1999 ALL MR (Cri) 1065
THE HIGH COURT OF JUDICATURE AT BOMBAY

P.D. UPASANI, J.

Baburao Nanchand Gandhi Vs. The State Of Maharashtra

Cri Writ petition no. 110 of 1992

6th April, 1999

Petitioner Counsel: Petitioner absent
Respondent Counsel: Mr.R.S.DESHPANDE, A.P.P. for Respondent absent

Prohibition of Gambling Act ( ), S.4 - Offence under - Accused using telephone for purpose of gambling - Seizure of telephone on apprehension that same would be used for purpose of gambling - Held telephone not being a perishable commodity its seizure on apprehension of misuse for gambling was justified. (Para 7)

JUDGMENT

JUDGMENT :- Petitioner absent. It appears that previously Mr. A.Y.Sakhare was appearing for the Petitioner, and because of his elevation as High Court Judge, court notice was sent to the Petitioner to come personally and to make other arrangement. However, though he has been duly served, he has not bothered to come. Learned A.P.P. Mr. R.S. Deshpande also is absent.

2. This criminal writ Petition is filed being aggrieved by the Judgment and Order dated 19th October, 1991 passed by the third Additional Sessions Judge, Kolhapur in Criminal Revisions Nos. 247/91, 248/91 and 249/91, dismissing all the revisions by his common order, and confirming the order dated 3rd October, 1991 passed by the learned Chief Judicial Magistrate, Kolhapur in Miscellaneous Application No. 385 of 1991 filed by the Petitioner. By the impugned order, the Third Additional Sessions Judge, Kolhapur directed the Investigating Officer that the telephones in question be kept in safe custody and he should see that no damage is caused to these telephone instrument.

3. Few facts which are required to be stated are as follows:

The case of the prosecution is that offence was registered against one Vivek and four others by Laxmipuri Police Station vide Crime No.5/91. It was alleged that offences under Section 4 of the Prohibition of Gambling Act was committed, and that, the other accused were found using the telephone of the applicant for the purpose of gambling. Under the raid, the accused were arrested and the telephone was seized by the Police.

4. An application came to be filed by the applicant for release of the said telephone instrument. It was submitted by the applicant that the said telephone was required for the domestic use and therefore, it was necessary to get its possession. It was further submitted that if it was kept with the police for a longer period, there was every possibility that it might get damaged. It was therefore prayed that the telephone instrument be returned to the applicant on executing the bond to the effect.

5. The A.P.P. filed his say and opposed the said application. He submitted that the telephone instrument was being used for the purpose of gambling i.e. for illegal purpose, and under these circumstances, the possibility of using the telephone by the applicant, again for committing similar offence, cannot be ruled out. It was therefore, prayed that the said revision application be rejected.

6. The Third Additional Sessions Judge, Kolhapur, after hearing both the sides, confirmed the finding of the Lower Court. It is a well reasoned Judgment, wherein, the learned Third Additional Sessions Judge has concluded that the said instrument was indeed used for the purpose of gambling and the possibility of re-using the same for the very same illegal purpose could not be ruled out. He further held that the telephone instrument was not a commodity, which was of a perishable nature, and therefore, since it would be required during the course of the trial, could be kept in safe custody without there being any damage to the same. Recording this finding, he rejected the Revision applications of the applicant.

7. Perused the proceedings. The reasoning of both the Lower Courts appears to be correct and fair. It cannot be said that it is a perverse finding and I see no reason to interfere with the same. Hence, the following order:

Writ Petition No.110 of 1992 is dismissed. Rule discharged.

Petition dismissed