Final Order 1

Order Details: Order Below EX 1
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CC No. 912/N/2021
Akshay Ramu Gade V/s. Vakola PS
ORDER
1. The applicant/accused is praying for return of Iphone 12 and
Vivo V17 mobile phones seized by Vakola Police Station in Spl LACR No.
19/2021, registered u/sec. 12 of Maharashtra Prevention of Gambling Act.
2. The I.O. filed his say. It is submitted that the accused
accepted numbers from persons in the adjoining area for purpose of
gambling. He sent those numbers through whatsapp to one Vilas.
Whatsapp conversation with Vilas contains code words and figures. The
accused received 5% of the proceeds of Gambling. Thus, the I.O. objected
to release the mobile phones.
3. The applicant stated that Iphone 12 was purchased by
Mahesh Shendekar on his behalf. Its bill stand in the name of Mahesh.
Vivo V17 mobile phone was gifted to him by his friend Sushant and its bill
is in name of Sushant. The applicant produced NOC from them to
handover the mobile handsets to him.
4. On perusal of the say of IO, it appears that the applicant was
using the mobile handsets for taking figures for the purpose of the
gambling. He forwarded those figures to Vilas through Whatsapp. He
received part of proceeds of gambling. It is clear from the say of IO that
the mobile phones were used by the applicant as a means for gambling. It
is the property actually used for the purpose of the gambling. It contains
whatsapp conversation with Vilas regarding gambling. It is important
piece of evidence from the point of investigating machinery. The
information in respect of the crime is stored in the said mobile phones.
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CC No. 912/N/2021
Akshay Ramu Gade V/s. Vakola PS
This information is important to throw light on the incident. It is a
connecting link between the accused and the offence. It is necessary to
preserve the said information as it is a primary piece of evidence. It being
a piece of electronic evidence, it is necessary to keep it intact as stored on
the internal storage of the said mobile phones. If the said mobile phones
are released in favour of the applicant, the applicant may delete the
information or tamper with it so as to render it unuseful from evidentiary
point of view. The prosecution will be hampered in such a case. Even if
the information and data stored on internal storage of said mobile phones
is obtained on a secondary storage device, the data so obtained in the
secondary storage device does not have the sanctity as primary evidence.
It is the device on which said data is generated, is important from the point
of evidence.
5. Though No objection is given by purchasers, it will not be
proper to release the mobile phones in favour of the applicant. Further,
one of the bills i.e. bill pertaining to Vivo V17, does not contain full name
of the purchaser. Thus, considering all these circumstances, it will not be
proper to release the said mobile phone in favour of the applicant. Hence,
the following order :
O R D E R
The application is rejected.
Sd/
(Pragati B. Yerlekar)
Mumbai Metropolitan Magistrate
Date: 29102021 71st Court, Bandra, Mumbai.
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