R.S. Broomfield, Ag. C.J.
1. The appellant in this case has been convicted under Sections 4(a) and 5 of the Bombay Prevention of Gambling Act (Bom. IV of 1887) and sentenced to pay a fine of Rs. 250 with seven weeks' rigorous imprisonment in default.
2. The facts appearing in evidence are these. Sub-Inspector Shevde had received information that gambling was going on in a passage on the first floor of Keshavji Nathoo Sailor's Chawl on Frere Road. After verifying the information, on April 2, 1938, he marked an eight anna coin and gave it to one Pandu Tukaram to bet on the figures 5 and 2 as a double. Pandu then went to the chawl accompanied by a police constable, who stood on the staircase while Pandu went up to the accused who was in the passage. The punter laid the bet with the accused and informed the Sub-Inspector of it, whereupon the place was raided. The accused was found alone in the passage and in his hand tied up in a handkerchief was the sum of Rs. 7-9-0 in which the marked coin was included. Apparently information had been given that the accused after taking bets was in the habit of going to a water closet on the same landing. The police took the Panch and the accused to this water closet, and on the water tank there was found a match box which contained a slip of paper, exhibit B. On this are a number of figures and a few names in Marathi.
3. The learned Magistrate has found that Ex. B. is not an instrument of gaming. In the first place it is not shown to be in the handwriting of the accused ; in the second place it is obviously not a record of the punter's bet or of any betting which had been going on for some time. It is dated in fact July 7, 1937, nine months before the raid. The learned Magistrate is, therefore, perfectly right in holding that it is not an instrument of gaming, and the absence of any evidence of this kind is a serious weakness in the prosecution case. If instruments of gaming are found, which are not introduced by the bogus punter himself like marked coins, that is very good independent corroboration of the punter's evidence that the marked coin was also an instrument of gaming. In this case there is no such independent corroboration. On the contrary the finding of this particular piece of paper in the water closet seems to be a somewhat suspicious circumstance. It is very difficult to see why a person who was really using a passage for gaming should keep a record of bets made nine months before (that and nothing else) in a match box in the water closet.
4. The first question to be considered, therefore, is whether the rest of the evidence against the accused is sufficient to justify his conviction. The punter's evidence is very brief. He says he was given an eight anna piece to play on the double of 5 and 2, and he went to the first floor and played with the accused. He also says that he had previously played with the accused in this place. In cross-examination he was asked whether he had ever been in the dock and at first he said No. Then he admitted that eight or nine years ago he was prosecuted for murder. He was acquitted in this case and therefore this may have been his misfortune. But he also had to admit that four years ago he was convicted of criminal misappropriation in three cases. The standard of respectability of these police agents is pretty low, but it would seem that this person is disreputable even by that standard.
5. The police constable who accompanied the punter deposed that he stood on the staircase leading up to the first floor, three or four steps below the top, and he claimed to have seen the punter playing with the accused. It was brought out in his cross-examination that he had made some contradictory statements, and apparently there is some doubt as to whether he could have seen anything from the place where he was. The learned Magistrate evidently did not regard him as a very reliable witness. In any case the most he could possibly have seen was the punter going up to the accused and giving something to him. He could not possibly have heard anything.
6. 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. It is to be noted also that in that case a conviction was upheld which rested simply on the evidence of the bogus punter supported by the fact that a marked coin was found with the accused. But it was a case in revision, and, as I pointed out in my judgment, if we had been dealing with the case in appeal and had to satisfy ourselves as to the sufficiency of the evidence, we might have taken a different view. 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.
7. That is enough to dispose of the appeal, but we wish to say something on another aspect of the case. These prosecutions for gaming in passages have recently become very common and they appear to involve a question of construction of the Act of considerable difficulty. A passage may be a place within the meaning of the Act as held in Emperor v. Ismail : AIR1930Bom49 . See also in that connection (1) Emperor v. Fattu Mahomed : (1913)15BOMLR689 and (2) Brown v. Patch  1 Q.B. 892. A passage may also no doubt be a common gaming house if it otherwise satisfies the definition of such a place. In Emperor v. Ismail it was an enclosed passage in front of a room rented by the accused. Such a place, if appropriated to the purpose of gaming and localised as a place where gaming goes on, may well come within the definition, for the occupant of the room might be said to have the use of the passage as appurtenant to the room. But the position is obviously different when we are dealing with a passage unconnected with any place occupied by the accused. The accused in this case has a pan shop on the ground floor of this building. But the passage in question is on the first floor.
8. According to the definition in Section 3 of the Act 'common gaming house' means a house, room or place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room or place, whether by a charge for use of the instruments of gaming or of the house, room, or place, or otherwise howsoever. According to the ejusdem generis rule of construction the word 'using' should connote some sort of right or some sort of possession. In Section 4(a) we have the words 'whoever being the owner or occupier or having the use of any house, room or place,' and those words ' having the use of' in the context seem to imply something more than mere using even though the use may be habitual.
9. The definition of 'common gaming house' in the Indian Act is borrowed from the English Betting Acts, and it has been held in England that the use is not of the kind prohibited unless it imports some measure of possession or control, for the person 'using' is one who, although the designations 'owner,' 'occupier,' or 'keeper' do not apply to him, is nevertheless some other person who is analogous to, and is of the same genus as, the owner, occupier, or keeper : Halsbury, Vol. XV, p. 513, para 920. The leading English authority on the point is Powell v. Kempton Park Racecourse Co.  A.C. 143. This majority decision of the House of Lords has given rise to some difficulties which will be found discussed in Street's Law of Gaming, pp. 165 and following. But the proposition stated in Halsbury appears to be the law in England, and, if so, it is probably the law in India also. In cases where the passage is a place to which the public have access, or are permitted to have access, there might be an offence under Section 12 of the Act, but that is not the charge in the present case and there is no evidence as to public access to the passage.
10. It would seem that there may perhaps be a casus omissus under the Act, viz., where the place in which gaming is carried on is neither a public place, because the public have not access to it, nor a common gaming house within the definition, because there is no person who can be described as an owner, occupier or person using or having the use of the place for whose benefit the gaming is carried on. Under Section 7 of the Act a presumption arises when instruments of gaming are found in a place that it is a common gaming house. But, if the circumstances show that the only person who can make a profit from the gaming is not the owner, occupier or person using or having the use of the same within the meaning of Sections 3 and 4 of the Act, it seems that the presumption must be rebutted and that no conviction would be possible either under Section 4 or Section 5.
11. As at present advised we feel considerable doubt as to whether the accused in this case could have been convicted in any event. But it is not necessary for us to decide the point, because, for the reasons I have given, we are not satisfied that any instrument of gaming was found in the passage or that the evidence that the accused accepted bets can be relied upon.
12. We allow the appeal. The accused is acquitted and discharged. The fine, if paid, should be refunded.