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Emperor Vs. Hormazdyar Ardeshir Irani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 162 of 1947
Judge
Reported in(1948)50BOMLR163
AppellantEmperor
RespondentHormazdyar Ardeshir Irani
Excerpt:
.....being evidence, until the contrary is proved, that the house, room or place is used as a common gaming house and that the persons found therein were then present for the purpose of gaming ; and (3) by acting under the second part of section 7, that is, where the court is satisfied that the police-officer who conducted the search had reasonable grounds for suspecting that the thing seized on the search was an instrument of gaming, the accused being at liberty to prove the contrary.;the rule that penal statutes must be contrued strictly has lost much of its force and importance in recent times. the paramount duty of the judicial interpreter is to put upon the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object.;however good an..........alleged to be instruments of gaming being found, a presumption arises that the place was a common gaming house, and that those who were found there were there for gaming. as to the two exercise books, the writings in which could not be deciphered, the court has been inclined to take the view that writings of this nature indicated that the writer wanted to conceal his acts, that is, that the writings amounted to a certain kind of concealed code. it has remarked that two of the bogus punters may be regarded as fairly reliable, one of them never having laid bets or acted as a panch before, though it has recognised the ordinary rule that the court ought to be extremely cautious in accepting the evidence of such witnesses. it has relied on the evidence of inspector kadam and a panch witness.....
Judgment:

Sen, J.

1. The appellant has been found guilty of offences punishable under Sections 4A and 5 of the Bombay Prevention of Gambling Act of 1887, and sentenced to pay fines of Rs. 500 and Rs. 75 respectively under the two sections. He is the proprietor of a shop named Hormazdyar Cold Drink Depot on Elphinstone Road in Bombay.The case against the accused was as follows. Inspector Kadam and Sub-Inspector Shaikh of the Anti-Gambling Squad, Bombay Police, who were both officer specially authorised underSection 6 of the Act, having received and verified information that satta bets were being received in the said shop, arranged a raid on June 24, 1946. Four different punters were provided with different Sums of money (Rs. 2 or Rs, 3 each) in currency notes of one rupee each, which were marked in the presence of panchas, after which they entered the shop one after another, laid bets on different figures, and then came out of the shop. The police-officers remained on watch at convenient places outside, and they saw each one of them dealing with accused No. 1, who was at the counter. The monies paid by them were seen to be received by accused No. 1 who then wrote something on a book.. Accused Nos. 2, 8 and 4 were also seen going in and coming out after some transactions with the accused. The shop was thereafter searched in the presence of the panchas, and the ten currency notes of one rupee each, which had been supplied to the punters were found in a drawer of the counter at which accused No. 1 was seated. Other monies were also found in another part of the shop. Amongst the documents, found and seized were two Persian books and three exercise books, the writings in which could not be deciphered, and some chits similarly written. Monies were found with accused Nos. 2, 3 and 4, and two leaflets were found on the person of accused No. 2. While the search was proceeding, accused No. 5 came into the shop with Rs. 100-11-0 on his person with some figures on some of the currency notes which formed part of the said sum. Both the police officers were examined in Court, but one of them (Sub-Inspector Shaikh) not being fully cross-examined owing to his illness, his evidence could not be considered by the Court. Three out of the four bogus punters and two pacnhas were examined. The three bogus punters have stated that they laid bets with the accused after which he wrote something; and they did not say anything, either in their examination in chief or in their cross-examination, as to their having ordered or received any drinks or' other articles at the shop. One of the panchas has stated that there were some soda and lemonade bottles in the shop. Two panchnamas were produced, one regarding the handing over of the marked currency notes to the bogus punters, and the other regarding the search of the shop and the articles found therein. No panchnama regarding the search of the bogus punters after they came out of the shop after laying bets appears to have been made. Inspector Kadam has stated that he had personally watched the shop before and seen people laying bets there, that the bogus punters went in and gave money to accused No, 1 after which the accused was seen writing in a book on the counter, that he saw the punters coming out and that thereafter they had 'no occasion to approach or inform us'. The book which was on the counter, according to this witness, was exhibit. A, an exercise book the writing in which it was not possible to decipher. The accused has said that he did not accept satta bets, that it was difficult for him to explain how the marked currency notes came to be found in his shop, 'as many customers attend my shop,' that he was in the habit of writing and making notes in books, and that the writing was not regarding satta bets. The trial Court has held that specially authorised officers having raided the place and the marked currency notes alleged to be instruments of gaming being found, a presumption arises that the place was a common gaming house, and that those who were found there were there for gaming. As to the two exercise books, the writings in which could not be deciphered, the Court has been inclined to take the view that writings of this nature indicated that the writer wanted to conceal his acts, that is, that the writings amounted to a certain kind of concealed code. It has remarked that two of the bogus punters may be regarded as fairly reliable, one of them never having laid bets or acted as a panch before, though it has recognised the ordinary rule that the Court ought to be extremely cautious in accepting the evidence of such witnesses. It has relied on the evidence of Inspector Kadam and a panch witness who watched the bogus punters' operations from outside the shop at close quarters, and observed that it is not the case of the accused that the marked currency notes were planted by those officers. In its opinion as it was not alleged by accused No, 1 that he had any servants working under him, it is unlikely that anybody supplied drinks to the punters as contended by the accused. Finally, holding that it was not possible to say that in this case the two police officers had conspired among themselves to fabricate a false case against the accused, it has come to the conclusion that the bogus punters did lay bets with the accused with their monies ; and that, apart from the evidence on the merits, the marked currency notes found were instruments of gaining giving rise to a presumption against the accused, which has stood unrebutted.

