1. The applicant was convicted under Section 12(a) of the Bombay Prevention of Gambling Act by the Judicial Magistrate, First Class, Darwha, and was sentenced to pay a fine of Rs. 50, or, in default, to undergo rigorous imprisonment for 15 days. This conviction was upheld by the Sessions Judge, Yeotmal, and the applicant has now come to this Court challenging his conviction.
2. The applicant along with three other accused, who had admitted the guilt, were alleged to be found gaming in a public place on January 22, 1967. The place where they were found was under a tree in an open place and it is alleged that the place was raided by a Police Head Constable P.W. 3. Shankarrao along with two panchas P.W. 1 Irsharullah Khan and P.W. 2 Miyankhan. According to the prosecution, some other persons were also gaming, but they ran away and only the present applicant and three other persons were found. It is alleged that in front of the accused Rs. 10 were found and Us. 11 were seized from his person.
3. The accused denied these allegations and according to him, he was proceeding to village Jawalgaon when the Police Head Constable met him on the Way and brought him to the village where cash was taken out and a false case was foisted upon him. The applicant alleges enmity with Head Constable Shankarrao, as the applicant says he had complained to the higher police authorities against him because he; had abused him before and the applicant had also moved for a transfer of the Head Constable. To prove this earlier incident of abusing by the Head Constable, two defence witnesses were examined by the accused. The two panchas who were said to be present when the Panchanama was made turned hostile and their evidence was rejected by the trying Magistrate. The Panchanama recorded that pool money was collected and on the spot 52 cards were found. The only evidence before the trying Magistrate left was that of P.W. 3 Shankarrao, who was the Head Constable. Inspite of the fact that the trying Magistrate held that there is no independent corroboration of the evidence of the Head Constable and in-spite of the statement of the Head Constable that no actual gaming was witnessed by him his evidence with regard to the raid was accepted by the, trying Magistrate. The trying Magistrate gave effect to the presumption arising out of the finding of the cash and the playing cards and took the view that though the presumption was very weak the accused had an opportunity to rebut the presumption. The case of the accused before the trying Magistrate was that there was no evidence to show that actually gaming was going on but the trying Magistrate took the view that under the provisions of Section 12 of the Act it was not necessary for the prosecution to prove actual gaming and he held he would be justified in presuming that the accused was there for the purpose of gaming. It is not disputed that there is no positive finding, and indeed there could not be, on the evidence 011 record that gaming was actually going on. The learned trying Magistrate rejected the defence of the accused and found him guilty of an offence under Section 12(a) of the Bombay Prevention of Gambling Act and sentenced him. to pay a fine of Rs. 50, or in default to suffer rigorous imprisonment for a period of fifteen days.
4. The accused challenged his conviction by a revision application before the learned Sessions Judge, Yeotmal. The learned Sessions Judge found that the trying Magistrate was justified in accepting the evidence of the Police Head Constable and he confirmed the conviction. Inspite of the fact that it was the definite case of the accused that the Head Constable was not well-disposed towards him because of some earlier incident, the learned Sessions Judge found that it was not suggested that the Head Constable was in any way inimically disposed towards the accused, or that he had motive to involve the accused without, any reason. These observations do not appear to be correct, because, as stated above, it is the case of the accused that he had moved for transfer of the Head Constable and had complained to the higher authorities about his conduct. The order of the learned Sessions Judge also does not disclose that he had directed his attention as to whether the prosecution had succeeded in proving that the accused was found gaming. The revision application having been rejected, the applicant has now come to this Court challenging his conviction.
5. The substantial contention raised by the learned Counsel for the applicant is that no conviction under Section 12 of the Act could be sustained unless there is a finding that the accused was found gaming and in the absence of any finding to that effect by any of the Courts below his conviction was liable to be set aside. There is great substance in this contention. Section 12 of the Act empowers a police officer to apprehend and search without warrant certain types of persons. The relevant part of Section 12 with which we are concerned is as follows:
12. A Police Officer may apprehend and search without warrant-
(a) any person found gaming or reasonably suspected to be gaming in any public street or thoroughfare, or in any place to which the public have or are permitted to have access or in any race-course ;...
Any such person shall, on conviction, be punishable with fine which may extend to three hundred rupees, or with imprisonment which may extend to three months and where such gaming consists of wagering or betting or of any such transaction as is referred to in the definition of gaming given in Section 8, any such person so found gaming shall, on conviction, be punishable in the manner and to the extent referred to in Section 4, and all moneys found with such person shall be forefeited.
A reading of the above quoted provisions will show that though the police officer is empowered to apprehend and search without warrant any person as described in cl, (a) of Section 12 of the Act, what is punishable under that section is only the act of gaming on. the part of the person so apprehended or searched. It is only on the proof of the fact that the accused was actually gaming that a prosecution tinder Section 12 of the Act can succeed. Merely because a police officer has been empowered to apprehend and search a person reasonably suspected to be gaming, it does not mean that the prosecution is absolved, of the obligation to prove that such person was found gaining in a public place. The provisions of Section 12(a) of the Act were considered in a Full Bench decision of this Court in Emperor v. Somabhai Govindbhai : AIR1938Bom484 . The following observations in the judgment delivered by Broomfield J. in that case are relevant (p. 1087) :
It would be a remarkable departure from the accepted principles of criminal justice if the mere fact of being reasonably suspected by a police officer were to be held sufficient to justify a conviction of a criminal offence. Owing to the interpolations made from time to time in the Act the law of gambling has no doubt assumed a form different in some respects from the intention of the original framers of the Act. But I cannot believe that the law has been changed to this extent A man may be arrested on a reasonable suspicion of gaming in a public place but he can only be convicted of the offence at which the section is aimed, vis actual gaming in public.
(Italics are mine).
This view was accepted by Beaumont C.J. in the same case, who in his judgment observed (p. 1090) :
. ..I may observe in passing that I entirely agree with Mr. Justice Broomfield's view that the conviction must be of gaming, and not merely of being reasonably suspected to be gaming.
It appears, therefore, to be beyond controversy now that unless the prosecution proves that gaming was actually going on in a public place a prosecution under Section 12 of the Act cannot succeed.
6. The Head Constable P.W.3 Shankarrao who is the only prosecution witness relied upon by both the Courts below has stated in his cross-examination that he could not say which game was in progress. The trying Magistrate accepted his evidence that no gaming was actually witnessed by him. The prosecution evidence, therefore, in this case is clearly insufficient to establish the fact of training in a public place. As I have already pointed out none of the two Courts below have also given a definite finding that the accused was, in fact, gaming. If the prosecution has failed to establish this material fact, which they were bound to, the accused is entitled to be acquitted, because no liability could be fastened on him, as ingredients of the offence made out in Section 12 of the Act have not been proved against him.
7. The revision application is, therefore, allowed and the conviction and sentence passed against the accused is set aside. Fine, if paid, be refunded to him.