(1) The second petitioner is the son of the first petitioner. Both the petitioners have been convicted under S. 4 of the Bombay Prevention of Gambling Act (which shall be hereinafter called 'the Act') and sentenced to pay a fine of Rs. 15/- each, in default to undergo S. I. for four days, by the learned Judicial Magistrate First, Class, Sirsi, in Criminal Case No. 1649 of 1957 on his file. They have come up in revision to this Court.
(2) Sri B. V. Krishnaswamy Rao, the learned Counsel appearing for the petitioners formulated a threefold attack against the judgment of the Court below. According to him, the search conducted in this case is illegal as the Searching Officer did not get himself searched before entering the premises to be searched and consequently the seizures made should not be taken into consideration. His second objection is that as there is no satisfactory evidence to show that the Sub Divisional Magistrate, Sirsi, who issued the warrant under S. 6 of 'the Act' has been satisfied that there are good grounds to suspect that the house, room or place to be searched is used as a common gaming house, the warrant is invalid. And lastly he contends that no presumption against his clients should have been drawn under S. 7 of 'the Act'.
(3) The facts necessary for deciding the points urged, briefly stated, are as follows:
The complainant in this case, the Sub-Inspector of Police, Sirsi, applied and obtained from the learned sub Divisional Magistrate, Sirsi, on 16-8-1957 a warrant under S. 6 of 'the Act'. In pursuance of that warrant, he searched the shop of the first petitioner on 21-8-1957 at about 7-30 p.m. In the course of the search, he found in that shop a bundle of 11 slips bearing certain numbers. Out of those 11 slips, 4 chits bore that date of 21-8-1957: one chit bore the name of one Hanmanth and another bore the same of one Gowdappa.
He also found a note book in a safe kept in that shop containing certain numbers. There were seven two rupee currency notes in that safe: 22 pop pictures which bore some dates and numbers; 3 odd exercises books below the safe, containing some numbers. These facts are proved by evidence of the complainant and his evidence is substantially corroborated by the panch witness Myragavya. The evidence of these two witnesses has been accepted by the trial Court and it appears to be creditworthy.
(4) The real question for decision is whether the accepted evidence is sufficient to bring home the offence with which the petitioners are charged.
(5) I am unable to attach much importance to the contention that the complainant did not get himself searched before conducting the search in the shop of the petitioners. There is no satisfactory evidence in support of this contention. It is true that the complainant has not spoken about getting himself searched prior to the commencement of the search. Nor has he been cross-examined on this point. Even supposing the complainant had failed, to get himself searched, it is merely an irregularity which by itself is not sufficient to vitiate the search.
(6) We now come to the question of the validity of the search warrant marked as Ex. 10. The relevant portion of the warrant is as follows:
'x x there is reason to suspect that Sri Narayan Subraya Kurdekar, owner of Sarof-shop M. 354 situated on the main road called Channappatan and that the said sarof shop is used by him as a common gaming house; and having satisfied my self after enquiry that there are good grounds for such suspicion--These are by virtue of the Bombay Prevention of Gambling Act, 1887 as amended uptodate to charge and authorise you to enter with the assistance of such persons as may be found necessary, by night or by day, and force, if necessary, the abovementioned place, and to take into custody all persons whom you may find therein, whether they are then actually gaming or not; and to seize all instruments of gaming and all moneys, and securities for money, and articles of value reasonably suspected have been used or intended to be used for the purpose of gaming, which are found therein. x x x'
The complainant has deposed that he was examined by the learned Magistrate before issuing Ex. 10 and that the Magistrate was satisfied that there were good grounds to suspect that the premises in question was used as a common gaming house. His evidence on this point has not been shaken in cross-examination. There is no reason why the same should not be accepted. It is not the law that a Magistrate who issues a warrant under S. 6 of 'the Act' should be examined to prove his satisfaction.
(7) It was next urged by Sri Krishnaswamy Rao that the premises M. 354 does not belong to his client and it is owned and possessed by one Kamakshi. According to the evidence of the complainant the first petitioner is running a shop in that building and this fact has not been denied by the first petitioner. It is immaterial who is the actual owner of the building. We are merely concerned with the shop M. 354. There is satisfactory evidence in this case to show that it is in the possession of the first petitioner. Hence the objections relating to the validity of the search warrant is unsustainable.
(8) Finally we come to the true scope of S. 7 of 'the Act'. Section 7 reads as follows:
'When any instrument of gaming has been seized to any house, room, or place entered under S. 6 or about the person of any one found therein, and in the case of any other thing so seized if the Court is satisfied that the police officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming' the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used by a common gaming house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the Magistrate, or the police officer or by any person against 'under the authority of either of them'.'
