IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 1425 OF 2010 Revision filed under Section 397 and 401 of CrPC, judgment in CrI.A.No. 225 of 2009 dated 05.08.2010 Sessions Judge, West Godavari District, Eluru confirming the Judgment, conviction and sentences passed by the II Additional Judicial I Class made in CC.No. 709 of 2007 dated 21.10.2009. aggrieved by the of the Principal Eluru Between: Nallimilh Srinivasarao, S/o. Chenchuramayya, 38 Years, Coolie, Eastern Street, Eluru PETITIONER/ APPELLANT / ACCUSED AND The State of Andhra Pradesh Andhra Pradesh, Amaravati. rep. by its Public Prosecutor, High Court of ...RESPONDENT/ RESPONDENT /COMPLAINANT Counsel for the Petitioner: SMT D.SANGEETHA REDDY Counsel for the Respondent: PUBLIC PROSECUTOR The Court made the following: APHC010242402010 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 1425/2010 BetMveein: Nallimilli Srinivasarao, ...PETITIONER AND The State Of A P Rep By Pp ...RESPONDENT Counsel for the Petitioinier: 1. D SANGEETHA REDDY Counsel for the Respondent: 1.PUBLIC PROSECUTOR THE COURT MADE THE FOLLOWING ORDER: This Criminal Revision Case has been filed under Sections 397 and 401 of Code of Criminal Procejdure, 1973 (for brevity ‘the Cr.P.C’) challenging the judgment dated 05.08.2010 passed in Crl.A.No.225 of 2009 on the file of the learned Principal Sessions Judge, West Godavari District, Eluru, in confirming the conviction and sentence for the alleged offence punishable under Section 9(1) of Andhra Pradesh Gaming Act (for brevity ‘the Gaming Act’) and Section 4(i)(c) of Andhra Pradesh Lotteries Act (for brevity ‘the Lotteries Act’), imposed by the learned II Additional Judicial Magistrate of First Class, Elunj^ in Dr.YLR, J Crl.R.C.IMo.l425 of 2010 Dated: 28.04.2025 C.C.No.709 Of 2007 dated 21.10.2009, whereby and whereunder the 255(2) of ‘the Cr.P.C.’for the the Gaming Act’ and for 4(i)(c) of petitioner/accused was convicted under Section offence punishable under Section 9(1) of the Lotteries Act’ to suffer simple imprisonment for three months and fine of Rs.lOO/- and under Section 9(1) of ‘the Gaming Act’ and for imprisonment and Rs.2,000/- for the offences punishable of ‘the Lotteries Act’. one year simple under Section 4(i)(c) 2. I have heard the arguments of learned learned Assistant Public Prosecutor. counsel for the petitioner and 3. Mr.Ismail, learned counsel learned counsel for the petitioner, while representing Smt. D.Sangeetha Reddy, reiterating the grounds of the revision submits that even though no offence was committed by the petitioner the charges framed, the learned Trial Court without as per going into the ingredients were made out, erroneously convicted and of the offences as to whether they sentenced the petitioner, there the running of lotteries by the petitioner, the learned that P.W.Nos.1 and 2 had not stated anything about the lotteries; was no complaint from the public with regard to Judge failed to appreciate petitioner conducting petitioner was not previous and subsequent conduct of the considered, it was erred in believing the seizure of M.Os.1 and 2 from house of the petitioner, and urged to allow the the Criminal Revision Case by 3 Dr.YLR, J Crl.R.C.No.l425 of 2010 Dated; 28.04.2025 setting aside the conviction and sentence for the offences charged and acquit the petitioner. Per contra, Ms.Akhila Naidu, learned Assistant Public Prosecutor vehemently argued that the prosecution had proved the guilt of the petitioner beyond all reasonable doubt for the charges under Sections 9(1) of the ‘the Gaining Act’ and Section 4(i)(c) of ‘the Lotteries Act’; there was no misreading of evidence; no violation of principles of natural justice; no flagrant miscarriage of justice and urged to dismiss this Criminal Revision Case. 4. 5. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the petitioner and learned Assistant Public Prosecutor for respondent. Perused the record. 6. Now the point for consideration is; "Whether the judgment in C.C.No.709 of 2007, dated 21.10.2009, passed by the learned II Additional Judicial Magistrate of First Class, Eluru, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?” 