Absence of notification bars police to register FIR under Gambling Act: Court

STATE TIMES NEWS

JAMMU: Principal Sessions Judge Jammu Sanjay Parihar on Friday held that absence of notification bars police to register FIR under Gambling Act.
The Judge restrained police from registering case until notification issued.
This significant order has been passed by Principal Sessions Judge Jammu in revision petition filed by Boby Sharma who claimed that he worked as Manager of Hotel Ocean Grand situated at Jewel Chowk Sank Market, Jammu, which is owned by one Mohinder Singh. That in the intervening night of 16th/17th of December, police raided the hotel and entered a particular room wherefrom they arrested Kashmiri boys who had booked that room. That the arrested persons were taken to police station Nowabad. On 17th of December, petitioner was called in police station and made to sign certain documents and told that an FIR has been registered as the said Kashmiri persons were found indulging in gambling. The petitioner was shocked to know that he too was included as one of the accused persons. The police told him that petitioner has been roped in only as a formality and that the matter would be closed by the court upon payment of fine. The later was then taken to the court, made to sign certain document and to deposit Rs.100 as fine.
Principal Sessions Judge Jammu Sanjay Parihar after hearing Adv Vishal Kapur for the petitioner, observed that , the initial action of the police agency of registering FIR against the petitioner in absence of any notification regarding enforcement of Sec. 3/4 of the Act in the area where petitioner was working for gains, was highly improper. Because law would come into operation and its violation would be tackled only in accordance to law in force for the time being. In absence of their being any notification under section 2 of the Act, the police agency of police station Nowabad had no power to direct registration of FIR. So much so, there could have been no search warrants in terms of Sec. 5 of the Act thereto. This is because untill the provisions except Sec.13 and 17 are made applicable to the area of the petitioner by way of notification, neither there could be any search warrant nor registration of case under the Act. Being Act of special nature, in terms of Sec.5 of the Code was required to be investigated, enquired and tried as per the special law itself but not otherwise. Once the police has no power to invoke the application of Act of 1867, then there could be no prosecution of the violator. Because the initial action is not in consonance with law, resultantly, all consequential actions must fail.
Scanning of the record of Trial Court would show that petitioner and co-accused have been produced before the Magistrate for having committed offence under section 3/4 of the Act and Magistrate has proceeded to impose fine of Rs.100/- upon recording plea of guilty of petitioner and co-accused. As per the charge sheet Rs.62,200/- was also found recovered as stake money. However, no order has been passed with regard to disposal of said amount. Because in the event of accused pleading guilty, the money so seized become tainted one, thus ought to have been forfeited to the State, which has not been done. Therefore, Ld. Magistrate has failed to apply law to the case in hand and resultantly, the order impugned suffers from illegality and passed without following due process of law. Hence, by exercising revisional jurisdiction, the conviction so recorded is set aside. Charge sheet shall stand dismissed and amount so seized if not claimed, shall forfeit to the State within three months from the date of this order, Court ordered.
Principal Sessions Judge Sanjay Parihar after hearing PP Suresh Sharma for the UT whereas Adv Vishal Kapur for the petitioner, ordered that having regard to the controversy involved, it is desirable that copy of the order be sent to Director General of Police (J&K) with the request that the matter be taken up with concerned quarters for issuance of notification in terms of Sec. 2 of the Act, enabling the police agency to process such cases in accordance with law and untill any such notification is issued, Incharge police stations/police officers connected with the enforcement of law, shall be directed not to register such cases, Court ordered.