2. The section of the Act under which the Court purported to act with regard to the presumption is Section 7 which roads thus:

When any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the Court is satisfied that the Police Officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common-gaming house and the persons found therein were then present for the purpose of gaming, although, no gaming was actually seen by the Magistrate or the Police officer or by any person acting under the authority of either of them,

3. As regards marked coins being the instruments of gaming, we would refer to Emperor v. Pyarelal (1931) 34 Bom. L.R. 278 wherein it was observed by Beaumont C.J. that (p. 280):

If...you find that a particular coin or a particular currency note has in fact been used as means of gaming, then I think that particular coin or that particular currency note does fall within the definition of 'instruments of gaming'.

4. Broomfield J. said (p. 280):

In the present case the only evidence that these particular coins were used as a means of gaming is the evidence of the spy Bhagwatiprasad, So that we have to believe Bhagwatiprasad before we hold that these coins were in fact instruments or gaining.

5. In Emperor v. Krishnaji Madhusudan : (1939)41BOMLR1114 after a raid similar to the one in the present case, marked money was found in the possession of the accused when the raided premises were searched. With regard to the finding of such money Broomfieid Ag. C.J. observed (p. 1117):

A. marked coin may no doubt be an instrument of gaming as held by this Court in Emperor v. Pyarelal (1931) 34 Bom. L.R. 278 . It becomes an instrument of gaming if it has in fact been used as a means of gaming... In Emperor v. Harilal : AIR1937Bom385 the Chief Justice and N. J. Wadia J. set aside a conviction in a case where the evidence of the bogus punter was corroborated only by the finding of a marked currency note. Without intending to lay down any hard and fast rule, we do not consider that the evidence of the punter in this case is sufficiently corroborated. We are not satisfied that any presumption under Section 7 of the Act arises or that the case against the accused is otherwise proved,

6. The finding of a marked coin, therefore, was not in that case regarded as giving rise to a presumption under Section 7, that is, it was not regarded as an instrument of gaming in the circumstances of that case. In our opinion the learned Magistrate was not right in treating the marked currency notes in this ease as instruments of gaming.

