1. This is an application for revision of a conviction and sentence of the applicants by the First Class Sub-Divisional Magistrate, Broach, for an offence in the case of applicants Nos. 1, 2 and 3 under Section 4 of the Bombay Prevention of Gambling Act and in the case of applicants Nos. 4 and 5 for an offence under Section 5 of the same Act. The District Magistrate, Broach, has made a reference to this Court recommending that the sentences of applicants Nos. 1 and 2 may be enhanced. The application and the reference have been heard together. The applicants were found in a house when the complainant the Home Inspector of Police entered it under a warrant issued to him by the District Superintendent of Police under the provisions of Section 6 of the Bombay Prevention of Gambling Act. On making a search of the house the Inspector found certain papers and account books which were of the nature of instruments of gambling. The accused were arrested by the Inspector under the warrant and the instruments of gambling were attached by him.
2. It is contended on behalf of the applicants that the warrant under which the Inspector entered the house, arrested the applicants and attached the papers and account books was not according to law, and therefore no presumption would arise under Section 7 of the Act that the place was a common gaming house. The evidence shows that the Home Inspector on receiving certain information with regard to the doings that were going on in this house, took the informer with him to the District Superintendent of Police, and himself made a complaint on oath before the District Superintendent of Police setting out that there was reason for him to suspect that the house in question was being used as a common gaming house. The District Superintendent of Police after investigating the matter issued the warrant. It has been urged by Mr. Thakor on behalf of the applicants that Section 6 of the Bombay Prevention of Gambling Act does not contemplate the issuing of a warrant upon a complaint made by a police-officer. The complaint on oath he contends should have been by the informer and not by the police-officer. The language of Section 6 of the Gambling Act, in our opinion, is wide enough to include a complaint on oath made by a police-officer. The complaint can be made before any Magistrate of the First Class or any District Superintendent of Police or any Assistant or Deputy Superintendent empowered by Government in that behalf and the words are 'upon any complaint made before him on oath.' Had it been the intention of the Legislature to exclude a police-officer from the class, of those who are competent to make a complaint on oath in this connection we would expect to find words to that effect in this section. In our opinion the warrant was properly issued, Mr. Thakor has also contended that it was illegal to have issued the warrant to the police-officer who had sworn on the complaint before the District Superintendent of Police. We do not find any words in Section 8 which would restrict the issue of the warrant by the District Superintendent of Police in this manner. The warrant, in our opinion, was properly issued.
3. The warrant having been properly issued and instruments of gaining found in the house entered under the warrant a presumption arises under Section 7 of the Bombay Prevention of Gambling Act that the house was being used as a common gaming house and that the persons found there were there for the purpose of gaming. As applicants Nos. 4 and 5 were among those found in the .house when the police-officer entered it under the warrant they would be properly convicted under Section 5. The Magistrate has passed a sentence of Rs. 50 fine on each of these applicants and has imposed a sentence of two months' rigorous imprisonment on each in default of the payment of fine. The sentence of two months' rigorous imprisonment in default contravenes the provisions of Section 61 of the Indian Penal Code by which the period in default must not exceed one-fourth of the maximum substantive sentence of imprisonment that can be imposed. The maximum substantive imprisonment which can be imposed on conviction for an offence under Section 5 is one month's imprisonment only. The sentence in the case of applicants Nos, 4 and 5 should be altered by changing two months' rigorous imprisonment in default to one week's rigorous imprisonment in default.
4. Applicants Nos. 1, 2 and 3 have been convicted of an offence under Section 4 of the Bombay Prevention of Gambling Act. The relevant terms of that section are:-
(a) being the owner or occupier or having the use of any house, room or place, opens, keeps or uses the earns for the purpose of a common gaming, house,
(b) being the owner or occupier of any such house, room or place knowingly or wilfully permits the same to he opened, occupied, kept or used by any other person for the purpose aforesaid,...
5. It is conceded by Mr. Thakor that the house in question is a family house belonging to a joint and undivided Hindu family which consists of applicant No. 1, the father, applicants Nos. 2 and 8 who are his sons and some other members of the joint family. It is contended by Mr. Thakor that applicant No. 1 does riot reside in this house but resides in a separate house with a woman, who is described by the Magistrate as his mistress, Mr. Thakor has also contended that the papers and books which were attached go to show only that a business in the name of a company or firm was being carried on, which business was in the nature of gambling but the papers and account books do not show that the business was that of applicant No. 1. He contends that as defendant No. 1 was not residing in the house no presumption can arise that the papers and account books which were attached from the house were in his possession. It is clear, in my opinion, that applicant No. 1 being the joint owner of the house which for purposes of this application must be regarded as a common gaming house was present there under circumstances which raise a legal presumption that he was gaming there. A further presumption arises against him therefore that the house was being used as a gaming house with his knowledge and permission. It is clear from the papers and books attached that the business which was being; carried on in this house was one of gaming. The books also show profit or gain to the persons who were doing the business in the name of a firm called a company. It was not shown by applicant No. 1 that he was separated in interest from his sons who were admittedly residing in this house. It has been found that although applicant No. 1 was residing in another house with his mistress, the female members of his family continued to reside in this family house. By residing with his mistress in a separate house the applicant, in my opinion, did not cease to be the occupier of the family house where the ladies of his family continued residing. His occupation of the house where his mistress was must be regarded as being in the nature of a temporary residence, the family house being there as his other residence. It is possible for a person to have more than one residence at a time. In any case, in my opinion, as applicant No. 1 was present when the gaming was presumed to be going on in his house, he could be properly convicted under this section for having knowingly permitted the house to be used as a gaming house. The convictions of applicants Nos. 1, 2 and 3 for an offence under Section 4 are correct and should he confirmed.
6. With regard to the sentences on applicants Nos. 1 and 2 the District Magistrate states in his letter of reference that applicants Nos. J. and 2 were out to capture the whole betting public of Broach as shown by Exs. 16 and 17 and had branches or bucket shops spread throughout the city as shown by Exs. 4, 10 and 14. The total bets for different dates appearing in these account books show that the gambling was carried on on a large scale. The sentence of Rs. 50 fine appears to us under these circumstances to be inadequate. We enhance the sentences of applicants Nos, 1 and 2 to Rs. 200 fine each, with three weeks' rigorous imprisonment in default in each case. The sentence of two months' rigorous imprisonment in default on applicant No. 3 will be altered to three weeks' rigorous imprisonment. Two weeks will be allowed for paying the enhanced fines.
7. I agree