John Beaumont, Kt., C.J.
1. These are two applications in revision against two convictions passed by the Presidency Magistrate, fourth Court. In application No. 243 Dr. Lam was charged with keeping a common gaming house and thereby committing an offence punishable under Section 4(a) of Bombay Act IV of 1887, and in the other case four persons who were in Dr. Lam's premises were charged with being found in a common gaming house and thereby committing offences under Section 5 of the saidAct.
2. Now the evidence is of two kinds. In the first place there is the evidence of a witness named Chand Gulab who says that he was given by the police a marked five rupee note and five marked rupee coins and that he went with that money to Dr. Lam's room and there made certain bets and that Dr. Lam took the marked money for the purposes of the bets, The learned Magistrate says that Chand Gulab is a reliable witness, and he accepts his story. But the difficulty I have in accepting the story is that as soon as he left Dr. Lam's premises he informed the police of the bets there made, and the police at once raided Dr. Lam's premises. It is quite clear from the evidence of Sergeant Taylor, who was the police-officer in charge, that Dr. Lam and the other accused persons who were in Dr. Lam's premises were not anticipating a raid. Although no raid was expected the marked money was not found on the premises, and the conclusion I draw from that is that Chand Gulab did not effect bets with the ten rupees; if he had, they would certainly have been recovered when the police raided the premises a few minutes afterwards. On his own showing Chand Gulab is not a person with a very high sense of honour, because he says that he had made bets previously with Dr. Lam (which Dr. Lam denies), although for the last two years he had been a member of the Anti-Gambling League. He probably thought that he could find a better use for the Rs. 10 which he had been lucky enough to obtain from police than handing them over to Dr. Lam for the police to recover. That is the only direct evidence of any betting. The other evidence is the result of the police raid.
3. There were discovered in the premises of Dr. Lam various slips of paper on some of which were names said to be names of horses and on some certain sums of money were marked. The document on which the learned Government Pleader relies most strongly is Ex. G, which has the names of ten horses which were running at the Bombay races on that day, the day of the raid, and against the names of some of those horses in two columns of the slip headed respectively ' W' and ' P ' were sums of Re. 1-4-0, from which I think one may infer that bets of Re. 1-4-0 had been made or were to be made on certain horses for a Win or a Place. But no betting books of any sort were found. The suggestion apparently is that Dr. Lam was carrying on a book-maker's business. If so, one would expect to find books with records of the bets made. The slips of paper which were found appear to me to be consistent with the view that Dr. Lam was interested in horse racing, as he says, and was making a note of bets which he proposed to make at the races, possibly for himself and his friends as well. But I see absolutely no evidence of anything in the nature of a betting business or' of a book-maker's business being carried on by Dr. Lam or by the other accused who were in his rooms.
4. The way the learned Government Pleader puts the case is this. He says that under Section 3 of Bombay Act IV of 1887, that is to say, the Prevention of Gambling Act, ' instruments of gaming ' is defined as including amongst other things any document or record of any gaming, and 'common gaming house' is defined as meaning ' 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 ', and the learned Government Pleader says that having discovered on the raid certain record of gaming transactions, that is to say, slips of paper with names of horses and sums of money upon them, a presumption arises under Section 7 of the Act that the house or room is used as a common gaming house. Well, if that presumption does arise from the mere finding in the house of a slip of paper with the names of horses and sums of money against them, I should say that the presumption is rebutted by the fact that nothing was found in the house which really suggests that it was being used as a common gaming house.
5. I do not propose to go in any detail through the evidence which has been analysed by the learned Magistrate, but the conclusion I come to is that the documents found in the house are perfectly consistent with the persons who were there, that is the accused, being merely engaged in making private bets for their own entertainment, and the total absence of any books relating to book-making shows that no business of a common gaming house was being conducted. That being so, I think that we must set aside the convictions.
6. There are two observations of a general character I desire to make in connection with this case. The first is that I cannot help thinking that the police exercised their discretion unfortunately in launching this prosecution. It must, I think, have been apparent to Sergeant Taylor, who was in charge of the police, when he found that his marked money was not in Dr. Lam's premises, that his witness Chand Gulab was not a very reliable person, and when he also found on the raid that there was no serious evidence of any gambling business being carried on at this house, I think he must have appreciated that, putting his case at the very highest, there had been a merely technical breach of the Prevention of Gambling Act. If there could be no more than a technical offence, it was, I think, unfortunate to take up the time of a Presidency Magistrate, a very busy man, and the time of this Court which is much in arrears with its work in dealing with such a case.
7. The other observation I desire to make is in connection with the panchnama which was put in. Sergeant Taylor in giving evidence says that he made a search of the premises of Dr, Lam in company of two panchas and he then puts in the panchnama signed by the panchas and apparently that panchnama was treated as being evidence that the panchas had agreed with the accuracy of Sergeant Taylor's evidence as to what he found on the search. Of course the panchnama is not evidence of anything of the sort. If a police-officer conducts a search in company of panchas he may give evidence of that fact. He may say, 'I searched the premises in company of two independent persons whose names were so and so '. But if he desires that the evidence of the panchas is to be used to fortify his own evidence and show that his evidence as to the search is correct, then, he must call these panchas. He is not entitled to put in a signed panchnama and rely on that as evidence that the panchas agree with his evidence. If Sergeant Taylor's evidence had been challenged in this case as to the correctness of what he found on the premises, I should have thought that his evidence was open to this comment that there had been independent persons whom he could have called to supplement and fortify his evidence but whom he had neglected to call or ask the Court to call. The learned Government Pleader says that in Bombay City the practice prevails of putting in thesepanchnamas as part of the evidence of the police witnesses, That is a practice which does not prevail in the mofussil, in which the general practice is to call the panchas, and the same rules of evidence are applicable in Bombay City as in the mofussil. I desire to make it perfectly clear that in my opinion putting in panchnamas signed by panchas as part of the evidence of the police-officer is worthless except to corroborate the evidence of the officer that panchas were employed, and to show that the provisions of Section 103(1) and (2) of the Criminal Procedure Code have been complied with. If the evidence of the panchas is sought to be relied upon, then the panchas must be called and the accused must have an opportunity of cross-examining them. To my mind the last words in Section 103(2) do not negative this right.
