1. In this case several accused have been convicted under Sections 4 and 5 of the Bombay Prevention of Gambling Act, IV of 1887. In the course of the search under the Act not only were certain articles, including cash, found in the house attached, but also certain cash, ornaments and currency notes on the persons of the several accused were attached. The trial Magistrate has found on the evidence that the cash, ornaments and other articles, except those mentioned in his judgment, had been either used in gaming or intended to be used, and he has ordered them to be forfeited to Government under Section 8 of the Act.
2. It is clear from the provisions of Section 8 and the decision in the case of Emperor v. Walli Mussaji 26 B. 641 : 4 Bom. L.R. 427 that the power of forfeiture extends only to securities for money and other articles seized in the house which are not instruments of gaming. It is clear from the first paragraph of the section that the convicting Magistrate may order all instruments of gaming found in the house or on the persons of those who were found in the house to be forth with destroyed, and it is clear from the second paragraph that the power of forfeiture really is confined to those articles which are not instruments of gaming and which have been seized in the house. The power of forfeiture does not extend to articles found on the persons of the accused which are not instruments of gaming. The order of the Magistrate as to forfeiture seems to me to be inconsistent with his finding as to the cash, and ornaments being instruments of gaming. It seems to follow from the terms of Section 8 that the cash, currency notes and ornaments found on the persons of the accused cannot be treated as instruments of gaming for the purpose of that section, even though they may have been used or may be intended to be used for the purposes of gaming. The cash, currency notes and ornaments found on the persons of the accused cannot be ordered to be forfeited to Government, but ought to be returned to the respective persons from whom they were taken.
3. The petitioners before us are accused Nos. 3, 5, 6, 7, 8 and 15. But as the case is brought to our notice on this petition, we make the order which would apply to all the accused, on whose persons cash, currency notes and ornaments were found, even though some of them may not have applied to this Court.
4. The order of forfeiture made by the Magistrate is set aside and the cash, currency notes and ornaments found on the persons of the accused as noted in the Panchnama to which the order of forfeiture relates are ordered to be returned to the respective persons from whom they were taken.