John Beaumont, Kt., C.J.
1. This is an appeal by the Government of Bombay against an acquittal of accused Nos. 2, 3, and 4 by the Additional Sessions Judge of Sholapur. The facts are not in dispute. The accused in question were charged under Section 5 of the Bombay Prevention of Gambling Act of 1887 with having been found in a common gaming house for the purpose of gaming. The finding of fact by the Magistrate, which was accepted by the lower appellate Court, was that the accused in question were in a common gaming house for the purpose of gaming, but just before the arrival of police they escaped to a neighbouring house. Two of them were arrested in the neighbouring house about half an hour after the raid by the police, and the other of them, accused No. 2, was arrested three days later. The learned Additional Sessions Judge came to the conclusion that on those facts the accused were not 'found' in a common gaming house within the meaning of Section 5, because they were not found there by the police.
2. The point raised is a short one, but not unimportant in connection with prosecutions under the Bombay Prevention of Gambling Act, and there appears to be no direct authority upon it. Section 5 of the Act provides:
Whoever is found in any common gaming house gaming or present for the purpose of gaming, shall be punished.
3. and then it goes on:
Any person found in any common gaming-house during any gaming therein shall be presumed, until the contrary be made to appear, to have been there for the purpose of gaming.
4. So that any person found in a common gaming house is to be presumed to be there for the purpose of gaming unless the contrary is proved, and is liable to be punished accordingly.
5. Now, if Section 5 stood by itself, I do not think that there would be any ground for the view, which appealed to the lower appellate Court, that 'found in any common gaming house ' means found by the police. A person may be said to be found in a place where he is actually present, and there is nothing in the section to show that the word ' found' refers only to a finding by the police. It has been held that 'found' in that section is not equivalent to 'arrested', and that seems plain ; but it has never been determined by whom the person is to be found, whether it is by the police or by any person. One has, however, to construe the section with reference to the other sections in the Act, and it is contended by Mr. Pradhan that, reading Section 5 in conjunction with Sections 4, 6 and 7, the true meaning of the Act is that a prosecution under the Act can only be started after a search under a warrant obtained under Section 6, and that the word 'found' must mean found on that search by the persons making the search, i.e., the police, and that it was never intended that persons should be prosecuted for being present in a common gaming house unless they were actually found there by the police. Section 4 does not, I think, greatly help, because that deals with the case of an owner or occupier who keeps a common gaming house. Sections 6 and 7, however, have some bearing on the question. Under Section 6 the Commissioner of Police in Bombay can issue a special search warrant, and the police have certain powers under that warrant, and then Section 7 provides that when any instruments of gaming are found in a place entered under a warrant issued under the previous section, it shall be prima facie evidence that the place is used as a common gaming house and that the persons 'found therein' were there present for the purpose of gaming. Now, in that section the words 'found therein' relate, no doubt, to the occasion of a raid by the police under a search warrant, and it may well be that those words in that section mean 'found by the police making the search.' But, in my view, that is not a sufficient reason for giving a similarly restricted meaning to the words in Section 5. I am not prepared to accept Mr. Pradhan's argument that a prosecution under Section 5 must necessarily be preceded by a search under Section 6. A prosecution under Section 4, or Section 5, might be launched on evidence quite independent of police evidence, for example, the evidence of neighbours, and it is not, in my opinion, possible to read Section 6 as laying down a condition precedent to the launching of a prosecution under Section 4 or Section 5. In my opinion Sections 6 and 7 are enabling sections, and give powers to the police to facilitate proof of their case, but do not make a search obligatory before any case be launched. If that is so, I cannot see any sufficient reason for restricting the prima facie meaning of the word 'found' in Section 5. No doubt, where a person is prosecuted under Section 5 and he has not been discovered in the common gaming house by the police, the case may be difficult to prove. But we are not concerned with any question of that sort here, because it is not disputed that the finding by the trial Court, accepted by the lower appellate Court, is correct. In my opinion, therefore, the prosecution here succeeded in proving their case, and the appeal must be allowed.
6. I agree.
7. The contention that there can be no prosecution without a warrant would imply the further contention that, if anything is done in the case contrary to the terms of the warrant, the prosecution must fail. But any such contention would be contrary to the authority of Emperor v. Raghunath : (1932)34BOMLR901 where it was held that, even though the arrest was illegal, nevertheless the charge-sheet sent up by the police could be used as a complaint and the Magistrate was entitled to act upon that complaint. If it is possible to take action in these cases without a warrant, then presumably the ordinary law applies, which is that anybody is entitled to file a complaint; and if that is so, then it would appear that under this Act, as in prosecutions under any other Act, the evidence of any particular class of persons might be enough to form the basis of a conviction. As regards the reference to Sections 6 and 7 of the Act and the contention that Section 5 is limited by those two sections, I agree that these two sections are merely enabling sections and are not in any way intended to be a condition precedent to action being taken under Section 5. The appeal must, therefore, be allowed.
8. The Court restores the order of the trial Court as to accused Nos. 2 to 4 and the order under Section 11.