7. The prosecution in order to prove the guilt of the petitioner had examined P.W.Nos.1 to 4 and got marked Ex.P1 to P5 and M.Os 1 and 2. P.W-1 by name Pentakoti Apparao testified before the learned Trial Court that the petitioner v/as talking over cell phone and Police came there and caught hold of him, he did not know the reason that Police recovered cell phone and cash. Police arrested the pesl^ioner on the ground that he was playing single \ 4 \ Dr.YLR, J Crl.R.C.No.l425of2010 Dated: 28.04.2025 \ N number lottery. Indeed P.W-1 has become hostile. Nothing concrete was elicited from the evidence of P.W-1 in his cross examination that he was gained over by the petitioner. P.W-2 had also not supported the case of the prosecution. He just 8. deposed that Police came along with the mediators and caught hold the petitioner while he was talking over phone and arrested the petitioner on the ground that he was playing single number lottery. It is important to note down here that P.W.Nos.1 and 2 deposed that the petitioner was playing single number lottery and nowhere they deposed that the petitioner was conducting or selling lottery tickets against the Rules. P.W-3 is a mediator who deposed that on 17.08.2007 at about 10 a.m. the Sub-Inspector of Police and his staff and another mediator proceeded to clock center and where they noticed that the petitioner was talking over phone; the Sub-Inspector of Police, caught hold of the petitioner and seized one note book and three cards from the possession of the petitioner and also 9. a cell phone and cash of Rs.300/-. P.W-3 testified that the petitioner confessed that he was indulged in doing single number lotteiy over phone; that the slips are passed on M.OsI and 2. The confession of the petitioner before P.W-3 in the direct presence of Sub-Inspector of Police/P.W-4 is hit by Section 25 of Indian Evidence Act, 1872. Therefore this confession cannot be looked into. 5 Dr.YLR, J Crl.R.C.No.l425 of 2010 Dated: 28.04.2025 examination deposed that the Police did not try to of offence. P.W-3 P.W-3 in his cross independent v/itnesses at the alleged scene admitted that he is not the author of Ex.P1 mediators report. It is an admitted fact that EX.P2 notebook and Ex.P3 three number slips do not contain any 10. secure other thing relating to single number lottery. P.W-3 is a stock he has deposed in three or four cases. He had not gone through of EEx.PI mediators report. However, he denied the suggestion that Ex.P1 was prepared in Police Station and Ex.P2 and P3, M.Os.1 and 2 seal or any mediator as the contents were planted for the purpose of this case. the Sub-Inspector of Police, testified that he caught hold the the cell phone in the 11. P.W-4, petitioner red handedly while he was talking over presence of mediators. He arrested the petitioner and seized M.Osf and 2 and also Ex.P2 and P3. The learned Trial Court at para No.16 observed that. "16 4s seen from the above evidence, it is clear that the accused has been claying single number lottery. The note book marked under Ex.P2 contains the numbers up to five pages, though ^""-^^ spec/f/ca/^ not speaks about the single number lottery, but the numbers mentioned in the stoiv numerical noted. A glance of Ex.P2 and P3 discloses that they numbers which will be noted only for lottery business. The police that some contain some has no motive to arrest accused. observed by the learned Magistrate that the petitioner was earlier occasion and he was in the number lotteries. At the paragraph of the impugned learned Trial Court itself, it was mentioned that the petitioneir 12. It was indulged in threje iTiore similar offences on habit of playing single judgment by the 6 \ Dr.YLRJ CrI.R.C.No.l425 ol 2010 Dated: 28.04.2025 \ was charged with similar offence in Crime No. 118 of 2002 filed under Section 420 of I.P.C. and Section 4(i)(c) of ‘the Lotteries Act’ and 9(1) of ‘the Gaming Act’: in Crime No.4 of 2003 similar offences and in Crime No.83 of 2004 similar offences were registered, but all the cases were ended in acquittal by the learned Trial Court. The learned Trial Court proceeded on the surmises and conjectures and erroneously found the petitioner guilty for the offences charged. Indeed Ex.P2 and P3 do not contain any seal or any other thing relating to single number lottery. No concrete material was recovered from the petitioner and proved that the petitioner v/as indulged in playing or conducting single number lottery. In this regard, the relevant provisions of A.P. Lotteries Act 1968 are 13. required to be referred