State of Maharashtra vs Narayan Shamrao Landge and others

R.D. Tulpule, J.—On 26th July 1972, Superintendent of Police, Buldhana, had called a meeting of the Police Patils of villages lying within the Amdapur Police Station at Amdapur. Mangrul Naoghare is one such village. After the meeting was over, it appears that the Suprintendent of Police, Reddy was met by some Police Patils of the village and in particular of village Mangrul Naoghare. They informed the Superintendent of Police that in house No. 367 situate at Mangrul Naoghare, Satta betting was going on in one of the rooms which is taken on rent by a Marwadi from Khamgaon. The house was owned by Sukhdeo Motilal Khatri of the same village. The Suprintendent of Police, thereupon with the Police Staff and the two police patils and Panchas proceeded to village Mangrul Naoghare. He came to house No. 367 which also bore census No. 488 (2). He then, with the help of the Panchas and the police entered the house for the purpose of a search of a house as contemplated by the Bombay Prevention of Gambling Act (hereinafter referred to as Prevention of Gambling Act). He found therein accused No. 1 Narayan Shamrao accepting and maintaining record of bets, of the Warli Matka. Accused Nos. 2 and 3 were also there. Accused No. 2 Namdeo was found with a chit which contained a record, according to the police, of the matka feet. Besides, there were other documents with Narayan and in the room which was searched indicating and showing a record of the bets placed with Warli Matka and chits giving bets as well as the money placed thereon. A certain sum was found with Narayan as also accused Nos. 2 and 3. After the Panchanama was completed, the articles which were found in the room and the cash which was in the possession of accused Nos. 1 to 3 who were in that room, were seized and the Police Inspector and the Police Sub-Inspector, Amdapur Police Station was directed to commence further investigation. Accordingly, Police Sub-Inspector Mohd. Ismail who was then attached to the Amdapur Police Station carried out further investigation. Accused No. 4 who was the owner of house No. 367 of Mangrul Naoghare was placed under arrest, while accused No. 5 Gokulchand Govindlal Dalwale was arrested as being the person responsible for running the common gaming house of whom Narayan accused No. 1 was the servant. In due course, all the accused were placed for trial before the learned Magistrate, First Class Chikhli for having committed offences u/s 4 (a), (b), (c) and section 5 of the Prevention of Gambling Act.

The defence of accused Nos. 1, 2 and 3 is one of total denial. They deny having been found in the house or accused No. 1 of running a common gaming house. Accused Nos. 2 and 3 deny that they had gone to that place for the purpose of gaming. According to them and the other accused also, one Dr. Chavan had his dispensary in the house in question. That accused Nos. 2 and 3 had gone to Dr. Chavan for treatment as that was the dispensary of Dr. Chavan. It was the case of accused No. 4 that he was not residing in Mangrul Naoghare for some time, and at least for about six months prior to the incident, had started staying at Sindkhed Raja, as he was suffering from Tuberculosis; that he had let out his house to Dr. Chavan and not to any person by name Gokulchand Govindlal Dalwale or a Marwadi. It was the defence of Gokulchand accused No. 5 that he is not the person who either owned or ran any gaming house. According to him, Narayan was not his assistant and he had not hired a room on rent from Sugdeo. Further it was his case that there are 4 persons at Khamgaon having the same name Gokulchand. Besides, he was not a Marwadi.

The learned Judicial Magistrate, held that the presumption u/s 6 was not available to the prosecution. According to him, Superintendent of Police, Reddy who carried out the raid, did not satisfy the essential requirements of section 6, in that, he failed to verify the information which he had received. Consequently, his subsequent acts of raiding searching and attaching were illegal. He also held that there was no evidence to hold that gaming articles were found or anything which would bring the case within the definition of the expression "common gaming house" in section 3. Inasmuch as the conviction of accused Nos. 1 to 4 and 5 in his opinion could rest only upon the basis of the presumption of the finding that a common gaming house was being run, and since that was not available to the prosecution, in his opinion, the accused were entitled to an acquittal. He, therefore, acquitted the accused. As against this order and judgment that the present appeal is filed.

Subsequent to the filing of this appeal, accused No. 4 is reported to have died. The appeal against him, therefore, no more survives.

