Debabrata Mookerjee, J.@mdashThese 19 Petitioners were tried by a Magistrate of the 1st class at Barrackpore upon a charge u/s 4 of the Bengal Public Gambling Act, 1867. Petitioner Jogeswar Goala was sentenced to pay a fine of Rs. 50, in default to suffer rigorous imprisonment for one week; the rest of the Petitioners were sentenced to pay a fine of Rs. 25 each, in default to suffer rigorous imprisonment for one week. The alamats were directed to be destroyed and the cash seized forfeited.
2. The case for the prosecution briefly was that on August 18, 1957, at about 4 p.m., a police party raided a place at Lakshmi Ghat within Khardah Police Station and arrested these 19 Petitioners who had been engaged in gambling with cards; cowries and coins. The Petitioners were searched, and a sum of money was recovered from their person; and from the floor of the room besides other sums of money, cards and cowries were seized.
3. The police raided the place in pursuance of an order of the Sub divisional Magistrate of Barrackpore authorising a Sub-Inspector of Police to search it. No search warrant had, however, been issued; but on the strength of the order made by the Magistrate the place was raided, the seizure made and the accused taken into custody.
4. Upon these allegation the Petitioners were sent up for trial to answer a charge u/s 4 of the Bengal Public Gambling Act.
5. The Petitioners pleaded not guilty and the general defence was a denial of the charge. It was contended that the place was not a common gaming-house and the Petitioners had been falsely accused of gambling. On behalf of the Petitioner Jogeswar Goala alibi was pleaded and some evidence was produced before the Magistrate in support of the plea.
6. The learned Magistrate held that in view of the evidence adduced these Petitioners had been proved to have gambled; on the date of raid; the cards, cowries and coins recovered from the place clearly established that the Petitioners had committed an offence u/s 4 of the Act.
7. The principal contention before us is that the prosecution failed to establish that the place where the Petitioners were said to have been engaged in gambling was a common gaming-house within the meaning of the Act. This contention requires examination.
8. Section 1 defines common gaming-house as "any house, room, "tent, or walled enclosure, or space, or vehicle, or any place ''''whatsoever, in which any instruments of gaming are kept or "used for the profit or gain of the person owning, occupying, "using or keeping such house, room, tent, enclosure, space, ''''vehicle or place, whether by way of charge for the use of "such house, room, tent, enclosure, space, vehicle, place or "instruments or otherwise howsoever". The definition makes it clear that the expression common gaming-house has a technical implication, It means a room or a place in which any instruments of gaming are used for the profit or gain of the person using such room or place whether by way of charge or otherwise. It must, therefore, be established that the instruments of gaming are kept or used in the place and that the place is used or kept for the profit or gain of the person using it. "Instruments of gaming" have been defined as including "any article used as a means or appurtenance of, or for the "purpose of carrying on or facilitating, gaming". There can fee no doubt that cowrise, etc, found in the place were instruments of gaming. The real question is whether the requirements of the definition of a common gaming-house have been satisfied in the case.
9. In order to prove that the place concerned comes within the definition of common gaming-house, it has first to be established that instruments of gaming are kept or used at the place; secondly has to be proved that "the place is used or kept for the profit or gain of the person keeping or using such place or such instruments. Both, these conditions must be satisfied before it could be held that a particular place comes within the definition of a common gaming-house.
10. With regard to the first requirement as regards the keeping or using instruments of gaming there can be little difficulty. There could be direct evidence, as there is in this case, to prove that instruments of gaming were found in a particular place; but the mere find of" instruments of gaining will not be sufficient. It has to be established that the place is kept or used for the profit or gain of the person keeping or using such place or such instruments. It is this requirement which it is not easy to prove in every case. The mere fact that the person keeping a place or using it engages in gambling himself will not. necessarily establish that he has been always making profit or gain. Gambling has its peculiar uncertainties. There may be gain and Joss or only gain and no loss or only loss and no gain. That being the position, it would be insufficient to say that the person actually using or keeping a place by merely gambling in it, is using or keeping it for profit or gain. The section requires that the place or the room must be used of kept for profit or gain whether by way of charge for use of the place or of the instruments or otherwise. The definition seems to imply that apart from the fluctuating chances of gain, of loss which are an invariable incidence of gambling, there must be evidence to establish that the keeping or the user of the place or instruments is always a matter of profit or gain. This, therefore, implies that the profit or gain referred to in the section must relate to some-kind of gain which is not the product of'' gambling.
