1. The petitioners before this Court were tried by the first class Magistrate of Broach on charges under the Bombay Prevention of Gambling Act of 1887. The accused Nos. 1 to 27 were convicted under Section 5 and accused No, 28 was convicted under Section 4 of the Act.
2. On the occasion of the annual fair at Shuklatirtha some of these persons had gone there and occupied the house in question. In pursuance of a warrant under Section 6 of the Act, a search was made, when these persons were found playing cards and some money also was found which was the result of small slakes while playing cards. The learned Trial Magistrate has relied upon Section 7 of the Act and has presumed that the house where the play was going on was a common gaming house within the meaning of the Act. 'But that Section shows that the presumption is rebuttable. In this case the facts found by the Magistrate, stated in his own words, are as follows: 'They were a party of friends out on a picnic. They amused themselves for a time by playing with cards for small stakes. They were joined by some others who hailed from the same town.' The money that was found there is not proved in the case to have been collected for the gain or profit of any persons owning, occupying or using the house. The book in which the entries are made, in my opinion, does not show that the purpose of noting the small entries was to show the gain or profit to any particular persons. Apart from this, it seems to me that the fact that these persons occupied the house temporarily when they were out on a picnic party and were playing there for small stakes is sufficient under the circumstances to rebut the presumption under Section 7 that it was a common gaming house. The fact that the persons found in the house belonged to different castes is in no way against the accused under the circumstances, There is no evi deuce in the case to show that the owner of the house* accused No. 28, had any knowledge whatever of what was going on in the house, nor is there anything to show that he had let out the house for any improper purpose. On the facts of this particular case it seems to me that the presumption which the learned Magistrate has relied upon is sufficiently rebutted and that the house is not a common gaming house within the meaning of the Act.
3. I would, therefore, make the Rule absolute, set aside the convictions and sentences of all the petitioners and direct that the fines, if paid, be refunded.
4. I agree. In my opinion the presumption arising under Section 7 is rebutted under all the circumstances of the case as regards accused Nos. 1 to 27. As regards accused No. 28 I think there is no evidence at all.