It would be convenient firstly to take up the case against accused No. 5. It is the case of the prosecution that accused No. 5 had taken on rent these premises from accused No. 4 and was running the common gaming house. Assuming that what was run in house No. 367 at the time when Superintendent of Police, Reddy raided the place at Mangrul Naoghare was a common gaming house. Now, the only evidence which the prosecution has led in this connection, is the evidence of the Patwari, and Ex. 33 is extract from form No. 8 maintained by the Gram Panchayat, Mangrul Naoghare. Now Ex. 33 shows that house No. 367 consists of two parts viz. residential house and a shop, was owned by Sukhdeo Motilal Khatri, according to the register of the Gram Panchayat, Mangrul Naoghare. So far as the occupiers were concerned, the column 6 of that form showed against the residential house the name of Sukhdeo Motilal Khatri and against the shop Gokulshet Dalwale. In the information which was given to Superintendent of Police, Reddy, what was stated to him by the Police Patil was that one Marwari from Khamgaon and his servant by name Narayan were indulging in Warli Matka gaming. Accused No. 5 has contended that he is not a Marwari and the prosecution has not shown that Gokulshet Dalwale, accused No. 5, was a Marwari. I do not think it possible for the prosecution to show that he was a Marwari. The Police Patil who gave this information to Superintendent of Police Reddy was also examined as P. W. 7, Ex. 41. This Witness was, however, declared hostile and did not support the prosecution in any way. He stated that accused No. 5 was not from his village and he never saw him. Therefore, there is no evidence so far as Ramrao Patil is concerned that accused No. 5 is that Marwari of Khamgaon, who was running a gaming house.

It was Sub-Inspector Mohammad Ismail who carried out the further investigation and the only thing which he says in his evidence in regard to accused Nos. 4 and 5 is that from Ex. 33 he came to know "that the house is owned by Sukhdeo accused No. 4 and it is given on rent to the accused Gokul Dalwale. I, therefore, arrested them with the permission of Judicial Magistrate, Chikhli."

I have pointed out that accused No. 5 in his statement u/s 313 stated before the Court that there were four persons by name Gokulchand of his Samaj at Khamgaon and he named them. He also stated that he was not a Marwari. Now, merely because one Gokulchand Dalwale appears to be an occupier as per Ex. 33, it would not be possible to hold that the accused before the Court in the name Gokulchand Dalwale who had taken on rent the premises of Sukhdeo Motilal accused No. 4 of house No. 367 at Mangrul Naoghare. It was still the duty of the prosecution to establish by adequate and cogent evidence that accused No. 5 had taken on rent the premises viz. shop at house No. 367 at Mangrul Naoghare from Sukhdeo. It is then only that it would be possible to hold that accused No. 5 was the name Gokulchand Dalwale who was the occupier of the house No. 367. Inasmuch as the evidence which I have discussed above is woefully wanting in this respect, accused No. 5 cannot be held to be guilty of the offence as the identity of accused No. 5 as Gokulchand Dalwale mentioned in Ex. 33 has not been established.

That brings me to the main question which has been urged in this case and which found favour with the learned Magistrate, viz. whether the premises were a common gaming house and in order to hold that it was a common gaming house, so as to bring home the charge against accused Nos. 1 to 3, the presumption under sections 6 and 7 can be pressed into service by the prosecution.

Now, the learned Magistrate held that the entry of the Superintendent of Police, was not u/s 6 of the Prevention of Gambling Act, and therefore, no presumption u/s 7 can be raised. He further held on the evidence, that though the articles which were found in the premises were instruments of gaming, still the prosecution cannot take advantage of this fact, as the entry itself has not been in accordance with section 6 of the Prevention of Gambling Act.