11. The Act punishes Public Gambling and it seeks to define not a gaming-house but a common gaming-house. The obvious purpose of the enactment is that public gambling is to be discouraged, and it necessarily follows that there should be some provision defining gaming-house which might be a place of resort for members of the public.
12. The difficulty of proving that a place is kept for profit or gain of a person keeping it was anticipated by the legislature. It accordingly provided for dispensing with independent proof of the fact that a particular gaming-house came within the mischief, of the Act. Sections 5 and 6 of the Act provides between, them that a. presumption may arise that a particular place is a common, gaming-house upon a search being made of the place in accordance with the provisions contained in Section 5.
13. Section 5 is in these terms. "If the Magistrate of a district "Or other officer invested with the full power, of a Magistrate "or the District Superintendent of Police, upon credible information; and after such inquiry as he may think necessary, has "reason to believe that any house, tent, room, space or willed "enclosure is used as a common gaming-house, he may either "himself enter, or by his warrant authorise any officer of "police, "not below such rank as the (State Government) shall appoint "in this behalf, to enter, with such assistance as may be found "necessary, by night or by day, and by force if necessary, any "such house, tent, room, space or walled enclosure, and may "either himself take into custody, or authorise such officer to "take into custody, all persons whom he or such officer finds ''''therein, whether or not such persons may be then actually "gaming; and may seize or authorise such officer to seize all "instruments of gaming, and all moneys and securities for "money, and articles of value, reasonably suspected to have "been used or intended to be used for the purpose of gaming, "which are found therein; and may search or authorise such "officer to search all parts of the house, tent, room, space or "walled enclosure which he or such officer shall have so entered, ''''when he or such officer has reason to believe that any instruments of gaming are concealed therein, and also the persons "of those whom he or such officer so takes into custody; and "may seize or authorise such officer to seize and take possession "of all instruments of gaming; found upon such search".
14. Section 5, therefore, gives power to authorise the police to enter a place and search if. After such search has taken place, Section 6 raises a presumption that the articles found in the place being instruments of gaming, the place itself is a common gaming-house.
15. Section 6 is in these words, "When any cards, dice "gaming-table, cloth boards or other instruments of gaming "are found in any house, tent, room space or walled enclosure "entered or searched under the provisions of the last preceding "section, or about the person of any of those who are found "therein, it shall be evidence, until the contrary is made to "appear, that such house, tent, room, space or walled enclosure "is used as a Common gaming-house, and that the persons found "therein were present for the purpose of gaming, although to "play was actually seen by the Magistrate or police-officer, or "by any person acting under the authority of either of them". It is clear however that the presumption referred to in Section 6 cannot arise unless and until the place or room in question has been searched in accordance with the provisions contained in Section 5. It is only after such search that the presumption can be availed of, that the instruments found in the place being instruments of gaming, the place itself is a common gaming-house.
16. It is true that direct proof may be offered of the find of instruments of gaming; proof may also be forthcoming to establish that certain persons found in a place were actually engaged in gambling; but proof of this would not be sufficient to establish a charge of offence u/s 4 which punishes a person found present for the purpose of gaming in a common gaming-house. The other requirement of Section 4, namely, that there must be proof of the place being a common gaming house within the meaning of the Act has to be strictly proved; such proof is not easy to produce and that being so, recourse was intended to be had to the provision contained in Section 5 for the issue of a search warrant in order that the presumption raised by Section 6 may be availed of.
17. In the instant case there is proof of the fact that cards, cowries and coins were found in the place; there is proof that these Petitioners were found in the actual act of gambling; but there is no proof that the place or room where the Petitioners were found was a common gaming-house within the meaning of the Act. Besides the fact sought to be established that gambling was going on in the room of one of the Petitioners, there is no proof that the room was used by him for keeping instruments of gambling for profit or gain. The mere fact that gambling was found going on a particular date would not establish that the room was used for keeping instruments of gaming for profit or gain of the person concerned. It would not be enough to prove that he was engaged in the act of gambling as we have indicated gambling has its uncertainties. It may mean all loss to him or all gain to him. If it is loss, surely it could not be said that the room was being used for profit or gain. There was then no proof to satisfy that the instruments or the place were used for profit or gain and the presumption could not be called in aid since there was no search in accordance with Section 5.
18. In the result the charge fails. The Rule is made absolute. The convictions and sentences are set aside. The order of forfeiture of money and of destruction of amalats is set aside.
D.N. Das Gupta, J.
19. I agree.
