Shaik Zaheer Vs. the State of A.P., Through Public Prosecutor

Shaik Zaheer vs The State of A.P., Through Public Prosecutor

Disposition Petition allowed Court Andhra Pradesh Decided Dec 12, 2001

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Citation: sooperkanoon.com/446233
Court: Andhra Pradesh High Court
Judge: B. Sudershan Reddy, J.
Decided On: Dec 12, 2001
Case Number: Criminal Petition No. 83 of 2001
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

Criminal - confiscation - Sections 2 (4), 9 and 12 of Andhra Pradesh Gaming Act, 1974 and Sections 255 (1) and 482 of Criminal Procedure Code - petition filed challenging confiscation of certain sum seized from petitioner's possession - conviction of person under Section 9 is a condition precedent for ordering forfe...

Key legal issue: Criminal
Outcome / disposition: Petition allowed
Acts & sections: Andhra Pradesh Gaming Act, 1974 - Sections 2(4), 9 and 12; Code of Criminal Procedure (CrPC) - Sections 255(1) 482

Parties & Advocates

Appellant / Petitioner

Shaik Zaheer

Advocate Mohd. Qasim, Adv.

Respondent

The State of A.P., Through Public Prosecutor

Advocate Additional Public Prosecutor

Legal References

Acts: Andhra Pradesh Gaming Act, 1974 - Sections 2(4), 9 and 12; Code of Criminal Procedure (CrPC) - Sections 255(1) 482
Reported In: 2002(1)ALT(Cri)177

Excerpt

.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as..........before adverting to the question as to whether the impugned orders suffer from any legal infirmity and as to whether the petitioner is entitled for the refund of the amount as prayed for, it may be necessary to briefly notice the relevant facts leading to filing of this petition.3. the respondent-state filed a charge sheet against the petitioner-accused for the offence punishable under section 9 of the andhra pradesh gaming act, 1974 (for short 'the act'). in the complaint, it is inter alia alleged that on 16.2.1999 at about 8.00 p.m, the petitioner-accused was found at new road, shamsheergunj playing satta betting money from the public on the public road. he was accordingly taken into custody and an amount of rs.3,000/- and the satta chits were seized from his possession under a panchanama. thereafter, the prosecution was launched against the petitioner herein for the offence punishable under section 9 of the act.4. the prosecution in order to establish its case examined five witnesses and marked exs.p-1 to p-3 and m.os 1 and 2.5. the learned magistrate upon a perusal of the oral and documentary evidence available on record came to the conclusion that the prosecution has failed to bring home the guilt of the petitioner-accused beyond all reasonable doubt and accordingly acquitted him under section 255(1) of cr.p.c for the offence punishable under section 9 of the act. the learned magistrate, however, ordered confiscation of a sum of rs.3,000/- seized from the possession of the petitioner. the petitioner aggrieved by the said order of confiscation preferred criminal revision petition no. 236 of 2000 before the learned i additional metropolitan sessions judge, hyderabad. the learned judge dismissed the criminal revision petition by an order dated 4.12.2000 confirming the order passed by the learned magistrate confiscating the seized amount from the possession of the petitioner. hence this petition.6. sri mohd. qasim, learned counsel for the petitioner.....

Full Judgment

ORDER

B. Sudershan Reddy, J.

1. This is an application filed under Section 482 of the Code of Criminal Procedure to quash the judgment of both the Courts below passed in S.T.C No. 286 of 1999 on the file of the learned XIV Metropolitan Magistrate, Hyderabad to the extent of confiscation of the seized amount and the judgment passed in Criminal Revision Petition No. 236 of 1999 on the file of the learned I Additional Metropolitan Sessions Judge, Hyderabad. The petitioner accordingly prays for a consequential direction to the respondent to refund the amount of Rs. 3,000/- to secure the ends of justice.

2. Before adverting to the question as to whether the impugned orders suffer from any legal infirmity and as to whether the petitioner is entitled for the refund of the amount as prayed for, it may be necessary to briefly notice the relevant facts leading to filing of this petition.