Mr. Shirpurkar, who appeared for the respondents accused Nos. I to 3, strongly urged that upon a correct interpretation of section 6 subordinate police officer who effects an entry, and in order to raise a presumption u/s 7 of the Prevention of Gambling Act, must be armed with a Warrant which can be issued under that section by the officers and authorities mentioned therein. Where there does not exist any warrant, general or special then according to him, entry by any police officer, may be above the rank of a Sub-Inspector and even the Superintendent of Police, in the case of areas other than places where a Commissioner of Police is appointed, or by a Commissioner of Police, would not be an entry u/s 6. Mr. Shirpurkar, further contended that it is not merely enough for an officer effecting an entry u/s 6 to merely enter on the basis of a Warrant or an authority, but he must demonstrate and establish before the court that he had reason to suspect that the place was used as a common gaming house. There were also two alternative and additional submissions made by Shri Shirpurkar in this behalf. He contended that it must be shown that this was a common gaming house even if a presumption is to be raised or it was a gaming house run for the profit or gain and was secondly, that even if instruments of gaming were seized from the house which was entered u/s 6, the police officer must satisfy the Court that "there were reasonable grounds for suspecting that the things so seized were the instruments of gaming." Unless, therefore, according to Mr. Shirpurkar, both these aspects of the matter were established, a presumption u/s 7 cannot be brought in aid for the prosecution. It was Mr. Shirpurkar''s submission, therefore, that the prosecution in this case not having effected an entry under a Special Warrant or General Order issued by any authority or an officer named in section 6, even if the entry is effected by the Superintendent of Police, that entry was unable to clothe the entry in question with the efficacy of being able to raise a presumption u/s 7, Further the prosecution evidence, according to him, was not there to show that this was a common gaming house or either a gaming house run for the profits and further that there was no evidence which would satisfy the court that the instruments seized in the place could be reasonably suspected as instruments of gaming.

I do not think that any of these contentions are entitled to succeed and have any merit in them. The learned Magistrate held in this case that the entry effected by Superintendent of Police, Reddy was not in accordance with section 6, not because he had no power to do so being himself an authority contemplated u/s 6 sub-clause 2 of that section, as an officer authorised to issue a Special Warrant; but because Reddy in his evidence clearly admitted that the information which he had received from the police patil he "did not verify the said information before the raid." Reading section 6, he felt that superintendent of Police Reddy had not shown that "he had reason to suspect that the house in question was being used as a common gaming house." He, therefore, felt that the entry of Superintendent of Police Reddy was not in pursuance of section 6 of the Prevention of Gambling Act. It is not possible to accept this contention. Now, one of the cases upon which reliance was placed by Shri Shirpurkar in support of his contention negates this ground of his argument which has found favour with the learned Magistrate. That decision is reported in Jawaharlal Jamnadas Rathi and others v State of Maharashtra 1976 Mh. L. J. 603. Mr. Shirpurkar relied upon this case in another context. But it would be convenient to point out what the Division Bench of this Court observed in connection with the performance of official acts by officers. There, the case was of issuing of a warrant by an officer and the contention was that before the warrant is issued, the authority issuing the warrant must be reasonably satisfied about the averments and the basis or material on which the warrant is sought. It was observed "normally there is a presumption u/s 114 of the Evidence Act that the officer issuing the warrant has performed his duty in accordance with law." Now where an officer himself is an authority armed with the power to issue a special warrant, decides to enter any premises, the entry can undoubtedly be where he has reason to suspect that the premises are used as a common gaming house. But the reason why the learned Magistrate felt that the entry was not u/s 6 of Prevention of Gambling Act, because in his opinion, the Superintendent of Police should have first verified the information before it can be said that he had any reason to suspect that the premises were used as a common gaming house. The learned Magistrate clearly overlooked the provisions of section 114 of the Evidence Act.

Now where an officer is clothed with a power to issue a special warrant which pre-supposes an enquiry, where the officer is also authorised to enter, as 1 would presently show, the Superintendent of Police being the authority to issue a special warrant is also empowered so upon a plain and grammatical interpretation of section 6, himself can enter where he has reason-to suspect that any premises is used as a common gaming house. That he will do so after he has really reason to suspect. Now, the phrase "reason to suspect" undoubtedly is a subjective state of mind of the person who has to form that suspicion. But it is also laid-down by innumerable authorities that this reason to suspect is not merely a state of mind of the authority or officer concerned, but must be demonstrable. In other words, the subjective state of mind must be based upon objective existence of facts. It is, therefore, necessary that objective existence of such facts must be shown, before the officer can be said to have really had reason to suspect and the Court must be satisfied that those objective circumstances existed.