7. It is possible to prove a case like the present one in three ways ; the first would be without relying on the provisions of Section 7, that is, on positive evidence alone. In this case we have the evidence of the Police Inspector Kadam, the panchas and the bogus punters. The police-officer being interested in the prosecution his evidence alone can hardly suffice to prove the prosecution case. The panchas gave evidence mainly regarding the giving of the marked notes to the bogus punters and what was found at the search after the shop was raided. As to bogus punters Beaumont C. J. remarked in Emperor v. Harilal : AIR1937Bom385 :

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,

8. This seems to have reference to Section 11 of the Bombay Prevention of Gambling Act. Section 11 runs thus:

The Magistrate trying any case under the provisions of Sections 4 and 5 may direct any portion, not exceeding one-fourth, of any fine which may be levied under either of the said sections, or any part of the proceeds of articles or moneys seized and ordered to be forfeited under Section 8. to be sent in the oity of Bombay to the Commissioner of Police and elsewhere to the District Superintendent of Police for distribution as reward in such manner as he may think proper, among the persons, not being Police officers, who may have given assistance in the detection or investigation of the offence.

9. It would seem therefore, that however good an individual bogus punter may be, his evidence would need a certain amount of corroboration before it can be accepted. Obviously the evidence of one bogus punter cannot ordinarily be used to corroborate the evidence of another, nor, us I have already shown, can the finding of marked coins normally be regarded as corroboration of the bogus punter's evidence. In the present case, besides the marked currency notes certain documents were seized, but as their contents could not be deciphered, they can hardly be used to corroborate the evidence of the bogus punters.

10. The second way in which a case like the present case can be proved is by relying on the first part of Section 7 of the Act, that is to say, when an instrument of gaming has been seized in any house, room or place entered under Section 6 or about the person of any one found therein, the seizure of such instrument is evidence, until contrary is proved, that such house, room or place is used as common gaming house and that the persons found therein were then present for the purpose of gaming. In this case there is the difficulty of holding that any of the things seized were instruments of gaming. The articles that were seized, besides the marked currency notes, might be suspected of being instruments of gaming, but that would not bring the case under the first part of Section 7 of the Act.

11. The question thus arises whether the said articles can be said to be such that the police-officer who entered the shop had reasonable grounds to suspect that they were instruments of gaming. Prima facie it seems to us that if such was the case, the second part of Section 7 of the Act would apply, namely :-

.in the case of any other thing so seized if the Court is satisfied that the Police officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized. was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved.

12. That, however, is not the construction that was placed on this part of the section by Beaumont C. J. in Emperor v. Nathalal Vanmali (1939) 41 Bom. L.R. 548. He said (p. 550):

Now, there are two events, as I read the section, on which that presumption arises. The first event is when any instrument of gaming has been seized in the house, room or place entered under Section 6 or about the person of any one found therein. There is no particular difficulty in determining when, that event occurs. All that the Court has to do is to see whether the documents and things, found in the house raided fall within the definition of 'instruments of gaming.' If they do, then the presumption arises. The other event is more difficult to determine. It is worded in this way: 'And in the case of any other thing so seized'-(that must mean any thing other than an instrument of gaming.)-'If the Court is satisfied that the police officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming,' then the seizure leads to the presumption. So that the occurrence of that event requires two things to be proved, first, that something has been seized, which is other than an instrument of gaming, and, secondly, that the police officer had reasonable grounds for suspecting that the thing so seized was an instrument of gaming. When these two things are proved, then the Court must presume, that the house, which has been entered, was used as a common gaming-house until the contrary is proved. But obviously if the only evidence of the house being used as a common gaming-house lies in the seizure in the house of something which is in fact not an instrument of gaming, although the police officer had reasonable grounds for suspecting that it was an instrument of gaming, then there is no evidence of such user and the presumption is rebutted. It seems to me that the presumption arising in the second event specified in Section 7 must always be still born, because it is rebutted by proof of the very event which gives it birth, namely, seizure of something other than an instrument of gaming.

13. The Government Pleader objected that such a construction reduced the section to a nullity; and he contended that what the section really meant was that where there was found in a raid an instrument of gaming, or something which in the Court's opinion was reasonably suspected to be an instrument of gaming, though it could not be definitely proved! to be so, then the presumption arose, and the burden was thrown upon the accused to prove that the suspected thing was not an instrument of gaming. The learned Chief Justice conceded that that would; be a reasonable construction to put upon the section if the language so permitted. But as in construing a section of, a penal Act, which cast upon the accused the burden of proving his innocence, the Court must act strictly, it seemed to him impossible, reading the language of the section according to its ordinary and natural meaning, to give to the section the meaning for which the learned Government Pleader contended. He, therefore, rejected the latter's contention. It seems to us, however, that the construction sought to be put on the section by the Government Pleader is the right construction ; it is hardly possible that the legislature intended to enact a mere nullity by providing the terms of the second part of the section.

