1. This is an application in revision, and the judgment which it is sought to revise is a judgment convicting the petitioners under Section 5 of the Bombay Prevention of Gambling Act IV of 1887.
2. The facts are these : On the night of 22nd September last, Mr. Harker, the Deputy Commissioner of Police, Bombay, received certain information in connection with an offence of gambling. He administered an oath to his informant and took that informant's statement. He then associated with himself other persons, including certain police officers, and raided a house in the City, in which house these petitioners were found with cards and small coin lying near them.
3. The section under which the petitioners have been convicted lays down that whoever is found in any common gaming-house playing or gaming with cards shall be liable to a certain punishment ; and a ' common gaming-house' is defined as meaning a house, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room of place.' The conviction recorded by the learned Magistrate has proceeded on the application-of the rule of law, or, as it has been termed, the presumption laid down in Section 7 of the Act, which enacts chat when any cards are found in any house, room or place entered under warrant issued under the provisions of Section 6, it shall be evidence, until the contrary is made to appear, that such house, room or place is used as a common gaming-house. Section 6 in its turn enacts that it shall be lawful for the Commissioner of Police in the City of Bombay, upon any complaint made before him on oath, that there is reason to suspect any house to be used as a common gaminghouse, and upon satisfying himself after enquiry that there are good grounds for such suspicion, to give authority, by special warrant under his hand to any Inspector or other superior officer of police to enter a house, to take into custody-all persons whom he finds there and to seize all instruments of gaming.
4. It is admitted before us for the purposes of the present argument that the conviction is good if the rule of evidence stated in Section 7 of the Gambling Act applies to the present facts and is bad if it does not so apply. The only question, therefore' we have to consider is whether the Magistrate was right in giving effect to this rule; and for the purposes of the argument we will assume that the Deputy Commissioner occupied the same legal position as the Commissioner of Police would have occupied if he himself had made the raid. It remains to see what those powers are which are vested in the Commissioner, Under Section 6 they are merely powers to give authority by special warrant under his hand to a subordinate police officer.
5. Relying upon this Court's decision in Emperor v. Fernad I.L.R. (1907) Bom. 438; 9 Bom. L.B. 695 the learned Magistrate has held that the proper constructions of this section is that the Commissioner has himself power to do that which under the section he is empowered to authorise a subordinate police officer to do. In the case cited, it was held by this Bench that since the First Class Magistrate has, under Section 6 of the Gambling Act, power to give authority to a police officer of a certain class to make the arrest and the search, the Legislature must be presumed to have intended that the First Class Magistrate should have the authority to make the arrest and the search himself, if necessary. And it is obvious that what is true of the First Class Magistrate under the section is true of the Commissioner of Police. Mr. Raikes directed our attention to the fact that those observations in the Court's judgment were obiter, being unnecessary to the decision which was arrived at. However that may be, and whatever our own view of the question might be if the matter were now res Integra for our consideration, we are not prepared to base our present judgment upon a view of Section 6 directly contrary to the view taken in Fernad's case. We must, therefore, assume for the purposes of the present argument that the observations quoted correctly embody the meaning of the Legislature in regard to Section 6 of the Act.
6. That, however, is not decisive of the question before us, for that question depends immediately not upon Section 6 but upon Section 7. It must be remembered that this is a penal statute and must be construed strictly. According to Section 7 there are certain special circumstances where, when a raid is made, the mere finding of cards or dice is to be taken as evidence that the house in which they are found is used as a common gaminghouse, but those special circumstances are carefully restricted by definition, and one essential part of the definition is that the house in which the cards are found should be a house 'entered under warrant issued under the provisions' of Section 6. While, therefore, we must now assume that the Deputy Commissioner of Police had authority to enter this house under Section 6, we cannot concede that the presumption established by Section 7 ought to be applied. For the section declares that it arises only if the house is entered under the special warrant, and here admittedly it was entered without such warrant. The learned Advocate General has suggested that our construction of the Act falls short of giving full effect to the intention of the Legislature in enacting these sections; but the answer to that is that the only clue which we, as Judges, have to the intention of the Legislature is the language which the Legislature has elected to use. If there is substance in the Advocate General's contention, we can only reply that it is the not uncommon case where the draftsman voluit sed non dixit: it is possible that he meant to say so ; it is certain that he has not said so. We cannot add sections of our own to penal statutes with a view to improve them by some fancied completeness or consistency.
7. Speaking, not of a penal statute but of the Companies Act, 1862, Lord Watson in Salomon v. Salomon & Co.  A.C. 22 said, ''Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.' And in the same case Lord Herschell, discussing the same point, observed: ' I know of no means of ascertaining what is the intent and meaning of the Companies Act except by examining its provisions and finding what regulations it has imposed. '
8. In the present case it is a condition precedent to the success of this conviction that somewhere in the Act should be found a declaration that, notwithstanding the provisions of Section 7 requiring that the house should have been entered under the special warrant before this particular presumption can arise, the presumption equally arises though the house has not been so entered, provided that the entering police officer be the Commissioner himself. There is no such declaration. On the contrary, as the Act stands, it is fatal to the prosecution; and our duty is to administer the Act as we find it. We must hold that since the imperative provisions of Section 7 have not been satisfied, the special rule of evidence authorised by that section does not come into operation.
9. We, therefore, set aside the convictions and sentences and direct that the petitioners be acquitted and discharged.