John Beaumont, Kt., C.J.
1. This is an appeal by the accused against his conviction under Sections 4(a) and 5 of the Bombay Prevention of Gambling Act. The facts proved are that the accused was receiving bets in a passage on the ground floor of a house in a road leading out of Jacob Circle on May 26, 1939. A marked coin proved to have been used for the purpose of placing a bet, a notebook and a sutta chit were found in this passage, and, I think, they are instruments of gaming. It is not shown that the accused had any interest whatever in the passage. He lives at Bhendi Bazaar, and as far as the evidence goes he was a mere trespasser in the passage. The evidence shows that he had been seen in this passage on two previous occasions, but there is no evidence that his user of the passage was with the knowledge or permission of any person who owns or controls such passage.
2. The first question which arises is whether in those circumstances the accused can be convicted under Section 4(a). That sub-section is directed against the owner, or occupier or person having the use of any house, room or place, who opens, keeps or uses the same for the purpose of a common gaming house. The passage in question is in my opinion a 'place' within the meaning of the sub-section and it is argued for the prosecution that the accused had the use of this place since he was taking bets there. In my opinion, however, the words 'having the use of' must be read ejusdem generis with the previous words 'owner or occupier' and mean 'a person having the right to the use of' under some title, e.g., a license which is less than ownership or right of occupation. The whole of Section 4 is directed against those who enable premises to be used as a common gaming house ; Section 5 deals with persons who resort to such premises for the purpose of gaming. The point is illustrated by the case of Rex v. Albert Deaville  1 K.B. 468 where the accused was a book-maker who used to frequent the bar of a public house and transact betting there. It was held that inasmuch as in that case there was no evidence that the owner or occupier of the public house knew what was happening it could not be said that the bookmaker had the use of the public house within the meaning of the English Betting Act, and the case was distinguished from a previous decision in which in similar circumstances it had been shown that the conduct of the book-maker was with the knowledge of the owner or occupier of the public house, and the Court had held that the book-maker was acting under an implied license. In the present case we have no evidence whatever from which it can be held that the accused had got anything in the nature of a license to use the passage from a person entitled to give such license. In my opinion, therefore, the accused cannot be convicted under Section 4(a).
3. The next question is whether the accused was rightly convicted under Section 5, which makes it an offence to be found in any common gaming house for the purpose of gaming. Now, a common gaming house is defined in Section 3, (so far as material) as a place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, or keeping such place. There is, as I have pointed out, no evidence in this case as to who is the owner or occupier or keeper of this place and therefore necessarily no evidence that the instruments of gaming found there were being kept or used for the profit or gain of such person, and if the burden of proving the case rests on the Crown they have not discharged that burden. But under Section 7 certain presumptions arise against the accused when any instrument of gaming has been found in a place entered under Section 6, and in this case the passage was raided under the powers contained in Section 6. The presumptions which arise from the finding of instruments of gaming in the passage are that the place was used as a common gaming house and that the persons found there were there for the purpose of gaming, so that the Crown having proved the finding of instruments of gaming, and the presence of the accused in the passage, the burden is thrown upon the accused to show that the place was not a common gaming house. This burden he has not discharged and therefore his conviction under Section 5 was, we think, justified.
4. But we cannot help feeling that the accused's position was rendered difficult by the case of the prosecution which was that he was himself the person liable under Section 4(a). Having failed to prove that, it seems to us a little hard on the accused for the prosecution to turn round and say, 'you have failed to prove that somebody else was owner or occupier'. Probably if this aspect of the matter had been present to the mind of the accused he could have proved that in point of fact the owner or occupier of this passage was not getting any benefit whatever out of the gaming, and knew nothing about the use to which the passage was being put.
5. We think, therefore, that although the conviction of the accused under Section 5 must be upheld we ought in the circumstances very materially to reduce the fine, and we propose to reduce the fine in the special circumstances of this case to one of Rs. 10 and set aside the conviction under Section 4(a). The excess of the fine to be refunded.