1. This judgment will govern Criminal Appeal No. 341 of 1946 and criminal Revisions Nos. 401 of 1947, 774 of 1946 and 460 of 1947.
2. Sheikh Idu and eight others were found gambling in a certain house. Proceedings were accordingly instituted against them under Sections 3 and 4, Public Gambling Act, 1867, as amended locally. Sheikh Idu was acquitted under B, 8 in Criminal case No. 29 of 1946. All nine were, how-ever, convicted under Section 4 in criminal case No. 28 of 1946. Of the nine Sheikh Idu alone appealed, In the first Court he had been fined Rs. 100. In appeal this was reduced to Rs. 50.
3. These decisions have given rise to the appeal and the revisions now before us. In the appeal the Provincial Government has appealed against the acquittal of Sheikh Idu under Section 8. In the revisions the Provincial Government has filed applications for enhancement first, of the Magistrate's sentence of Rs. 100 fine and secondly of the appellate Court's sentence of Rs. 80. The remaining revision is by Sheikh Idu against his Conviction under Section 4.
4. We will deal with the criminal appeal first. The question here is whether Sheikh Idu was using the house in which the gambling was going on as a common gaming house for his own profit or gain. It is admitted that he is neither the owner nor the occupier of the house and the Crown relied only on the portion of Section 3, which deals with those who use 'a common gaming house.'
5. The evidence establishes that Sheikh Idu was there and that he was gambling. The Circle Inspector of Police (P. W. 1) tells us that he found Idu taking nal or commission of 6 pies in the rupee. We are clear that this witness was not in a position to have any personal knowledge of the fact. He just peeped in according to his own story while the gambling was in progress. His assertion on this point is, in our opinion, no more than an inference from the fact that he found a sum of Rs. 12-5-0 under Idu's thigh. It is for the Court to decide whether from this fact and the fact of gambling an inference can properly be drawn that the Rs. 12-5-0 was nal money and that it was set apart for the use or profit of Sheikh Idu. Therefore, all that the Circle Inspector's evidence establishes is that Idu was present, that he was gambling and that he had kept a sum of Rs. 12-5-0 under his thigh.
6. Badriprasad (P. W. 2) is an unsatisfactory witness. He was tendered a pardon but did not tell the whole truth and so his pardon was withdrawn and he was proceeded against as an accused, He tells us that nal money was being collected but says in one place that it was for Dhaniram and in another that it was for Jhagdoo.
7. Munnilal (P. W. 3) corroborates Badriprasad (p. W. 2) to the extent of the presence of the accused Sheikh Idu and his participation in the gambling. He also tells us that Idu took 10 annas out of Rs. 20 in his presence. We think it legitimate to infer that this was nal money but not that the money was intended for the profit or use of Idu. We have little doubt that nal money was collected, and that would be usual in a case like this, but before Idu can be convicted under Section 8, it has to be shown that the money was intended for his use or profit. There is no proof of that and seeing that this is an appeal against an acquittal, we do not think it would be right to take a different view on this evidence. Simply because a man collects money which it is legitimate to infer is nal money, it does not follow that he does so far his own use because one of the gamblers could quite easily collect that for the use of the owner or the occupier of the house or whoever else is running the establishment.
8. The appeal of the Provincial Government against the acquittal fails and is dismissed.
9. As regards the criminal revisions, they arise out of criminal case No. 28 of 1946, and the first point here is whether the conviction of Idu under Section 4 can be sustained. We think it can.
10. The evidence is, in our opinion, clear that Idu was in the house and that he was playing or gaming with cards. We see no reason to disbelieve the evidence of P. Ws. 1, 2 and 3 to that effect. We also think it proved that nal money was being collected, and though we do not know for whose use this was being done, it is clear that it was being collected for either the owner or the occupier, or at least the user of the house, for gaming purposes. That we think is a legitimate deduction from the evidence, and that satisfies the definition of 'common gaming house' in Section 1 (ii), Public Gambling Act, and that in turn brings this case within the purview of Section 4.
11. It was argued that only a single user of the house is established in this case and that, we think, is correct. For that reliance was placed by the learned Counsel for Sheikh Idu on Emperor V. Bapulal I. L. R. (1936) Nag. 89 : A. I. R. 1936 Nag. 78 : 37 Cri. L. J. 588 where Gruer J. decided that it is necessary to prove habitual user before there can be a conviction under Section 3. With the utmost respect we are unable to see what justification there is for importing words of limitation into the section. The definition in Section 1 (ii) is to the following effect:
In the case of any other form of gaming, any house...used for the profit or gain of the person...using such house.
If A walks into B's bathroom and uses his towel to wipe his hands, he (A) has quite evidently used that towel even though he may have done that only once. So also, if C walks off with D's car and drives it with or without D's permission, he has clearly used that car even though this may have been the first and the only occasion in which that was done. We can see no difference between the use of a room or a house and that of a car or a towel. As the definition does not place any words of limitation on the user, we are unable to import limitations like 'habitually.' Accordingly we hold that even though only a single user of the house is established in this case, that brings the matter within the purview of the definition.
12. The conviction of Sheikh Idu under Section 4 is upheld and his revision against that conviction is dismissed.
13. As regards the other two revisions, they seek enhancement of the sentences respectively of the trial Court and the lower appellate Court. The Provincial Government relies on Section 15, Public Gambling Act because, according to it, there have been several previous convictions of Sheikh Idu. The trouble with that, however, is that these convictions have not been formally proved. It is true that was not the fault of the Crown because the trial Court held that that was unnecessary. At the same time, as we have no proof of those convictions before us, we cannot proceed on the assumption that there have been previous convictions if the matter is contested.
14. In the ordinary way, we would have sent for the records of the cases in which Idu is said to have been convicted and would have permitted the convictions to be proved in the usual way because, in our opinion, the matter was wrongly shut out in the first Court, But here we think that is unnecessary because even if the convictions be accepted, we would not enhance the sentence of the trial Court.
15. Under Section 15 the Court is directed to double the sentence which it would have given to the accused, who has been previously convicted, if he had been a first offender. Now in this case the gambling was not of a very heavy nature. A sum of Rs. 200 is all that was collected among 9 persons. In the circumstances, if Sheikh Idu had been a first offender, we would not have fined him more than Rs. 50, because the maximum penalty under Section 4 is Rs. 200 or imprisonment for one month. That being the case, if the previous convictions had been proved, the utmost we would have given would have been a fine of Rs. 100.
16. The learned Counsel for the accused sees no point in prolonging this matter by sending for the previous records and possibly running the risk of something more drastic than this. Therefore, we will accept the position that there have been previous convictions and sustain the sentence of the trial Court of Rs. 100 and set aside the sentence of Rs. 50 passed in appeal. The revision against the appeal accordingly succeeds and that against the decision of the trial Court is dismissed.