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State Vs. Abdulgafar Abdulrehman and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 317 of 1955
Judge
Reported inAIR1956Bom420; 1956CriLJ722
ActsBombay Prevention of Gambling Act, 1887 - Sections 4, 5, 6 and 7; Code of Criminal Procedure (CrPC) , 1898 - Sections 439; Evidence Act, 1972 - Sections 114
AppellantState
RespondentAbdulgafar Abdulrehman and ors.
Appellant AdvocateA.A. Mandgi, Asst. Govt. Pleader
Respondent AdvocateK.M. Zaveri, ;K.H. Naji, ;D.K. Shah and ;B.G. Thakor, Advs.
Excerpt:
.....that the house, room or place in question is used as a common gaming-house. usually the magistrate concerned receives a complaint from a police officer, then he proceeds to make such enquiry as he may deem necessary, and it is only when and after he is satisfied that the premises in question are used as a common gaming-house that he proceeds to issue a warrant. that is why we are satisfied that the learned magistrate wholly misdirected himself in law in going elaborately into the question as to whether the authority issuing a warrant was justified in issuing the warrant in this case or not. he was not satisfied with the evidence given by the panch. and if the learned magistrate was disposed to take the view that in the circumstances of this case the explanation given by the..........which is allowed to be rais-ed statutorily under section 7 of bombay act 4 of 1887. the learned magistrate has taken the view that, though a warrant had been issued under section 6 of the act, the presumption under section 7 cannot, and should not, be drawn because in effect he held that a warrant should not have been issued under section 6 and it is this approach which is challenged before us by the state in the present appeal.2. the facts leading to the prosecution are very few. mr. shaikh, the police inspector of crime branch, ahmedabad, received information on 14-7-1954 that respondent 1 was running a common gaming house at miya's wadi for his benefit. on the next day he verified the matter personally, and having satisfied himself that the in., formation was true, he.....
Judgment:

Gajendragadkar, J.

1. This is an appeal by the State against the order of acquittal passed by the learned Judicial Magistrate, first Class, 9th Court, Ahmedabad, acquitting the respondents of the offence under Sections 4 and 5, Bombay Prevention of Gambling Act.

On behalf of the State we have been told that the State is not anxious to secure the conviction of the respondents as much as to get the point of law decided; and, according to the appellant, the point of law is of some importance because the view taken by the learned trial Magistrate as to the effect of the provisions of Sections 6 and 7, Prevention of Gambling Act is wholly erroneous and indeed is not supported by any decisions of this Court.

The point, in substance, is in regard to the artificial presumption which is allowed to be rais-ed statutorily under Section 7 of Bombay Act 4 of 1887. The learned Magistrate has taken the view that, though a warrant had been issued under Section 6 of the Act, the presumption under Section 7 cannot, and should not, be drawn because in effect he held that a warrant should not have been issued under Section 6 and it is this approach which is challenged before us by the State in the present appeal.

2. The facts leading to the prosecution are very few. Mr. Shaikh, the Police Inspector of Crime Branch, Ahmedabad, received information on 14-7-1954 that respondent 1 was running a common gaming house at Miya's Wadi for his benefit. On the next day he verified the matter personally, and having satisfied himself that the in., formation was true, he obtained a search warrant under Section 6 of the Act from the S. D. P. O. Special.

The warrant was issued after the authority approached in that behalf had received the complaint on oath from Mr. Shaikh and was satisfied on making additional suitable inquiry that the facts alleged in Mr. Shaikh's complaint appeared to be true. After the warrant was issued, Mr. Shaikh went to the place along with the panchas and effected a raid. At the raid the respondents and others were arrested. Rs. 41-8-0 were actually found at stake.

In front of accused No. 1 there was one cigarette packet wherein Rs. 45-12-3 were found. This, according to the prosecution, was the Nal money drawn by accused 1 as his profits. All the respondents were individually starched and different amounts were found with them. Cards were also found in the hands of accused 1. A panchanama was made and a charge-sneet was submitted under Section 4 against accused 1 and under Sec-lion 5 against the other accused persons.

3. The learned Magistrate appears to have thought that the cross-examination of Inspector Shaikh showed that he had no personal knowledge in this matter and he held that since Shaikh himself had no personal knowledge in the matter and since presumably the other evidence adduced before the authority issuing a warrant under Section 6 was not, in the opinion of the learned Magistrate, sufficient or satisfactory, the warrant itself was improperly Issued; and it is on this view of the matter that he substantially refused to draw the statutory presumption under Section 7.