In the present case, the Superintendent of Police acted upon the information of the police patil. It is true that he did not verify the information as he says. But no fixed or rigid standard has been laid down as to when an officer can be satisfied that there was "reason to suspect" that any premises were used for a common gaming house. It will depend many times upon the quality of information, the nature of the information, the time available for verification of that information and other attending circumstances. Where the source of information is impeccable or authentic in the opinion of the officer concerned who has to form that opinion, he may act on that information. The question as to whether the circumstances brought out in evidence were enough to raise the suspicion or to form an opinion that the premises in question were suspected to be used for purpose of gaming, is a question of fact and will depend upon consideration of numerous factors particular to each case and circumstance. In the present case, I think that the "reason to suspect" that the premises in question were used for a common gaming house is established from what he described he saw during the raid and evidence. Apart from that, it seems to me that if the Superintendent of Police was satisfied upon the information two police patils gave to him of a common gaming house being run at a particular place and by particular persons who were to some extent at least identified, it cannot be said that, that information was not enough to come to an opinion that there is "reason to suspect" of the use of the premises as a common gaming house. If, therefore, the Superintendent of Police was authorised to effect an entry u/s 6 of Prevention of Gambling Act, all that he had to show to the Court for purpose of raising a presumption u/s 7 was that, he had demonstrable reasons to suspect the use of the premises as a common gaming house. In my opinion, in the present case, that has been sufficiently shown by Shri Reddy and the prosecution.

But what Mr. Shirpurkar contended was more basic. According to him. upon a plain interpretation and reading of section 6, no police officer can effect an entry, even if such a police officer, in cases where there is no Commissioner of Police, above the rank of a Sub Inspector of Police, or may be an authority empowered to issue a special warrant, enter any premises unless armed with a special warrant. The proposition which Mr. Shirpurkar therefore, canvassed to state in his words, was that every police officer effecting an entry under the Prevention of Gambling Act u/s 6 before the entry can be legal and the prosecution can ask for the raising of a presumption u/s 7, must enter only under a special or general warrant and not otherwise. I do not think that this proposition can be accepted upon the plain terms of section 6 or upon authority. If we read section 6 of Prevention of Gambling Act, that section so far as is material, is in these terms;

"6. (i) It shall be lawful for a Police Officer:

(i) in any area for which a Commissioner of Police has been appointed not below the Rank of a Sub-Inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the Commissioner of Police, and

(ii) elsewhere not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a District Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf, and

(iii) without prejudice to the provisions in clause (ii) above, in such other area as the State Government may, by notification in the Official Gazette, specify in this behalf, not below the rank of a Sub-Inspector and empowered by general order in writing issued by the District Magistrate,

(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming-house."

Now according to Mr. Shirpurkar, all Police Officers are debarred from making an entry, by the Legislature, unless they are authorised either by a general or Special warrant. That, in his opinion and contention is the plain meaning of section 6. To my mind, that is misreading the section. Section 6 as its opening words indicate, makes it lawful for a Police Officer to enter as is stated in clause (a). Section 6 may have been drafted inartistic-ally, but it is unmistakable that what section does is to confer upon Police Officers authority to enter. In the case of areas where there is a Commissioner of Police, the Commissioner of Police has been empowered to issue a special warrant or a general order authorising the Police Officer not below the rank of Sub-inspector to enter. In other areas a District Magistrate, a Sub-Divisional Magistrate or a Taluka Magistrate specially empowered by the State Government, is also authorised to issue a special warrant authorising the Police Officers not below the rank of Sub-Inspector to enter. Similarly, a Superintendent of Police or an Assistant or Deputy Superintendent of Police specially empowered by the State Government in this behalf, can also authorise by a general or special order in writing an officer not below the rank of a Sub-Inspector of Police to enter, provided he has reason to suspect that any particular premises are used as a common gaming house. Mr. Shirpurkar contended that if a general or special order is necessary for all police officers not below the rank of a Sub-Inspector to be empowered, then the words "Police Officer" embraces all categories of police officers. No police officer, even of the rank of a Superintendent of Police or Deputy Superintendent of Police authorised to issue a general or special order, or a District Magistrate, as the case may be, entitled to authorise and issue general or special warrant, can himself enter, even if he has reason to suspect that the premises are being used as a common gaming house, in order to clothe his entry in such premises with the efficacy of section 6. This contention is clearly untenable upon the plain reading of section and its grammatical interpretation. The key words in section 6 are really that, it shall be lawful for the Police Officer to enter upon, there being reason to suspect that such premises are being used as a common gaming house. That authority of the police officer which includes a person from the lowest person in the police hierarchy to the highest has been limited in the case of the two areas. Besides, in the two areas, certain authorities and officers have been authorised to issue what is called a general order to enter for a police officer not below the rank of a Sub Inspector of Police, and also to issue what is described as a special warrant to any particular police officer also not below the rank of a Sub-Inspector.