8. The application in revision will in both cases be allowed and the accused will be discharged and the fines refunded and the alleged instruments of gaming will be returned to the persons to whom they belonged.
1. R.C. Lam, who is the principal accused in these two cases, is a medical practitioner, apparently of some standing, who has his consulting rooms and laboratory in the Raval Building in Lamington Road. It appears that Inspector Taylor, having received information from one Basdeo, a witness in the case, that Dr. Lam was using these premises for the purposes of a common gaming house, obtained warrant under Section 6 of the Bombay Prevention of Gambling Act, and on the day in question, that is February 14, 1931, sent one Chand Gulab with some marked coins and a slip of paper containing the names of horses to the doctor's premises to lay a bet with him. Information having been given by Chand Gulab that the bet had been duly laid, the police thereupon raided the premises, and certain articles which have been described by the learned Chief Justice, principally some scraps of paper containing the names of horses with in some cases figures against them, were found partly on the persons of other people present in the rooms and partly in Dr. Lam's waste-paper basket and in a cupboard in one of his rooms.
2. The charge against Dr. Lam is under Section 4(a) of the Act. No details have been given. He has been charged with and convicted simply of keeping a common gaming house. Similarly, the charge on which the other accused have been convicted is simply that of gaming in a common gaming house. We understand, however, from the learned Government Pleader that the gist of the prosecution case is that Dr. Lam was in the habit of taking beta on horses running in the Bombay races and that he used his premises in Lamington Road for this purpose, also that the other accused were present on the occasion in question for the purpose of placing bets with him.
3. The evidence to substantiate these charges is partly direct and partly indirect. The direct evidence consists of the statements of the witnesses Basdeo andChand Gulab, who state that on certain previous occasions they had visited the doctor at his quarters in Lamington Road and placed bets with him which were accepted. The witness Basdeo describes himself as a cotton broker, but he is also, as he admits, a professional police informant. On two occasions he has himself been convicted of gambling. It has been alleged by Dr. Lam that there is personal enmity between him and this witness. That allegation can hardly be said to have been proved. But it has been proved that in a certain case No. 38 of 1929, in which this Basdeo was the complainant, the trying Magistrate came to the conclusion that he was a person utterly unworthy of credit who should not be believed upon his oath, I think, therefore, under the circumstances, it would be quite unsafe to rely upon the evidence of Basdeo as a basis for convicting the accused.
4. The other witness Chand Gulab is in the service of an onion seller and has been for two years a member of the Anti Gambling T. League, whatever that may be. It is not alleged that there is any personal animus on his part against any of the accused. But I agree with the learned Chief Justice that his evidence must be said to be completely discredited by reason of the fact that the marked coins, which he states he handed over to Dr. Lam a few minutes before the police raid, were never found. It is also to be borne in mind that though he states that on two previous occasions he had placed beta with the accused, no record of those transactions has been discovered either. The prosecution case appears to be that Dr. Lam was in the habit of receiving bets,i.e., made a business of it, and it is difficult to see how such a business could have been carried on without some acknowledgment of the transactions being given to the punters and some record being kept by the book-makerhimself.
5. The circumstantial evidence consisting of the finding of these slips of paper containing the names of the horses, etc., is obviously deprived of almost all its value once the evidence of Basdeo and Chand Gulab is not accepted. The articles found could be reasonably explained on the hypothesis that the accused and some o his friends were taking shares in tickets to be purchased by one or other of them on the totalisator. It is to be noted that the premises were raided on the morning of February 14, the afternoon of that day being a race day. The Government Pleader argues that this is not the defence put forward by the accused themselves; but in the written statement of Dr. Lam we find this allegation: 'On one occasion I was to meet a few friends at the course and we had decided to back a few horses in partnership on the 'tote', and this is how one of the old slips found from the cupboard bears the names of horses and the amounts I had backed on these horses in partnership with my friends.'
6. As regards the presumption under Section 7 of the Act, on which reliance was placed by the learned Government Pleader, that presumption only arises when 'instruments of gaming' are found ' in any house, room or place entered under warrant.' The definition of 'instruments of gaming' contained in Section 8, as amended by Section 2 of Act VI of 1919, is extraordinarily wide, so wide that if the words were to be taken literally they would apparently include perfectly innocent articles, for instance, the mere record of private bets. It seems to follow that where the alleged instruments of gaming are of the character which we have in the present case, the presumption under Section 7 is one which requires very little evidence to rebut it. It is rebutted in this case, in my opinion, by the failure to find any books of account or any evidence whatever to show that Dr. Lam was carrying on anything in the nature of a betting business in these premises.
7. I agree, therefore, that the convictions in each case should be set aside.