1. This is an appeal against an order of acquittal passed by the Judicial Magistrate, First Class, Karwar, in Criminal Case No. 982 of 1955. Thirteen persons were tried by the Learned Magistrate for offences under Ss. 4 and 5 Bombay Prevention of Gambling Act, 1887. The case for the Prosecution was as follows; Sub-Inspector R. N. Desai of Ankola police Station, haying received infer, mation that a house in the village of Avarsa belonging to the first accused Gauri kom Krishna Bhandari was being used as a common gaming house, applied on 23-8-1955 to the Sub-Divisional Magistrate, Karwar Division, for a warrant under Section 6, Bombay Prevention of Gambling Act.
The Sub-Divisional Magistrate issued a warrant on 25-8-1955 authorising Sub-Inspector Desai to enter House No. 548 Block No. 3, 107 of Avarsa village by night or by day with such assistance as may be required and to use, if necessary, reasonable force for that purpose, and to search every part of the house and to seize and take possession of any property and also of any instruments and materials which he 'Desai may reasonably believe to be kept for the purpose of gambling and forthwith to bring before this Court such of the said things as may be taken possession of returning this warrant', with an endorsement certifying what has been thereunder 'immediately upon its execution.'
Armed with this warrant, Sub-Inspector Desai went to Avarsa on 26-8-1955 with a Police party. He called the panchas, and the police party then surrounded the house. Sub-Inspector Desai and two panchas went towards the western side of the house and saw 12 or 13 persons sitting on the verandah of the house and they also saw some persons throwing coins on the floor and heard them littering the words 'Andar' and 'Bahar'. Sub-Inspector Desai signalled the police party to raid the house.
When entering the house, he found that some persons were trying to run away. Two of those persons were arrested; they were accused Nos. 6 and 11. Two other persons accused Nos. 9 and 10 who had gone into the house were also arrested, Accused Nos. 1, 2, 3, 4, 5, 7 & 8 were on the Varandah, were also arrested. On the floor of the verandah were lying two packs of playing cards and Rs. 23/8/ - in coins. The playing cards and the money found on the scene were attached under a panchanama. Two more persons were arrested from the village on 27-8-1955. They were accused Nos. 12 and 13.
A complaint was lodged against the persons arrested for offence under the Bombay Prevention of Gambling Act, 1887. It was alleged that the first accused was the owner of the house which was raided and that she allowed her house to be used as a common gaming house in consideration of annas 4 to 8 paid to her by the persons accustomed to use her house for gambling, and the other accused were present in the house for the purpose of gaming.
2. At the trial, the prosecution examined B. N. Desai Sub-Inspector in charge of the raid, Narayan Govind police Patil of the village avarsa, Beeranna Honnappa Naik a panch and B. K. Fotdar, the Sub-Divisional Magistrate who issued the search warrant, besides certain other witnesses. In the view of the learned trial Magistrate, the warrant issued by the Sub-Divisional Magistrate Mr. Potdar was a defective warrant and the state was not entitled to rely upon the presumption arising out of the finding of instruments of gaming in the house raided.
He held that there was no evidence led by the prosecution to establish that any particular accused 'offered stakes' on the alleged game of 'Andar Bahar' and that there was no independent and reliable evidence to show that the house of the first accused was used as a common gaining house. In the view of the learned Magistrate, the mere finding of playing cards or coins lying on the floor or even of monies on the persons of the accused did not necessarily lead to the inference that the accused or any of them were gambling in a common gaming house. The learned Magistrate on that view of the evidence ordered that all the 13 accused be acquitted and discharged. Against the order of acquittal this appeal has been filed by the State of Bombay.
3. When any instrument of gaming has been seized in any house, room or place which has been entered under Section 6 or about the person of any one found therein, the Court may raise a presumption that the house, room or place is used as a common gaming house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen by the police officer or by any person acting under his authority.
Section 6 of the act enables a police officer outside the area of Greater Bombay specially authorised in that behalf by a warrant issued by a District Magistrate or a Sub-Divisional Magistrate or a Taluka Magistrate specially empowered by the State Government
'(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, and house room or place which he has reason to suspect is used as a common gaming house, (b) to search all parts of the house, room or place which he shall have so entered, when he shall have reason to suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not, (c) to take into custody and bring before a Magistrate all such persons and (d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein'.
4. By Exhibit 19A, Sub-Inspector Desai had applied to the Sub-Divisional Magistrate for the issue of a warrant requiring that all the powers under Clauses (a) to (d), of Section 6, Bombay Prevention of Gambling Act, be conferred upon him. But the Sub-Divisional Magistrate ordered that a warrant be issued granting powers under Clauses (a), (b) end (d) only. Sub-Inspector Desai, however, arrested all the persons found in the house of the first accused and thereafter released them on bail.
The learned trial Magistrate assumed that be-cause the power to arrest was not conferred upon Sub-inspector Desai, the presumption under Section7 of the Act from the finding of instruments Of gaming could not arise. In our view, the learned trial Magistrate was in error in making that assumption. Section 6 authorises a Magistrate competent in that behalf to issue a warrant conferring powers under Clauses (a) to (d) upon a Sub-Inspector of Police.
The section, however, does not make it obligatory upon the Magistrate to confer all the powers under Clauses (a) to (c) upon the officer to whom a special warrant is issued. If for some reason the Magistrate does not think it necessary to confer an the powers upon the officer to whom a warrant is issued, but in substance authorizes that officer to enter a house suspected to be a common gaming house and to search the house, the presumption under Section 7, in our judgment, must arise. We are unable to hold that the exclusion of one or more of the powers granted under the warrant from the powers conferrable under Section 6 makes the warrant defective.