14. The ordinary rule of construing wills and statutes and other written instruments is that the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may have to be modified so as to avoid that absurdity and inconsistency, but no further per Lord Wensleydale, Grey v. Pearson (1857) 6 H.L.C. 61. It has been also held, in a case decided by the House of Lords after the decision of the case in Emperor v. Nathalal Vanmali (p. 106):

The golden rule is that the words of a statute must prima facie be given their ordinary meaning. At the same time, if the choice is between two interpretations, the narrower of which could fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

See Nokes v. Doneaster Amalgamated Collieries, Ld [1940] A.C. 1014. In Salmon v.. Buncombe (1886) 11 App. Cas. 627 it was observed that where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftman's unskilfulness or ignorance of the law, except in the case of necessity or the absolute intractability of the language used. Maxwell has noted that the rule which requires that penal and some other statutes shall be construed strictly has lost much of its force and importance in recent times, and that it is now recognised that the paramount duty of the judicial interpreter is to put upon the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object; see Maxwell on Interpretation of Statutes, 9th edn. p. 267. It was observed by Day J. in Newby v. Sims (1894) 63 L.J.M.C. 229.:

I cannot concur in the contention that because these Acts I against adulteration) impose penalties therefore their construction should, necessarily, be strict. I think that neither greater nor less strictness should be applied to those than to other statutes.

15. We are, therefore, inclined to think that the second part of Section 7 of the Act is intended to apply to such thing as may appear to be or may reasonably be suspected to be instrument of gaming though they cannot be proved to be such instruments and that it is only by putting such a construction that it is possible to give meaning to this part of the section. We think that such a construction ought to be adopted in preference to any construction which would reduce this part to a nullity. In this case there may be circumstances which lead to the reasonable suspicion that the documents or papers seized were instruments of gaming. After the decision in Emperor v. Nathalal Vanamali, it was necessary for the legislature to amend Section 7 so as to bring out clearly its underlying intention, for instance, by substituting for the words 'when an instrument of gaming has been seized' the words 'when anything which is, appears or purports to be, an instrument of gaming has been seized' or words to similar effect. We express the hope that some such amendment will now be made in the section in order to bring out clearly the intention of the legislature. The decision in question has stood since 1989, and therefore the lower Court has not applied the provisions of the second part of the section to the facts of this case, and the accused also would feel justified in not trying to meet any presumption that might arise under the said part. Looking into the two judgments in that case we find that the interpretation in question is the interpretation by Beaumont C.J. alone; the other Judge-N.J. Wadia. J. -has not referred to Section 7 but has taken into account all the documents seizedand held that they were consistent with the innocence of the accused. That is a course also adopted by Beaumont C. J. in his judgment.

16. It can, therefore, be said that the interpretation of Section 7 which has been reproduced in the head-note of the case is not an interpretation by the Bench which decided the case. That being so, we feel that we are entitled to, take a different view as to the meaning of the second part of Section 7.

17. The accused., however, has obviously proceeded on the assumption that he would not be called upon to rebut any presumption arising out of the operation of the second part of Section 7. We think, therefore, that he should be given an opportunity to do so. We, accordingly, quash the conviction of the accused and send the case back for further trial. If the prosecution wants to lead further evidence with reference to Section 7, it should be allowed to do so. If the presumption under Section 7 appears to arise, the accused Should have an opportunity to rebut the presumption by further cross-examination of the prosecution witnesses, by leading evidence, or, by adding to his statement, by showing that the police officer concerned had no reasonable grounds for suspecting that any of the things seized was an instrument of gaming, or that none of the articles seized was in fact an instrument of gaming, or that gaming did not as a matter of fact take place in his shop, or that the shop could not be a common gaming house.


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