Mr. Shirpurkar contended that if the interpretation of section 6 is made in the manner suggested, then it would mean that any officer above the rank of Sub-Inspector of Police can enter any premises when he has reason to suspect that such premises are used as a common gaming house. To my mind, it is not necessary for the purpose of the present case to lay down any interpretation of a section which I am not called upon to do so. The question before me, is simply this, whether a person who is authorised and empowered to issue a general or special order or warrant, authorising any police officer not below the rank of Sub-Inspector of Police, to enter any premises suspected by him to be used for a common gaming house, cannot himself do so without a warrant when he has reason to suspect that such premises are being used for a common gaming house. It seems to me, that, that the answer to that must always be given in the affirmative for where a person is authorised or empowered to authorise any officer to do a thing for him or as directed by him, that officer has always the authority to do the act himself. That is one of the basis and elementary proposition and principles of law that a person who can delegate authority to any other to do an act can himself always do the act. It is, therefore, clear to me that upon a plain construction of section 6, the authority or officer authorised to issue a general or special warrant as contemplated in clauses 1 and 2 of section 6 of Prevention of Gambling Act, can always himself enter any premises when he has reason to suspect that the same are used for the common gaming house.

This view is also amply supported by authority. The first decision to which reference may be made is that reported in I L R Bom 438. That was no doubt a case under the unamended provisions of section 6 of the Bombay Prevention of Gambling Act, prior to its amendment in 1963. However, the material part of the section has remained unchanged. In that case, the raid was actually effected by a Sub-Inspector in the presence of the District Magistrate, who u/s 6 was authorised and empowered to issue a general order or a special warrant. It was contended that the entry was not in accordance with section 6. There was no general or special warrant, and therefore, even if the District Magistrate was present and in his presence entry was effected by the Sub-Inspector, it could not enable the raising of the presumption. Mr. Justice Chandavaikar observed "in the present case there was no such warrant, but it is contended, and we think rightly, that, as u/s 6 the District Magistrate as a Magistrate, First Class, has power to give authority under a special warrant to a Police Officer of the class designated in the section to make the arrest and the search, the Legislature must be presumed to have intended that the Magistrate, First Class, should have authority to make the arrest and the search himself, if necessary, "and further" when the Legislature empowers an officer to delegate an authority to do a certain act to another person, it necessarily implies that the original authority to do such act is fully and completely in the officer himself. "What was, however, held in that particular case was that where a Magistrate, First Class, or other officer mentioned in section 6 of the Act himself acts under its provisions, instead of acting through an officer of the particular class prescribed therein under a special warrant, he must act strictly in compliance with these provisions. "In that particular case it seems it was found that there was not that compliance. It was held that the presumption could not be raised. But the decision is clearly an authority for the view that a person authorised u/s 6 to issue a special warrant or a general order, as the case may be, can himself effect and do the same thing which he can ask others to do.

The correctness of this decision of the Division Bench was sought to be called in question before another Division Bench later and that is reported in Emperor v. Jaffur Mahomed I L R 37 Bom. 402. It was contended that these observations of Mr. Justice Chandavarkar in Emperor v. Fernad I L R 31 Bom. 438 were obiter and that the presumption u/s 7 cannot arise unless the house is entered under a warrant u/s 6, an argument similar to the one which is addressed before me. It was held that the matter was no more res Integra.

