 and prosecution case that only Pws.1 to 4 went to the scene of offence conducted raid, whereas, on seeing the
Ex.P1 panchanama it shows that it was drafted by V.Jayaraju PC No. 1808. Pws.1 and 2 are also admitted that Ex.P1 scribed by Jayaraju Constable. PW12 also admitted about the said fact that the Ex.P1 was scribed by their constable Jayaraju writer of their police station, but he did not examine the said Jayaraju. More over, as per the evidence of PW12 that he visited the scene of offence on 02.06.2016 and conducted CDF/Ex.P16 in the presence very same mediators i.e., Pws.10 and 11 who were also mediators for Ex.P1 panchanama, which was conducted on 01.06.2016 , but Pws.10 and 11, not supported the prosecution case. They also deposed that police obtained their signatures at police station and police did not seized anything in their presence and police did not conducted any panchanama and
CDF.. The counsel for accused argued that the panchanama was drafted at the police station and said suggestion also given to Pws.1,2,, and 12, they denied the same.
The nonexamination of the scribe, who is writer by name Jayaraju in the said police station is fatal to the case of prosecution. The prosecution also not proved that the writer came to the scene of offence. Therefore the preparation of Ex.P1 panchanama 21 at the scene of offence itself doubtful and there is probability in the contention of the counsel for accused that it was prepared at police station. The said writer signed as scribe on Ex.P1, but the scribe not shown as witness in this case. Thus, the contents of Ex.P1 has not proved.
28.As seen from the FIR Ex.P15, the occurrence of the offence is at about 7 00 p.m. on 01.06.2016, the information received to police station at about 830 pm.
Admittedly, the FIR sent to the court/Magistrate on 02.06.2016 at 1200 noon, the distance between the Khanapuram Haveli police station and Court is 1 km . The delay in sending the FIR to Court also creates doubtful, about the preparation of the panchanama at the scene of offence and the delay is not explained by the evidence of prosecution witnesses.
29.More over, whereas PW1 deposed that he secured the mediators who were found infront of the house of scene of offence, but admittedly the mediators,
PWs.10 and 11 are not belongs to the area of scene of offence locality. He pleaded ignorance that at the scene of offence locality is busy locality and residential area, but PW1 secured the mediators Pws.10 and 11 at 5 km distance from the scene of offence. Pw2 also admitted that the Pws.10 and 11 are the not residents of neighboring house of scene of offence, but as per evidence of PW2 there are neighbours available by the time of alleged raid. Pws.1 and 2 are not explained why they are not secured the mediators at the scene of offence locality persons, though the persons are available near the scene of offence at that time. The eye witness who are Pws. 5 to 9 examined by the prosecution, but they did not support the case of prosecution. Therefore, the Ex.P1 panchanama is not proved. Mover over, the prosecution has also failed to prove that the accused playing cards and winning of 22 the said game is depend on chance.
30.The Hon'ble Supreme Court of India reported in a Judgment, 1968 AIR 825 State of Andhra Pradesh Vs. K.Satyanarayana and others held that :
“The game of Rummy is not a game entirely of chance like the 'three- card' game mentioned in the Madras case to which we were referred. The 'three card' game which goes under different names such as 'flush', 'brag' etc. is a game of pure chance. Rummy, on the other hand, requires certain amount of skill because the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of Rummy is a game of entire chance. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out, there is an element of chance, because the distribution of the I cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone it cannot be said that Rummy is a game of chance and there is, no skill involved in it. Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of Rummy or any other game played for stakes, the offence may be brought home. In this case, these elements are missing and therefore we think that the High Court was right in accepting the reference it did.”
31.Therefore, if the accused were playing rummy it does not come under the offence under AP Gaming Act, and the prosecution failed to prove that which game the accused were playing by the time of alleged raid .
32.As per the above discussion, the prosecution failed to prove the guilt of the accused for the offence under Sec. 3 r/w 6 and Sec. 4 of AP Gaming Act against
Accused No.1 and Sec. 3, 4 r/w 6 of AP Gaming Act. against accused Nos.2 to 8 and they are entitled for acquittal.
33.In the result, the accused No.1 is found not guilty for the offence punishable under Sec. 3 r/w 6 and Sec. 4 of AP Gaming Act and Accused Nos.2 to 8 are not found guilty for the offence punishable under Sec. 3, 4 r/w 6 of AP Gaming
Act. and accordingly, they are acquitted under section 255 (1) Cr.P.C. for the above 23 said offence. The bail bonds of the Accused shall stands cancelled. MO1 cash of
Rs.1,77,400/ shall be confiscated to state. MO.2 is destroyed after expiry of appeal time. The interim custody of MOs.3 and 4 eight cell phones and two cars respectively shall made absolute, after expiry of appeal time.
Dictated to the Stenographer (GradeII), transcribed by her, corrected
and pronounced by me, in the open Court on this the 7th day of October, 2016.
Spl.Judicial Magistrate of First Class (Prohibition & Excise cases) Khammam
APPENDIX OF EVIDENCE
WITNESS EXAMINED
For Prosecution For Accused : NONE
PW1 Ch.Sridhar, Inspector of police PW2 K.Suresh Kumar, SubDivisional Police officer. PW3 H.Balu, PC PW4 M.Rama Krishna, PC PW5 Sattu Rama Devi, PW6 M.Nagamani, Pw7 Persani Sudharshan Rao, PW8 P.Nagamani, PW9 R.Rambabu. PW10 P.Seetharamulu PW11 Sk.Meera Saheb PW12 K.Rama Rao, SI of police.
Documents marked for Prosecution
Ex.P1 is the confession cum seizure panchanama. Ex.P2 is the Sec. 161 Cr.P.C. statement of PW4. Ex.P3 is the Sec. 161 Cr.P.C. statement of PW5., Ex.P4 is the Sec. 161 Cr.P.C. statement of PW6, Ex.P5 is the Sec. 161 Cr.P.C. statement of PW7, Ex.P6 is the Sec. 161 Cr.P.C. statement of PW8, Ex.P7 to P9 are the signatures of PW10 on confession cum seizure panchanama of Accused Nos.1 to 8, Ex.P10 is the Signature of Pw10 on CDF., Ex.P11 to P13 are the signatures of PW11 on confession cum seizure panchanama of Accused Nos.1 to 8, Ex.P14 is the Signature of Pw11 on CDF., Ex.P15 is the First Information Report, Ex.P16 is the Crime Details Form.
24
Documents marked for Accused
NIL
Material Objects Marked
MO1 is the seized cash of Rs.1,77,400/,
MO2 is the Playing cards (153).
MO3 is the cell phones (8 in nos) i.e., four Samsung phones , Letv cell phone, three apple phone cell phones,
MO4 is the two vehicles i.e., Innova bearing No. AP16CE 7889 and Scoda car bearing No. AP20AP 0036.
Spl.Judicial Magistrate of First Class
(Prohibition & Excise cases) Khammam