Decided on November 10,2008

Raju Madhu Chopda Appellant


- (1.) THE appellant along with one Pravinbhai Jairambhai Chopda came to be tried by Sessions Court, Surat, for offences punishable under Section 489 -A, B and C read with Section 114 of the Indian Penal Code in Sessions case No.104 of 2004. The Sessions Court, by judgment and order dated 20th April, 2005, acquitted accused -Pravinbhai Jairambhai Chopda while convicting the appellant for the offences punishable under Sections 489 -B and 489 -C of I. P. C. and sentenced him to undergo rigorous imprisonment for ten years with a fine of Rs.10,000/ - and rigorous imprisonment for seven years with a fine of Rs.10,000/ - for the said offences, respectively, with appropriate default clauses. It is the said judgment and order in Sessions Case No.104 of 2004 of Sessions Court, Surat, which is under challenge in this appeal.
(2.) THE facts of the case, in brief, are that police received a secret information that a gambling den is being run at Room No.205, Amar Building, Varachchha Road, by one Prakash Purshottam. The police, therefore, organized a raid after drawing preliminary Panchnama at the office. On raiding the premises, ten persons were found, one of whom was the appellant. They were found to be gambling. The police recovered an amount of Rs.20,870/ -, which was the stake money. While searching the appellant, the police found 93 currency notes of denomination Rs.100/ -, which were fake. The police, therefore, lodged two F.I.Rs., one for the offence of gambling and the other for the offence punishable under Section 489 -A, B and C against the appellant and the acquitted accused on the ground that the said notes, which were found in possession of the appellant and which were meant for introducing to circulation, were supplied to the appellant by the acquitted accused. 2.1 On the basis of the charge sheet filed in the Court of Judicial Magistrate, First Class, Surat, the case was registered and then committed to the Court of Sessions and Sessions Case No.104 of 2004 came to be registered. 2.2 Charge was framed against the accused persons at Exhibit 22. The accused persons pleaded not guilty to the charge and claimed to be tried. 2.3 The Trial Court found that the prosecution could not successfully establish the charges levelled against the acquitted accused and, therefore, recorded his acquittal. The Sessions Court also found that the prosecution was successful in establishing charges for offences punishable under Sections 489 -B and C against the appellant and recorded his conviction and awarded sentence, as stated hereinabove, and, hence, this appeal.
(3.) WE have heard learned Advocate, Mr. Buch, for M/s Nanavaty Advocates for the appellant. According to him, the Trial Court has overlooked the fact that the prosecution failed to establish the seizure and once the seizure is not established, conviction for offence punishable under Sections 489 -B or 489 -C could not have been recorded. In support of his argument, he submitted that the witnesses to the Seizure Panchnama have not supported the prosecution case and the officer, who had drawn the Panchnama, has not been examined. He submitted that the seizure is, therefore, not properly established and the appeal, therefore, may be allowed. We have also heard learned Additional Public Prosecutor, Mr. Bhatt.;

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