and extracted for better appreciation of the case. Section 2(i) of ‘the Lotteries Act’ reads as under: 2 (i) - (i) “ticket” includes, in relation to any lottery or proposed lottery, any document evidencing the claim of a person to participate in the lottery. Section 2(2) of ‘the Lotteries Act’ lays down as under; 14. Sec 2 Sub Section 2 - (2) For the purposes of this Act, (a) references to printing shall be construed a.s including references to writing and other modes of representing or reproducing letters, words or figures in a visible form; (b) documents or other matters shall be deemed to be distributed if they are distributed to persons or places whether within or outside the State and the word “distribution” shall be construed accordingly; and (c) 5[the Government] may, after making such inquiry as it deems fit, determine the person who is or is to be deemed to be a promoter in relation to a lottery and its decision shall be final. 7 Dr.YLR, J Crl.R.C.No.l425 of 2010 Dated: 28.04.2025 declares that all lotteries are unlawful Section 3 of ‘the Lotteries Act subject to provisions of 'the Lotteries Act’. intends to operate in respect of private of the State The A.P. Lotteries Act, 1968 lotteries. Therefore, the Act is Legislature. The Lotteries Act imposes 16. not ultravires the powers reasonable restriction on exercise of the right of a citizen to conduct lotteries in accordance with the provisions of 'the Lotteries Act'. Accordingly, it is saved by the operation of clause 6 of the the decision of this Court in G.Hari vs. Article 19 of the Constitution as per Union of India^. the Judgments of learned Trial for the offences under Section 4(i)(c) of the The petitioner was found guilty as per Court and learned Appellate Court 17. Lotteries Act’, v\/hich is extracted as under; Section 4 (1) Whoever with a view to the conduct of any lottery in contravention of provisions of this Act on Wimany such lottery promoted or conducted or conducted, either in this State or or proposecf to be promoted or elsewhere. (c) sells or distributes, or offers or advertises for sale or distribution, or has iri his possession, for the purpose of sate or distribution, any ticket or other documents or chances in the lottery; Section 4(i)(c) of 'the Lotteries Act’ punishes the person who indulged n selling or distributing or offering or possession for the purpose 18. advertising for sale or distribution or is ticket or oth^r in of sale or distribution any 1988 (1) ALT 31 NRC \ 8 Dr.YLR,J \ Crl.R.C.No.l425of2010 Dated: 28.04.2025 documents or chances in the lottery. It Is not the case of the prosecution that the petitioner was directiy selling tickets or distributing the tickets or offering advertising to particular individual for sale Similarly, it is not the case of the prosecution that the \ or or distribution of lottery tickets, petitioner was in possession for the purpose of sale or distribution of any ticket for lottery, but, he was found in possession of Ex.P2 notebook and EEx.P3 three number slips. These two documents are the key documents for the prosecution. 19. However, these two documents do not depict that the accused either selling or distributing or offering or advertising for sale of ticket. Ex.P2 i* a notebook as admitted by P.W-3, it does not contain any seal or any other thing related to single number lottery, so is the case with Ex.P3. Ex.P3 contains some names and digits, it is not a concrete proof to show and establish that the petitioner was indulged in either selling or distributing or offering or advertising for sale of any lottery tickets for that matter of distribution of any lottery tickets. Ex.P2 and P3 documents are not sufficient to bring home the guilt of the petitioner for the offences punishable under Section 4(i)(c) of ‘the Lotteries Act’. No independent witness was examined to prove that the petitioner was indulged in lottery business either by way of sale, distribution or advertising for sale or offering in that regard or possession or distribution of the lottery ticket for sale. The learned Trial Court and also the learned Appellate Court proceeded on the surmises and conjectures and erroneously was IS 20. came to a 9 Dr.YLR, J Crl.R.C.No.l425of 2010 Dated: 28.04.2025 conclusion that the petitioner was indulged in the commission of an offence of ‘the Lotteries Act’. The ingredients of not satisfactorily proved by the punishable under Section 4(!)