1. All the petitioners in this case have been convicted of an offence under Section 63 (4), Mysore Police Act, and sentenced to pay a fine of Rs. 100/- each, and in default to undergo simple imprisonment for one month. A-10 has, in addition, been convicted of an offence under Section 63(3) of the Mysore Police Act and sentenced to pay a similar amount of fine.
2. The prosecution case is that the Police Inspector PW 1 got a search warrant, Ext. P-1, issued by the Assistant Superintendent of Police, Channapatna, as he had for some times past come to know that the house of A-10 was being used as a common gaming house. On the house being raided at 11-30 on the night of 15-6-1951, it was found that both the front and hind doors were bolted from inside, and the shuffling of the cards and the conversation showing that a game of chance was being played were heard. On entering the house it was found that the game was actually going on as some of the playing cards were in front of the players, a few with face downwards, and others thrown nearby. A sum of more than Rs. 600/-was actually found in what is known as the 'Akhada', which means the place where money is placed as stake. The only witnesses examined in the case are the Police Inspector and the Sub-Inspector, and the other mahazar witnesses are not examined.
3. There is hardly any doubt that it is open to the Court to reject the prosecution evidence in cases where mahazar witnesses are not examined. But, in this case, apart from the presumptions which arise and would be considered later, there is hardly any doubt that the prosecution version as stated by P. Ws. 1 & 2 is true. Even the version of the accused is that there was a raid, that some of them were playing cards and that the money seized was actually seized there. They would, however, have the Court believe that they had met there for purposes of a chit fund transaction and that since one of the members of the chit fund had not still come, some of them were playing cards. That way, the only difference between the two versions is that, while according to the prosecution case, they were engaged in playing a game of chance, according to the accused, it was only a game of skill they were playing. Whether what was going on was a game of chance or a game of skill depends not much on the evidence of the witnesses themselves but ,on the circumstances of the case which are not denied.
A large number of persons from different localities had met late at night in a house which evidently had the reputation of being used as a common gaming house, as is clear by the fact that the Police had obtained a search warrant. What was taking place in the house was being conducted with both the main and back doors of the house bolted from inside and a large sum of money was on the 'Akhada'. What is the natural presumption that arises in cases of this kind, whether the search warrant obtained by the Police was one that is in accordance with the law or not? The only answer that can be given in circumstances such as those of this case is that it must be presumed from the above facts that the accused were engaged in something which was shady and considering that they were playing cards with a good deal of money, the natural inference would be that they were playing a game of chance.
4. It has to be stated that a presumption also arises in cases of this kind under Section63 of the Mysore Police Act. Explanations 1 and 3 thereunder run as follows : Explanation 1 :
'Any cards, dice, gaming table or cloth, board or other instruments of gaining found in any building, enclosure, room, place or vehicle entered or searched, under the provisions of Section 38 or on any person found therein shall be evidence that the building, enclosure, room, place or vehicle is used as a common gaming-house, and that the persons found therein were there present for the purpose of gaming although no play was actually witnessed by a Police Officer or others.'
Explanation 3 :
'Any person found in any common gaminghouse, during any gaming or playing therein, shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.'
Explanation 1 shows that if any house is entered or searched under the provisions of Section 38 and cards or other instruments of gaming are found in it, they shall be evidence that the building is used as a common gaming house and that the persons found there, were present for the purpose of gaming. It is stated in 2 Mys. C. C. R. 175 so far back as 1897, there being no decision to the contrary, that;
'When cards, dice &c.;, are found in any house entered or searched under Section 5 of the Gaming Act, it is evidence until the contrary is made to appear, that the house is used as a common gaming house and that persons found therein are present for the purpose of gambling.'
It must, however, be remembered that this is not a case in which the warrant under which, the house is entered or searched, is defective for one reason or the other, though as is clear from the decision in -- 'Sannappa v. Court of Mysore', 10 Mys. LJ 99 ;
'..... Where a warrant issued under section 38 of the Mysore Police Regulation is defective; the presumptions which the explanations to section 63 give rise to, do not arise and in that case in a prosecution for an offence under Section 63, the prosecution has to prove that there was gaming in a place which was a common gaming house within the meaning of section 63 Clause (2) of Mysore. Police Regulation ......'
5. It is contended that in this case the war-rant has been signed not by a First Class Magistrate or a District Superintendent of Police but by an Assistant Superintendent of Police. But, it will be noted that according to the definition of Section 4 of the Mysore Police Act, 'District Superintendent' includes any Assistant Superintendent or other person appointed by general or special order of the Government to perform all or any of the duties of a District Superintendent of Police under the Act in any District or part of a District. It is contended that the person referred to in the latter part of Clause (b) of Section 4 as one 'appointed by general or special order of the Government to perform all or any of the duties of a District Superintendent of Police, does not refer to 'Assistant Superintendents of Police' but 1o other persons. It might have been possible to interpret the Section that way if there was a 'comma' after the words 'Assistant Superintendent' in that clause. Considering the wording of the Section, as it stands, it is clear that whether it is an Assistant Superintendent of Police or any other person, he cannot be deemed to be a District Superintendent ofPolice for the purpose of the Mysore Police Act unless he is appointed by a general or special order of Government to perform all or any of the duties of a District Superintendent of Police under the Act in any District or part of a District. It has, however, to be observed that Rule 60 of the Mysore Police Manual makes it clear that the duties of the Assistant Superintendent in charge of a Sub-division are, within the sub-division, the same as those of the Superintendent. It is thus clear that even though the search warrant was signed by an Assistant Superintendent of Police, it must be deemed that he is a District Superintendent of Police for the purpose of Sections 38 and 63 of the Mysore Police Act.
6. In this case, apart from the natural presumptions that arise, considering the circumstances already stated, presumptions under Explanations to Section 63 arise. Cards were found in the house entered into under the provisions of Section 33 and this must he taken as evidence, until the contrary is proved, that the house was used as a common gaming house and the persons found therein were present for the purpose of gambling as stated in -- '2 Mys CCR 175', and it may be added that no satisfactory evidence has been adduced in this case to show the contrary. Explanation 3 to Section 63 already cited makes it clear that
'Any person found in any common gaming-house, during any gaming or playing therein, shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.'
It was contended that the presumption under this section does not arise until it was proved that the persons were playing a game of chance. The point that has to be noticed is that while in the earlier portion of the Explanation (3) both the words 'gaming' and 'playing' are used, only the word 'gaming' is used at the end. This makes it clear that a distinction is intended to be made between 'gaming' and 'playing'. The former refers to the case of a person found during any gaming or playing. Gaming is clearly meant to connote a 'game of chance', while 'playing' is used in a general sense. It is admitted by the accused that they were engaged in playing and the very fact that cards were found indicates that the play was going on. A largo sum of money has been discovered on the 'Akhada' indicating that it was used as stake money. At a late hour in the night the accused were playing with all the doors closed and bolted from inside. All this points to the conclusion that what was going on was 'gaming' punishable under the Mysore Police Act. Even if, as admitted, the accused were found in the gaming house during playing, the presumption is, until the contrary is proved, that they were there for the purpose of gaming.
7. Considering all the circumstances of the case, there is more than sufficient material justifying the convictions of all the accused of the offences of which they stand convicted. The sentences are very light. This revision petition stands therefore dismissed.
8. Revision dismissed.