1. The Sessions Judge, Akola has sent this reference with a recommendation that the conviction passed by the Judicial Magistrate First Class. Akola on the three-accused-opponents for an offence punishable under Section 12 (a) of the Bombay Prevention of Gambling Act (hereinafter called the Gambling Act should be set aside.
2. The police Headconstable Govindrao Nimbalkar had received an information about gambling at village Palso Badhe. He, therefore went to that village on 13-8-1967 and found the accused gaming with cards at about 2.30 P. M. on a road in front of a hotel there. The cards and the money which were lying there along with the cards and money which were on the person of the accused were all seized in the presence of the panches. A case was thereafter launched. The accused denied having committed any offence. Their explanation was that they were only taking tea in the hotel and they were not gaming outside. The learned Magistrate after hearing the evidence came to the conclusion that the prosecution did establish that the accused were found gaming at a public place in front of the hotel of one Waghmare on that day. He accordingly therefore passed an order of conviction for an offence punishable under Section 12 (a) of the Gambling Act. The accused went in revision before the Sessions Judge against their conviction and sentence which was only of a fine of Rs. 35
3. The learned Sessions Judge came to find in this revision application that the applicants were found at a public place. He is however of the view that the prosecution have not established that the accused were gaming at a public place with cards for money. According to him, the prosecution have not established what type of gamine was going on at that place. According to him. the prosecution in order to establish that the accused were gambling also should establish the nature of gaming. He relied on Narayan v. State of Maharashtra 1969 Mah LJ 40 and according to him the circumstances in that case were more or less similar to the circumstance in the instant case before me. The learned Sessions Judge was of the view that since the prosecution have not established the gaming by the accused, therefore, on the application of certain observations in the above cited case, the accused here also should be acquitted. Accordingly, therefore he recommended that the conviction of the accused-opponents should be set aside.
4. We are here concerned with Section 12 of the Gambling Act. The relevant portion 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:
X X X X X X XAny 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 3 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 forfeited. x x x x x x
It is therefore clear that any person found gaming has to be punished. In other words if the prosecution establishes that a person was found gaming, then he will have to be punished. Under Section 3, 'gaming' includes wagering or betting. Therefore if the prosecution establishes that the accused was betting with certain instruments of gaming such as cards, then he could be punished.
5. In Emperor v. Somabhai AIR 1938 Bom 484, the Full Bench of this High Court has taken a view that the mere fact of being reasonably suspected by a Police Officer cannot be held sufficient to justify a conviction of a criminal offence. Now, therefore let us see what are the facts in. so far as our case is concerned.
6. The learned Magistrate who has convicted the accused has come to the conclusion that the prosecution have established that the accused were found gaming at a public place in front of a hotel there at village Palso. Therefore, here is a finding of fact implicating the accused with a gaming. But the learned Sessions Judge appears to be of the view that this finding of fact is not proper because neither the witness Govindrao nor witness Narayan is in a position to say what type of game was actually going on. Is this view correct Reading the evidence of Head-constable Govindrao he says that the accused were found gaming with playing cards; there was money on the playing cards; money was found there and money was also found with the accused. He was merely suggested that the accused were playing cards as usual. He denies that suggestion. Nothing was asked as to what was the nature of the gaming. We then come to the evidence of Narayan. He has also stated that the accused were sitting on the road there playing cards. The money was lying on the ground. The playing cards were also on the ground. In the cross-examination he says that he knew what kind of gaming was going on there. According to him, the accused were playing the doubling game. Nothing more was asked. Evidently, therefore, all this evidence clearly shows that the accused were betting in the play of cards and the instruments of gaming such as the cards and money were all there.' There is therefore, ample evidence to show that the accused were gaming there at a public place. In fact, the panch witnesses also give the name of the game as '(sic)'. The first information mentions the game as ' (sic) '. The learned Magistrate, therefore, has considered all this evidence and come to the conclusion that the accused were gaming. In my view the observations therefore, of the learned Sessions Judge in this reference are without basis.
7. The learned advocate for the accused relies on some observations of my learned brother Mr. Justice Chandurkar in 1969 Mah LJ 40. That was a case where the Head-constable had given evidence and stated that no actual gaming was witnessed by him. This evidence was accepted by the trying Magistrate. It was therefore contended before the trying Magistrate that there was no evidence to show that actually the gaming was going on, but the trying Magistrate took the view that under the provisions of Section 12 of the Gambling Act it was not necessary for the prosecution to prove actual gaming and he held that he would be justified in presuming that the accused was there for the purpose of gaming. Such were the facts in that case. The learned Magistrate therefore naturally was trying to find out evidence of gaming by the accused there. Therefore, since the trying Magistrate accepted the evidence of the Head-constable and came to the conclusion that no gaming was actually witnessed by him, the prosecution evidence was, therefore, found to be insufficient to establish the fact of gaming in a public place. None of the two courts below there also gave a finding that the accused was in fact gaming In those circumstances. Mr. Justice Chandurkar decided that the accused was entitled to be acquitted. So far as the facts of our case are concerned they are quite different. I do not think the above cited case could in any way help the accused in our case. There is a finding by the learned Magistrate that the prosecution have established that the accused were found gaming at a public place. I find satisfactory evidence in favour of this decision.
8. I cannot therefore, accept the reference. The reference, therefore, is rejected. I restore and confirm the order of conviction and sentence passed by the trial Court. I am told the accused have already paid the fine.