John Beaumont, Kt., C.J.
1. This is an application in revision in which the accused complain of their convictions by the City Magistrate, First Class, Ahmedabad, under Section 5 of the Bombay Prevention of Gambling Act, IV of 1887. The convictions were, upheld by the Sessions Judge of Ahmedabad, and the question is whether on the evidence the convictions can be supported.
2. The case was tried summarily, and therefore we have no record of the exact evidence given. We have only the statement of the evidence recorded in the judgment of the trial Court, and to some extent in that of the appellate Court.
3. It appears that a police agent (usually referred to as a punter) was given a marked five rupee currency note, and he and a companion went to the place of the accused, and, according to them, handed over the marked currency note as a bet on Ahmedabad 5. On the premises of the accused being raided, the marked currency note was found with accused No. 1.
4. These gambling cases no doubt present difficulties. People, who indulge in gambling, naturally endeavour to conceal the true nature of their operations, and it is difficult for the police to prove their case. But at the same time a charge of gambling like any other criminal charge must be proved by the prosecution by proper evidence, and one cannot fail to note that a false charge of gambling is one very easy to frame. I have said in a great many of these cases that these police agents are not only accomplices, but are also unreliable witnesses, because they are generally paid by results. It is always in their interest to secure a conviction in the hope of getting a part of the fine which may be imposed. The evidence of a police agent in these cases must always be corroborated before it can be acted upon. I do not think that the case is improved by providing the police agent with a companion and calling him a panch, as was done in this case. The finding of the marked currency note is not by itself sufficient to justify the convictions.
5. The other evidence against the accused is the alleged finding on their premises of instruments of gaming, which consisted of certain slips. Those slips have now been translated, and they are by themselves quite unintelligible. They certainly do not purport to be records of gambling transactions. It appears, however, that the Police Sub-Inspector went into the witness-box and stated that in his view, based on experience in other cases, these slips were instruments of gaming. He suggested apparently that slip B should be construed in such a way that the first entry, which is Rs. 20 of Kaku, amounts to the record of a bet of Rs. 2 on mandi by a man named Kaku; though there is nothing whatever in the slip itself to suggest that that is its meaning. In point of fact, it is not the prosecution case that a man named Kaku made a bet of Rs. 2, and prima facie a mandi transaction is not a gambling transaction. So that the particular instance, which the Sub-Inspector gives as to how one slip should be construed, does not appear to support the prosecution. But the question arises how far a police-officer is entitled to go into the box and speak as an expert as to the way in which apparently harmless documents should be interpreted. In my opinion, it is impossible to say that gambling is either an art or science within the meaning of Section 45 of the Indian Evidence Act. I think that the only section under which evidence of this nature might in a proper case be admitted is Section 49, which provides so far as it is material :
When the Court has to form an opinion as to the meaning of words or terms used 'n particular districts or by particular classes of people, the opinions of persons having, special means of knowledge thereon, are relevant facts.
It may be that under that section a police-officer might give evidence that he had had a long experience amongst people who indulged in satta gambling in-a particular district, and from that experience, supported by instances which he should be prepared to give so as to establish his means of knowledge, he was satisfied that a system or code prevailed among such persons, and he might then express an opinion (which would be relevant under the section) that the slips in question were prepared in accordance with that system or code and had a certain meaning. But the Sub-Inspector in this case does not appear to have done anything of this sort. He is not entitled merely to express the opinion that unintelligible documents found in the room of a man charged with gambling must be records of gambling transactions. It is for the Court to decide what the documents mean, and opinion on the matter can only be relevant if made so by the legislature. In my opinion, the convictions were not justified on the evidence. The application, therefore, must be allowed, the convictions set aside, and the fines repaid.
N.J. Wadia, J.
6. I agree.