(c) Section 4(i)(c) of ‘the Lotteries Act’ are prosecution to convict and sentence the petitioner under the charge framed. Therefore, the conviction and sentence for the charge under Section 4(i)(c) of ‘the Lotteries Act’ are unsustainable, as the findings related to that charge are improper, perverse and unsustainable. With regard to the conviction and sentence for the alleged offences under Section 9(1) of 'the Gaming Act’, it is apposite to refer and extract certain important provisions of ‘the Gaming Act’. 21. Section 2(2) of ‘the Gaming Act’ defines gaming as under; “Sec ? (?) documents or other matters shall be deemed to be distributed if they are distributed to persons or places whether within or outside the State and the word “distribution” shall be construed accordingly;” refer to Section 9(1) and (2) of ‘the Gaming Act’, which 22. 23. It is apposite to reads as follows; 9. Penalty for gaming or setting birds or animals to fight in a public street or place - reasonably suspected to (1) Whoever is found gaming be gaming in any public street or thoroughfare or in any Pl^ce W which the public have, or are permitted to have, access shall he term which may extend to or punishable with imprisonment for a ^ three^ionths or with fine which may extend to three hundred rupees dr with both. (2) Whoever is found setting any birds or animals to fight or is reasonably suspected to be aiding or abetting such fighting of birds or animals in any public street or thoBiughfare or in any \ 10 Dr.YLR, J \ Crl.R.C.No.l425 of 2010 Dated: 28.04.2025 \ % \ place to which the public have, or are permitted to have, access, shall be punishable with imprisonment for a term which may extend to one month or with fine which may extend to fifty rupees or with both. A fair reading of Section 2(2) definition ‘gaming’, it is clear that gaming does not include a lottery. When that is so, the conviction for the offence 24. under Section 9(1) of ‘the Gaming Act’ is unsustainable. 25. The prosecution could not prove that the petitioner was playing a game for winning or prizes in money or otherwise. He was not alleged to have been paid a game of matka or satta or lucky board. He was not indulged in wagering or betting. When he was not found gaming or atleast reasonably suspected to have been gaming in any public place, the conviction and sentence for the offence under Section 9(1) of ‘the Gaming Act’ is wholly unsustainable. The findings of the learned Trial Court and confirmed by the learned Appellate Court are improper and perverse. Therefore, they are liable to be interfered and setaside. The prosecution has not proved the guilt of the petitioner beyond 26. reasonable doubt under Section 9(1) of A.P. Gaming Act and under Section 4(i)(c) of A.P. Lotteries Act. In the result, the impugned Judgment of the learned Principal Sessions Judge, West Godavari District, at Eluru and the Judgment passed by learned II Additional Judicial Magistrate of First Class Eluru, are bound to be setaside. 11 Dr.YLR, J Crl.R.C.No.l425 of 2010 Dated: 28.04.2025 in the result, the Judgment in Crl.A.No.225 of 2009 dated 05.08.2010 learned Principal Sessions Judge, West Godavari District at consequently, the Judgment dated 21.10.2009, passed in the file of the learned II Additional Judicial Magistrate setaside, acquitting the petitioner for the charges 27. on the file of the Eluru, and C.C.No.709 of 2007 on of First Class, Eluru, are framed against him. No order as to costs. Miscellaneous petitions, if any, shall stand closed. Interim orders granted earlier, if any, shall stand vacated. Sd/- K. TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The II Additional Judicial I Class, Eluru, West Godavari District. (With Records) 2. The Principal Sessions Judge, West Godavari District, Eluru. (With Records) 3. The S.H.O., Eluru I Town L & O Police Station, Eluru, West Godavari District 4. The Superintendent, Central Jail, Rajahmundry, East Godavari District 5. One CC to Smt; D.Sangeetha Reddy, Advocate [OPUC] 6. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh, Amaravathi [OUT] 7. The Section Officer, Criminal Section High Court of A.P. 8. Three CD Copies MV Cnr HIGH COURT DATED: 28/04/2025 nP I 0 ! ^ Curreiri SeciioA , ORDER CRLRC.No.1425 of 2010 m. ALLOWING THE CRLRC