The learned Magistrate, in coming to this conclusion, has made certain general and vague observations in his judgment which should have been avoided. He should have addressed himself to the very narrow question which he had to consider, and if the learned Magistrate had examined Section 6 carefully and had attempted to derive assistance from reported judicial decisions on this point, he might have easily escaped falling into the error which has effected his Judgment. It is because the learned Magistrate is likely to try several cases of this kind under this Act that the State thought it necessary to prefer an appeal in order that the view taken by the learned Magistrate should be corrected.

4. The Bombay Prevention of Gambling Act has been on the statute book for several years and Sections 6 and 7 of the Act have been Judicially considered by this Court on several occasions in reported judgments. It is periectly true that Section 7 raises an artificial presumption, and since an artificial presumption is allowed to be raised generally, the presumption is not regarded as a very strong presumption. The presumption, however, must be raised as soon as the requirements laid down by Section 6 are satisfied.

The proviso to Section 6 makes it clear that it is for the Magistrate empowered to Issue a warrant to be satisfied that there are grounds to suspect that the house, room or place in question is used as a common gaming-house. Usually the Magistrate concerned receives a complaint from a Police Officer, then he proceeds to make such enquiry as he may deem necessary, and it is only when and after he is satisfied that the premises in question are used as a common gaming-house that he proceeds to issue a warrant.

If the warrant is thus issued, it would ordinarily not be open to the Criminal Court to sit in judgment over the issue of the warrant Itself and to enquire whether the authority was justified in issuing the warrant. The satisfaction which is a condition precedent for the issuing of the warrant is the satisfaction of the Issuing authority, not of the criminal Court. That is why we are satisfied that the learned Magistrate wholly misdirected himself in law in going elaborately into the question as to whether the authority issuing a warrant was Justified in issuing the warrant in this case or not.

The learned Magistrate should have realised that the evidence on which he was basing his conclusion could more appropriately have been pressed into service for the purpose of rebutting the presumption which had to be raised under Section 7. We do not propose to hold that, as soon as a document purporting to be a warrant is produced before a criminal Court, the criminal Court is bound to draw the presumption under Section 7 of the Act. If the Jurisdiction of the authority purporting to issue the warrant is challenged, that challenge must be considered by the criminal Court. If the warrant is otherwise alleged to be Invalid, that allegation also must be examined by the Court.

In -- 'Ibrahim v. Emperor' AIR 1933 Bom 79 (A), this Court held that the warrant to be invalid for the reason that it did not show that it had complied with the condition precedent prescribed by Section 6 and that it described the premises materially inaccurately.

Objections of this kind can be taken by the accused and must be examined by the criminal Court when they are so taken. But that is not to say that the scope of the enquiry in a prosecution under the provisions of the Prevention of Gambling Act is so .wide that the Criminal Court can hold a preliminary enquiry into the propriety or validity of the action or the authority authorised to issue a warrant under Section 6, and that is the jurisdiction which the learned Magistrate has purported to assume in trying the present case.

In our opinion, the learned Magistrate is entirely in error in assuming this jurisdiction. There-fore, we must considered that the warrant has been properly issued and proceed to raise tne presump-tion under Section 7.

5. The learned Assistant Government Pleader has fairly conceded that, on the evidence as it stands, it would be difficult to prees the charge under Section 4 against accused 1. In regard to the remaining accused, Mr. Zaveri has argued--and, we think, rightly -- that the evidence as it stands is enough to rebut the presumption which may be raised against his clients in respect of the offence under Section 5.

Though the judgment of the learned Magistrate has been unnecessarily burdened with too many generalities and vague observations, it is not difficult to find that his conclusion was on the narrow question of fact. He was not satisfied with the evidence given by the panch. He was not prepared to hold that a large group of per-sons could have sat in a circle and indulged in gambling in the manner suggested by the prosecution.

In effect, he was disposed to accept the story of the respondents that they had assembled at the place for the purpose of a picnic party; and if the learned Magistrate was disposed to take the view that in the circumstances of this case the explanation given by the respondents was satisfactory and rebutted the presumption, we would not like to interfere with that conclusion of the learned Magistrate.

Besides, the order of acquittal was passed in favour of the respondents in November 1954, and there is nothing in this case which would justify our entertaining the argument that, if the evidence is carefully examined, it would not lead to the inference that the presumption is rebutted. Whether or not the statutory presumption is rebutted in a given case under the Gambling Act would be a question of fact, and in an appeal against an order of acquittal this Court would be slow to Interfere on such a simple question of fact.

Besides, as I have already mentioned, ths State preferred this appeal more for the purpose of getting the position under Sections 6 and 7 clarified than for securing the conviction of the respondents.

6. In the result, the appeal succeeds on a point of law, but as to the order of acquittal we refuse to interfere with the order passed.

7. Order accordingly.


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