Mr. Shirpurkar then referred me to two decisions also of this Court. The first is reported in State of Maharashtra v. Talaksi Malsi Sawala 1973 B L R 373. He relied upon particularly the following portion in the head note:

"It has to be initially shown that the entry was effected u/s 6 of the Act where the relevant authority under the Act had reasons to suspect that the place was being used as a common gaming house and he has to demonstrate before the Court to its satisfaction that ''he had reason to Suspect. The next step required u/s 7 of the Act is that in the case of such entry instruments or things must be attached in respect of which the authority had reasonable ground for suspecting that they were instruments of gaming. Here again, this has to be demonstrated to the satisfaction of the Court."

Mr. Shirpurkar, therefore, contended that assuming the Superintendent of Police Reddy had an authority, it must be shown that the entry was in conformity with section 6. In other words, that it was on the basis of reasons demonstrable for entertaining a suspicion that the premises were used as a common gaming house. Now, this case was subsequently considered also by a Division Bench of this Court in Jawaharlal''s case referred to earlier above. this Court observed with reference to these observations "as to what can be termed as sufficient grounds in this behalf must determine on the facts and circumstances of each case." Talakshi''s case, therefore lays down as to what is necessary to be established by the prosecution. But as to how this works in a given case, or how that can be established in a given case, the character and scope of evidence to satisfy the two tests will always depend upon the facts of each case and the scanning of the evidence will depend upon circumstances and facts which may be peculiar to every case. It is a plain and obvious that no hard and fast rule or rigid test can be laid down in regard to this. But it is clear that neither Talakshi''s case nor Jawaharlal''s case is authority for the proposition which Mr. Shirpurkar contended before me viz. that every entry u/s 6, before any presumption u/s 7 can at all be raised, must be under a general or special warrant. In other words, according to him, the raising of the presumption u/s 7 is barred in the absence of a general or special warrant. I do not find anything in either of these cases to support such a proposition. On the other hand, as I have pointed out, the authority of this Court since long has been to the contrary.

That takes me to the only question which now remains and that is whether under the circumstances presumption u/s 7 can be raised and evidence satisfying the two tests as contemplated is forthcoming. I have already pointed out, as to what was the basis of the information of Superintendent of Police Reddy before he proceeded to raid house No. 367 of Mangrul Naoghare. Now, it cannot be seriously disputed though all the Panch witnesses have been won over and were declared hostile and cross-examined, that the various articles which were produced before the Court and were seized during the Panchanama of that place were instruments of gaming. The Panchanama is at Ex. 31 and is proved by Superintendent of Police Reddy as well as Police Sub-Inspector Mukund Dattatraya P. W. 8, and P. W. 9 Mohd. Ismail. The Panchanama would go to show that accused Narayan had with him a Pad on which satta figures were written and were kept. That there was duplicate slip-book with mere papers meant for writing the Satta figures. Besides, among the articles which were seized from Narayan was "one book in duplicate with a piece of carbon paper meant for writing figures of Satta and amount. It has at the beginning seven chits bearing the date 26th July 1970 and on other pages there are the figures and the amount in carbon. At the beginning the satta figures are 11". Similarly

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two chits bearing words "open 4.50" and the satta amount and another date 25-7-73 which was an amount of the money transaction relating to Satta was also seized. Further "Five small chits kept concealed in folds of the right sleeve of the shirt on the person" of Narayan bearing various numbers mentioned in the Panchanama item No. 6 were also seized. The Almirah disclosed the account book wherein Satta figures were written as also Satta Newspapers viz. "Navsamaj", "Navgarjana" and "Mansjula" and 27 old chits. The second Almirah contains all 22 old chits bearing Warli Matka.

Now, Superintendent of Police, Reddy in his evidence stated that he had conducted more than 100 raids of Warli Matka gambling, and according to him, "the books and chits seized from the accused persons are of Warli Matka. Art. ''E'' the literature of the Warli Matka was also found there." Similarly he spoke about the chits which were found as Matka Chits.

