Beaumont, Kt., C.J.
1. This is an application by Government to enhance the sentence passed on accused No. 1 under Sections 4(a) and 5 of the Bombay Prevention of Gambling Act.
2. The accused has exercised his right of challenging his conviction, but L think the conviction was justified by the evidence.
[After discussing the evidence in the case his Lordship proceeded] :
The learned Magistrate fined the accused Rs. 100, in default seven weeks' rigorous imprisonment, and Government have applied to enhance the sentence, and have argued that as a matter of law the learned Magistrate should have imposed the minimum fine of Rs. 500. Section 4(a) of the Bombay Prevention of Gambling Act provides that for a first offence under the section the punishment shall be imprisonment which may extend to seven months, or fine which may extend to Rs. 1,000, or both. Then there is a proviso that in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one month and fine shall not be less than Rs. 500. The special reason which the learned Magistrate gives in this case, and which he has emphasized in his report made under Section 441 of the Criminal Procedure Code, is that he considered that the accused was not in a position to pay so heavy a fine as Rs. 500 and that to impose a fine of that magnitude would mean that the accused would have to go to prison in default of payment.
3. The learned Government Pleader has contended that as a matter of fact there was no evidence before the learned Magistrate that the accused could not pay a fine of Rs. 500. But on such a matter the Magistrate is the best Judge. It would be difficult, if not impossible, to prove affirmatively the accused's lack of means, and as the learned Magistrate considered from the appearance of the accused, and the amount of money employed in gaming and found on the accused, that he was not likely to be able to pay a fine of Rs. 500, there is no material on which this Court can differ from that conclusion.
4. The learned Government Pleader then argues that lack of means on the part of the accused is not a special reason justifying the imposition of less than the minimum fine. But I am not prepared to accept that argument. The vice of a fine as a means of punishment is that its severity necessarily depends on the financial position of the accused. A fine of Rs. 1,000 may be an inconsiderable punishment for a rich man, whilst a fine of Rs. 50 may be a very heavy punishment for a poor man. The Court has discretion to impose a sentence of imprisonment or fine; and where the accused is shown to be gambling on a large scale, and may be presumed to be making a good deal of money out of it, it may be that the only punishment, likely really to act as a deterrent, would be imprisonment. Prima facie, however, it is undesirable to impose a sentence of imprisonment for a first offence. If a Magistrate does not think that a sentence of imprisonment is called for, and comes to the conclusion that the accused is not likely to be able to pay as much as Rs. 500, and that to impose such a fine would in fact mean sending the man to prison, I think the Magistrate is perfectly justified in treating that as a special reason for imposing a smaller fine.
5. The fine which the learned Magistrate has inflicted in this case, namely Rs. 100, is a substantial fine for a man who is not wealthy, and in my view there is no ground on which we ought to enhance the sentence. The application, therefore, is rejected, and the rule discharged.
6. I agree.