John Beaumont, Kt., C.J.
1. This is an appeal by the accused against his conviction under Section s 4(a) and 5 of the Bombay Prevention of Gambling Act. The appeal raises a question which has become rather common in these gambling cases -the question being as to the rights of the accused over the passage in which the gambling took place.
2. The facts are not really in dispute. The accused occupies a room on the second floor of a certain building, and he was found by the police, with accused No. 2, in a passage on the ground floor of that building. He was writing something on a piece of paper and talking with accused No. 2, and on search of the passage certain instruments of gaming were found in the passage. The first question which arises is whether he was guilty under Section 4(a) of the Gambling Act as being a person who was the owner or occupier or had the use of the place where instruments of gaming were found;, that is to say the passage, which is no doubt a place within the meaning of the Section . The second question is whether he was present in a common gaming-house for the purpose of gaming so as to be guilty under Section 5. Now a very similar case was decided by this Court : Emperor v. Gulam Hussein Rawji : (1939)41BOMLR1326 . In that case we held that in Section 4(a) the words 'or having the use of' must be read ejusdem generis with the preceding words ' owner or occupier ' and included only a person having some right over the place-a right less than a right of ownership or occupation but still a definite right, for example a right arising under a licence. In that case the accused had no interest whatever in the passage ; he did not live in the building in which the passage was situate, and he was for all purposes a trespasser in the passage. In the present case the accused lived in a room to which the passage led, the room being on the second floor, and the passage being on the ground floor, and one can safely infer that the accused would have a right of passing along the passage for the purpose of getting to and from his room. Whether he was expressly granted that right or not, we do not know ; but at any rate it would be a right implied from the fact that the room in this building was let to him; but prima facie that would be the extent of his right. In the absence of any evidence to the contrary, we could not infer that the accused had any right, express or implied, to remain in the passage for the purpose of gambling or carrying on his business or for any other purpose. It was only a right to pass and re-pass along the passage. But it is argued by the learned Government Pleader that the accused having a right of way over the passage was a person ' having the use' of the passage, and in Emperor v. Krishnaji Madhusudan : (1939)41BOMLR1114 Mr. Justice Broomfield suggested that the fact that the accused had a right of way over the passage might constitute a sufficient right of user within Section 4(a), but the point did not arise for decision in that case. It was there held that no presumption arose under Section 7 of the Act, so that the observations of Mr. Justice Broomfield were dicta only. In the present case the point does arise for decision, and in my opinion, the decision of this Court in Emperor v. Gulam Hussein Rawji really covers this case. As I have said, we there held that having the use of premises meant having a legal right to use, and I think that means a legal right to use for the purpose in controversy. The fact that the accused had a right to use the passage for a purpose which did not cover the user to which he was putting the premises seems to me to be irrelevant. Of course, it might be held on the facts of a particular case that the accused had an implied right to use the passage for purposes more extensive than a mere right of way. If the passage led only to the accused's room, and there was evidence that he was using it for general purposes, for example if he had a chair or a table in the passage, or if it were shown that the landlord or his agent knew that the accused was using the passage for general purposes, or for a particular purpose which might cover gambling then the Court might hold that the accused was a person having the use of the passage. But in this case we have no evidence whatever that the landlord or his agent knew the purposes for which the passage was being used, or that the accused had any right to use it except as a means of passage. In my opinion, therefore, there is no evidence in this case that the accused had a right to the use of the passage within the meaning of Section 4(a) of the Gambling Act, and therefore his conviction under that sub-Section cannot stand.
3. With regard to the conviction under Section 5, I think again that the case is covered by the previous decision of this 'Court in Emperor v. Gulam Hussein Rawji. Under Section 7 certain presumptions arise when two things are proved. It must be proved first that there was a house, room or place, entered under Section 6 ; and secondly that an instrument of gaming was found in such a house, room or place on the occasion of the raid under Section 6 or upon the person of any one found therein. When those two facts are proved, then two presumptions arise. The first is that the house, room or place is used as a common gaming house, and the second is that the persons found therein were there for the purposes of gaming. Now a common gaming-house is defined in Section 3 as including 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. I think the expression ' using or keeping ' in Section 3 means having a right to use or keep as in Section 4(a) and if the accused was not a person having a right to use this passage, then it would be irrelevant to' prove that he was making a profit out of the gaming carried on there. To bring the case within the definition, it would be necessary to show that profit was to be made for the person owning, keeping or using the passage, that is, presumably, the landlord, and there is no evidence here that the landlord knew anything about the user of the passage. Therefore, as we pointed out in the previous case, if the burden rested upon the Crown to prove that this passage was a common gaming house, they would fail. But they have not got to prove that fact, because having proved the facts necessary to raise the presumption under Section 7 they need not prove anything further, and it becomes necessary for the accused to prove that the passage was not a common gaming house. He might have done that by calling the landlord or the landlord's agent who would probably have said that he had no knowledge whatever of the user to which the passage was being put. But the accused has given no such evidence, and therefore we think his conviction under Section 5 is justified. But the learned Magistrate did not pass any separate sentence under Section 5. He imposed a sentence of a fine of Rs. 600 under Section s 4(a) and 5 generally, and he stated expressly that no separate sentence under Section 5 was passed, so that the whole sentence was under Section 4(a). Herein the learned Magistrate was no doubt wrong. He ought to have imposed a sentence under each Section ; but as he has not imposed a sentence under Section 5, we cannot impose one ourselves, for that would be enhancing the sentence. We might, as the learned Government Pleader suggests, issue a notice to show cause why the sentence should not be enhanced ; but as we pointed out in the earlier case (Emperor v. Gulam Hussein Rawji), the accused probably failed to give the necessary evidence to take the case out of Section 5 because he did not appreciate the law. It seems to us, therefore, that this is not a case in which we ought to give notice of enhancement. The result is that we set aside the conviction and sentence under Section 4(a) and uphold) the conviction under Section 5. The fine, if paid, must be refunded.
4. I agree.