1. This is a reference by the learned Sessions Judge at Karwar recommending that the conviction of the six accused by the Sub-Divisional Magistrate, First Class, Karwar Town, under Section 5 of the Bombay Prevention of Gambling Act, should be set aside and the accused acquitted and discharged. The charge against the accused was that accused No. 3 had kept a common gaming house at Keni, a suburb of Ankola, and that all the accused were found there engaged in playing cards for stakes. The Police Sub-Inspector of Ankola received information that three cottages in survey No. 166/A belonging to Dani, Yeshwant and Janaki were used as common gaming houses, and on August 20, 1945, he obtained a warrant from the First Class Magistrate, Ankola, to search these houses and seize the instruments of gaming found there. On August 23, 1945, the Police Sub-Inspector got information that gambling was going on in Dani's house. It was then about 11 p.m. and he proceeded to that house with a party of constables and panchas. Peeping through a hole, he found that all the six accused were then engaged in playing with cards what is known as pat game with two annas stakes. The party entered the room and found the six accused sitting in a circle playing cards, with a sum of Rs. 3-11-0 placed in the centre. As soon as the party entered the room, the accused began to run away. They were all caught and a panchnama was drawn up. After completing the investigation, a charge sheet was sent against all the six accused, accused No. 3 being charged under Section 4 of the Bombay Prevention of Gambling Act and the other accused under Section 5.
2. The learned Magistrate who tried the accused found that the house belonged to Dani, and accused No. 3, who was thought to be the son of Dani, was really not her son and had nothing to do with that house. The charge under Section 4 was, therefore, held not proved against (him, but as all the six accused were found playing there for stakes and the instruments were seized on a search made under a warrant issued under Section 6 of the Act, a presumption under Section 7 was raised and all the six accused were convicted under Section 5 of the Act.
3. The learned Sessions Judge has recommended their acquittal mainly on three-grounds, viz. that the warrant under which the search was conducted was not legal and proper, that no instruments of gaming were found there, and that even if a presumption might be raised under Section 7, yet it was rebutted by the fact that all the accused were related to each other and they were enjoying a game of cards in a holiday mood as it was naralipaurnima.
4. Unfortunately, the warrant which the Sub-Inspector obtained from the Magistrate was drawn upon a printed form intended for warrants under Section 96 of the Criminal Procedure Code. No correction was made in the printed form, and the order of the Magistrate contained in that warrant that the articles seized should be immediately produced before him shows that the Magistrate did not apply his mind to his powers in issuing a warrant under Section 6 of the Prevention of Gambling Act. The learned Sessions Judge has pointed out that there is nothing in evidence to show that a written information was laid before him on oath before he issued a warrant as required by Section 6. But, as held in Emperor v. Tribhovan Motiram (1928) 31 Bom. L.R. 53 the section does not require that information should be given in writing. All that the section requires is that there should be a complaint or information on oath, and it may be either oral or in writing. It is not necessary that it must appear in the warrant itself that a complaint or information was given on oath. Illustration (e) to Section 114 of the Indian Evidence Act justifies the presumption that the warrant was issued after the necessary procedure. We do not, therefore, think that the warrant is illegal on that account. But there is nothing to show either in the warrant itself or in the statement of the Police Sub-Inspector that it was issued under Section 6 of the Prevention of Gambling Act. The wording of the warrant clearly shows that it was issued under Section 96 of the Criminal Procedure Code. If it was intended to be issued under Section 6, at least the heading would have been scored out, and for Section 96 of the Criminal Procedure Code, Section 6 of the Prevention of Gambling Act would have been substituted. Section 6 of the Prevention of Gambling Act does not speak of the production of the articles seized before the Magistrate issuing the warrant. The order for production of the articles could be made only under Section 96 of the Criminal Procedure Code. The Sub-Inspector' of Police could merely send a report and obtain a warrant under that section. But for the purpose of a warrant under Section 6 of the Prevention of Gambling-Act, he must appear in person and give the information on oath. He does not say in his statement that he gave such information on oath, or that he obtained a search warrant under Section 6 of the Prevention of Gambling Act. All that he says is that on August 20, 1945, he obtained a warrant of attachment and search from the Magistrate, First Class, Ankola, and he has produced that warrant. It clearly shows that it was a warrant under Section 96 of the Criminal Procedure Code. Hence the presumption which would ordinarily have arisen that whenever a warrant was issued by an authorised officer all preliminary procedure was duly followed by him is negatived by the contents of the warrant itself and by the vague statement of the Police Sub-Inspector. In fact a warrant for search under Section 6 of the Gambling Act is to be drawn up on form No. P.M. 173e (Vide G.R.H.D. No. 559/4 dated 4-5-1938). A Magistrate while issuing a search warrant should take care to see that a proper form is used, and if he has to use any other form, he has to make the necessary corrections so as to comply with the requirements of that section. Section 6 of the Gambling Act must be construed strictly, because Section 7 gives to an arrest and seizure under it an operation different from that of the general presumption of innocence in criminal eases. We, therefore, hold that the warrant issued by the learned Magistrate for the search of the three houses was not under Section 6 of the Gambling Act, but under Section 96 of the Criminal Procedure Code. It, therefore, follows that the presumption under I. 7 of the Gambling Act does not arise.
5. In the absence of such presumption there is nothing to show that the house was used as a common gaming house. It is true that there is a finding of fact that the six accused were playing cards for stakes. But there is nothing to show that any profit was made out of that gaming by the owner or occupier of the house. It was suggested that such a presumption would arise from the fact that a tin-box with a slit in its lid was found in the neighbouring room, which would indicate that the money thrown into the tin-box through the slit was to go to the owner of the house. But the panchanama shows that there was a pillar in that room which was worshipped and some coconuts were placed at its foot by the worshippers. The accused say that the tin-box was kept in front of that pillar so that any devotee might put some small coins into it for the purpose of purchasing coconuts for the deity. The contents of the panchnama bear out this allegation, and a presumption that the money would go to the owner of the house as the profits of the gaming would not be justified.
6. It is further pointed out on behalf of the accused that according to the view taken in Emperor v. Chimanlal Maneklal (1917) 19 Bom. L.R. 693 the fact that the accused were playing cards on a holiday and that they were all related to each other is sufficient to rebut the presumption, if any, arising under Section 7 of the Gambling Act. But in that case, the accused had gone out to a different place on a picnic party and were playing cards there for small stakes. In the present case the accused do not admit that they were playing cards at all, and their conduct in running away on the arrival of the police is also suspicious. The absence of a proper search warrant and the consequent presumption under Section 7 of the Gambling Act, and the absence of any other evidence to show that the house was used as a common gaming house are, however, sufficient for accepting the reference made by the learned Sessions Judge.
7. We, therefore, make the rule absolute, set aside the conviction of the accused and order that they be acquitted and discharged. The fines, if recovered, should be refunded to them. The order regarding the forfeiture of the articles is set aside. The articles seized should be returned to those from whom they were seized.