3. The respondent-State filed a charge sheet against the petitioner-accused for the offence punishable under Section 9 of the Andhra Pradesh Gaming Act, 1974 (for short 'the Act'). In the complaint, it is inter alia alleged that on 16.2.1999 at about 8.00 P.M, the petitioner-accused was found at New Road, Shamsheergunj playing satta betting money from the public on the public road. He was accordingly taken into custody and an amount of Rs.3,000/- and the satta chits were seized from his possession under a panchanama. Thereafter, the prosecution was launched against the petitioner herein for the offence punishable under Section 9 of the Act.

4. The prosecution in order to establish its case examined five witnesses and marked Exs.P-1 to P-3 and M.Os 1 and 2.

5. The learned Magistrate upon a perusal of the oral and documentary evidence available on record came to the conclusion that the prosecution has failed to bring home the guilt of the petitioner-accused beyond all reasonable doubt and accordingly acquitted him under Section 255(1) of Cr.P.C for the offence punishable under Section 9 of the Act. The learned Magistrate, however, ordered confiscation of a sum of Rs.3,000/- seized from the possession of the petitioner. The petitioner aggrieved by the said order of confiscation preferred Criminal Revision Petition No. 236 of 2000 before the learned I Additional Metropolitan Sessions Judge, Hyderabad. The learned Judge dismissed the criminal revision petition by an order dated 4.12.2000 confirming the order passed by the learned Magistrate confiscating the seized amount from the possession of the petitioner. Hence this petition.

6. Sri Mohd. Qasim, learned counsel for the petitioner contends that the order passed by the learned Magistrate and confirmed in the revision petition by the learned Additional Metropolitan Sessions Judge suffers from incurable legal infirmities. It is submitted that the order of confiscation of the amount seized from the possession of the petitioner is unsustainable in law.

7. It is required to notice that the judgment acquitting the petitioner of the charge punishable under Section 9 of the Act has become final. Therefore, the only question that arises for consideration is as to whether the order of confiscation of the amount seized from the possession of the petitioner is sustainable in law?

8. Section 12 of the Act says that on conviction of any person under Section 9, the convicting magistrate may order that-

(i) all the instruments of gaming seized, shall forthwith be destroyed or forfeited;

(ii)....

9. It is thus clear that the learned Magistrate is empowered to order forfeiture or destruction of all the instruments of game seized on conviction of the individual under Section 9 of the Act. Therefore, it is clear that the order of conviction alone would result in forfeiture of all the instruments of game or destruction thereof. Conviction of the person under Section 9 of the Act is a condition precedent for ordering the forfeiture or destruction of the instruments of game seized by the police and produced before the Magistrate. Sub-Section (4) of Section 2 of the Act defines instruments of gaming which includes cards, dice, gaming tables, or clothes, boards or any other article 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 proceedings of any gaming and any winnings or prizes in money or otherwise, distributed or intended to be distributed in respect of any gaming. Therefore, the money used as a subject or means of gaming is an instrument of gaming. Such instrument of gaming including the money is liable to be forfeited or destroyed as the case may be on conviction of the person under Section 9 of the Act. The learned Magistrate convicting the person under Section 9 of the Act is accordingly empowered to forfeit or destroy the instruments of gaming.

10. But in the instant case, the learned Magistrate having acquitted the petitioner herein of the charge for the offence punishable under Section 9 of the Act ordered confiscation of the amount seized from the petitioner. In the circumstances, there is absolutely no difficulty whatsoever to declare that the order of confiscation passed by the learned Magistrate and confirmed in the revision by the learned Additional Metropolitan Sessions Judge is totally untenable and unsustainable in law. The order is vitiated by an error apparent on the face of the record. The order has resulted in manifest injustice contrary to law.

11. In the circumstances, the order passed by the learned XIV Metropolitan Magistrate, Hyderabad in S.T.C No. 286 of 1999 dated 28.8.2000 ordering confiscation of the amount seized as confirmed in Criminal Revision Petition No. 236 of 2000 dated 4.12.2000 is set aside. Both the orders are accordingly quashed. Consequently, there shall be a direction for refund of the amount of Rs. 3,000/- to the petitioner within a period of three months from the date of receipt of a copy of this order.

12. The Criminal Petition is accordingly allowed.

Same Court & Year Andhra Pradesh · 2001 Same Parties Shaik Zaheer vs The State of A.P., Through Public Prosecutor Same Subject Criminal Same Judge B. Sudershan Reddy, J. Acts & Sections Andhra Pradesh Gaming Act, 1974 - Sections 2(4), 9 and 12; Co...

Criminal