The cross-examination of Superintendent of Police Reddy Was directed to two aspects of the question principally. First, the basis of the information on which he acted and second, in regard to ownership of the premises and their occupation. General cross-examination was however made as to his knowledge of gambling and though he admitted that he had not seen under his very eyes Matka gambling being done in Bombay, he referred to the training which he received as a Police Officer into the system of Warli Matka. He says that "From my personal knowledge I can say that the chits are of Warli Matka" He denied that it was his mere inference. Now, the material which has been seized is of two kinds. One is in the form of accounts and the other in the form of chits showing the bets placed and the numbers on which the bets are placed. To my mind, the cross-examination of Superintendent of Police Reddy, is not sufficient to dislodge his statement that the instruments or articles which were seized were not instrument of gaming as contemplated in section 3, for the articles which were found on the premises would not make it any gaming house as also contemplated u/s 3. u/s 7, the presumption is attracted and the evidence which is necessary to show is that the place was entered in accordance with section 6 viz. after there was reason to suspect that the premises was used as a common gaming house and further that the articles seized therein were instruments of gaming. Where the evidence adduced is sufficient to establish both these things, the presumption u/s 7 is raised.

Now the words "instruments of gaming" and "common gamine house" are defined in section 3 of the Prevention of Gambling Act. The expression "Instruments of gaming" includes any articles used or intended to be used as a subject or means of gaming any document used or intended to be used as register or record or evidence of any gaming " It will thus be seen that any article which can be used as a subject or means of gaming or which is intended to be so used or any document used or intended to be used as a register or record of evidence of any gaming, is also an instrument of gaming. The expression "any article" used as a subject or means of gaming is capable of interpreting any article which is used by means of which gaming can be resorted to or on which itself any game is played or bets are placed. In other words, the article may be itself the subject of betting or may be a means of betting. The expression has been defined to embrace even a register or record of evidence of any gaming having been done. In the present case, as I have pointed out, with reference to the Panchanama, the account book and the chits show that they have been used for the purpose of record or evidence of gaming and is also so far as the account book is concerned, a register of gaming.

Turning to the expression "common gaming house" and the relevant applicable portion of that definition for our purposes, it will be Seen that the present case falls u/s 3 sub-clause (i) Clause (e) and (f) as amended by the Maharashtra Act XX of 1975. That clause after the amendment will read as Follows:

"Common gaming house", means in the case of gaming, on the quantity of rainfall or on the digits of the numbers used in stating such quantity, or any house, room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming.''" (Italics is supplied by me).

Sub Clause (e) of Clause (i) of section 3, therefore, relates back to the definition of expression ''''instrument of gaming". A common gaming house would mean, any house, room or place whatsoever in which instruments of gaming are kept. I have already held that in this case, the articles seized were instruments of gaming. That, they were found in a room and were kept therein. Therefore, on the basis of this evidence and material facts of the present case, the room in question, comes within the definition of "common gaming house" and therefore, it must be held that it was a common gaming house. The definition in clause (i) of clause (f) of section 3 also makes the positron very dear. That is in these terms :

"23. on the pictures, digits or figures of one or more playing cards or other documents or objects bearing numbers, or on the total of such digits or figures or on the basis of the occurrence or non-occurrence of any uncertain future event, or on the result of any draw, or on the basis of the sequence or any permutation or combination of such pictures, digits, figures, numbers, events or draws."

The result of the aforesaid discussion is that the pre-requisites of raising of the presumption u/s 7 are fully satisfied in the present case. If they are so satisfied, then it would follow that a common gaming house was being run in the premises of house No. 367. The charge against accused No. I is of assisting accused No. 5 in conducting the business run in a common gaming house. I have already held that accused No. 5 in this case cannot be convicted of any offence. It would, therefore, follow that accused No. 1 could not have assisted accused No. 5. The charge u/s 4(c) against accused No. 1 cannot be brought home. All the same accused Nos. 1 to 3 having been found in a common gaming house, must be convicted u/s 5. Accused Nos. 1 to 3, therefore, are convicted u/s 5 of the Prevention of Gambling Act.

There is no evidence that this was not the first offence of the accused. Under the circumstances, u/s 5 sub-Clause (a), the accused have to be sentenced to the minimum punishment prescribed viz. rigorous imprisonment for one month and a fine of Rs. 200, in default further rigorous imprisonment for one month.

The appeal is allowed. The accused are granted three weeks to surrender to bail.