5. In support of his view that the warrant was defective, the learned magistrate relied upon the decision of this Court; Emperor v. Kaitan Duming Fernad 9 Bom LR 695 (A) and Emperor v. Pokka Kusaluppa 49 Bom LR 150 : AIR 1947 Bom 329 (B). In our view these cases do not support the view propounded by him. In Kaitan Fernad's case (A) there was no warrant for raiding a house suspected to be a common gaming house, but the District Magistrate, who was authorised under the Act to issue a warrant, was present at the raid. At the raid instruments of gaming were found in the house of the accused, taut the prosecution did not examine before the trial Magistrate the District Magistrate under whose direction the raid was carried out. This Court held that a presumption under Section 7 of the Act arises only where there has been a search under Section 6 of the Act and there being no evidence to show that there had been a search under Section 6, the presumption under section 7 could not be availed of by the prosecution. The District Magistrate was not examined before the trial Court, and there was no warrant issued by the District Magistrate on a report made by an officer of the police.
Evidently a warrant can be issued on a complaint made before the Magistrate on oath and alter making such enquiry as the Magistrate thinks necessary and after satisfying himself that there are good grounds to suspect that the house, room or place is used as a common gaming house (see proviso to Section 6). In Kaitan Fernad's case, (A) there being no warrant and there being no evidence that the raid was effected in pursuance of an authority given by a Magistrate under Section 6 of the Act, the Court held that the presumption under Section 7 did not arise. It is difficult to see how that case can have any application to the facts of the present case.
6. In Pokka Klusalappa's case (B) the warrant issued was headed a 'Warrant under section 96 of the Criminal Procedure Code', and there was no evidence to show that the warrant issued was one under Section 6, Bombay Prevention of Gambling Act. On those facts this Court held that
'as neither the statement of the police Officer nor the form and contents of the warrant showed that the warrant was issued under Section 6 of the Act, presumption under Section 7 did not arise, and that in absence of any direct evidence the convictions could not be supported'. In the pre-sent case, the warrant purports to be one issued under Section 6 of the Act, That is expressly so stated in the title of the warrant. The warrant confers three out the four categories of powers which may be conferred upon an officer who may be specially authorised under the Bombay Prevention or Gambling Act. The evidence of Sub-Inspector Desai and the report made by him abundantly show that the warrant, which was prayed for and ordered, was a warrant under Section 6 Bombay Prevention of. Gambling Act and even the Sub-Divisional' Magistrate who granted the warrant has stated that he exercised the powers under the Gambling Act.
The lacuna from which the prosecution case in Emperor v. Pokka Kusalappa (B) suffered is not to be found in the present case. Mr. Jahagirdar, who appears on behalf or some of the accused, contended that the warrant 'was defective Inasmuch as it required Sub-Inspector Desai to take possession of instruments and materials which may be believed by the Sub-Inspector reasonable to be kept for the purpose of gambling and to produce the same before the Sub-Divisional Magistrate. Mr. Jahagirdar says that these powers may be conferred under Section 96, Cri. P. C. and not under Section 6, Bombay Prevention of Gambling Act.
It is true that Clause of Section 6, Bombay Prevention if Gambling Act confers power upon an officer to seize all things which are, reasonably suspected to have been used or intended to be used for the purpose of gaming and which are found in the house suspected to be a common gaming house, and does not impose any obligation upon the officer to produce the things seized before a Magistrate. But the fact that an obligation is cast by a warrant upon the officer in whose favour the warrant is issued to produce the articles seized before the Magistrate who issued the warrant does not, in our judgment, vitiate the warrant so as to disable the prosecution from availing itself of the presumption arising under Section 7 of the Act.
7. Mr. Jahagirdar also contended that the Government of Bombay has by notification prescribed a form of warrant to be issued and the Sub-Divisional Magistrate not having utilised the form and having issued a warrant in a form different from the form prescribed, the prosecution were not entitled to rely upon the presumption under Section 7 of the Act. It is true that the printed form prescribed by the State Government has not been utilised in this case. But, if the powers conferred under warrant are in substance powers conferrable under that section, the fact that the warrant is not in the form prescribed does not in our judgment, invalidate the warrant or affect the regulating of the raid effected in pursuance thereof; Mr. Jahagirdar invited our attention to the observations made by Lokur, J. in Emperor v. Pokka Kusalappa Bant (B), to the following effect :
'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 C. 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 B, 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 cases'.
We are unable to find anything in these observations which supports the contention that departure from the form prescribed or failure to use the form prescribed under the notification referred to, vitiates the warrant. Lokur, J. only pointed out the advisability of using the prescribed form and did not observe that failure to use the prescribed form will vitiate the warrant or affect the presumption under Section 7, of the Act.
8. In that view of the case, we are unable to agree with the learned trial Magistrate that the presumption under Section 1, Prevention of Gambling Act did not arise on the facts of the present case. We must, however, point out that accused Nos. 12 and 13 were not arrested on the verandah on which accused Nos. 1 to 5, 7 and 8 were found. There is on the record no clear and reliable evidence which justified this Court in setting aside the order of acquittal of accused Nos. 12 and 13 passed by the learned trial Magistrate.
Similarly, it appears that accused Nos. 9 and 10 on the prosecution evidence, were not at the place where the instruments of gaming were found. They were actually in the house at the time when the police officer raided the house of the first accused. So far as accused Nos. 9 and 10 are concerned, therefore the state of the record does not Justify this Court in reversing the order of acquittal.
9. We, therefore, set aside the order ofacquittal passed in favour of accused Nos. 1 to8 and 11 and direct that they be tried by thelearned trial Magistrate according to law. Weconfirm the order of acquittal passed in favourof accused Nos. 9 10, 12 and 13.
10. Order accordingly.