(Underlining (here into ' ' is mine).
In order to raise a presumption that the premises searched is a common gaming house, two things are necessary; (1) the search in question must have been conducted as per a warrant issued under S. 6; (2) some instruments of gaming must have been seized from the house, room or place searched; or the Court must be satisfied that the Police Officer who entered such a house, room or place had reasonable grounds for suspecting that the things seized were instruments of gaming. In this case, as found earlier, the search in question was conducted in pursuance of the warrant issued under S. 6.
It remains to be considered whether the 'things' seized are instruments of gaming or at lease whether the Court can be satisfied that the police officer who searched the premises had reasonable grounds to suspect that the thing seized by him are instruments of gaming. The instruments that have been seized are mainly chits and note books containing certain unintelligible numbers. The complainant thinks that they are numbers indicating the bets taken on the opening and closing prices of American Cotton, popularly known as Satta. But the evidence adduced on this point cannot be stated to be conclusive.
The complainant does not gain to have any special knowledge about gambling in Satta. Hence the instruments in question cannot be said to be instruments of gaming. Next we have to see whether the complainant had reasonable grounds for suspecting that the things so seized were instruments of gaming. On an examination of the chits and note books seized there are good grounds to doubt that the numbers found therein relate to Satta gambling. Hence the complainant could have had reasonable grounds to suspect that they were instruments of gaming.
He swears that he did suspect that they were instruments of gaming. I see no reason to doubt his evidence. But Sri Krishnaswamy Rao relying on the decision in Emperor v. Nathalal Vanmali, 41 Bom LR 548: (AIR 1939 Bom 339) contends that such an inference should not be drawn. He wants us to construe S. 7 very strictly. If so construed, he says, that unless the instruments seized are proved satisfactorily, to be instruments of gaming, no presumption under S. 7 could arise. In Nathalal Vanmali's case 41 Bom LR 548: (AIR 1939 Bom 339) the High Court observed:
'The presumption under S. 7 of the Bombay Prevention of Gambling Act, 1887, that the house, room or place raided under S. 6 of the Act is a common gaming-house, rests on two events. The first event is when any instrument of gaming has been seized in the house, room or place entered under S. 6 or about the person of any one found therein. There is no particular difficulty in determining when that event occurs.
All that the Court has to do is to see whether the documents and things found in the house raided fall within the definition of 'instruments of gaming'. If they do, then the presumption arises. The other event requires for its occurrence two things to be proved, first, that something has been seized, which is other than an instrument of gaming and secondly, that the police-officer had reasonable grounds for suspecting that the thing so seized was an instrument of gaming. When these two things are proved, the Court must presume that the house, which has been entered was used as a common gaming house until the contrary is proved.
Where, however, the only evidence of the house being used as a common gaming house lies in the seizure in the house of something which is in fact not an instrument of gaming, although the police-officer had reasonable grounds for suspecting that it was an instrument of gaming, then there is no evidence of such user and the presumption is rebutted. The presumption arising in the second event must always be still-born, because it is rebutted by the proof of the very event which gives it birth, namely, seizure of something other than an instrument of gaming. The second event can only arise when it is proved that the thing which was found in the house raided was not an instrument of gaming, and directly that is proved the evidential value of the thing found is destroyed.
'In construing a section of a penal Act, which cats upon the accused the burden of proving his innocence, the Court must act strictly.'
The learned Judge though that the things seized must necessarily come under one of the two heads i.e. instrument of gaming or those that are not instruments of gaming. They did not take into consideration of third possibility, a thing which may or may not be an instrument of gaming. In other words a thing which is doubtful whether it is an instrument of gaming or not. This aspect of the case was considered by a later decision of the Bombay High Court in Emperor v. Hormazdyar Ardeshhir Irani 50 Bom LR 163: (AIR 1948 Bom 250). Their Lordships held that the second part of S. 7, of the Act was intended to apply to such things as may appear to be or may reasonably suspected to be instruments of gaming though they cannot be proved to be such instruments.
According to their Lordships in a case where resort is had to S. 7 it is possible to bring conviction home to the accused on the provisions of S. 7 that is on positive evidence alone; (2) by relying on the first part of S. 7 that is when an instrument of gaming has been seized in any house, room or place entered under S. 6 or about the person of any one found therein, the seizure of such instruments being evidence, until the contrary is proved, that the house, room or place is used as a common gaming house and that the person found therein were then present for the purpose of gaming; and (3) by acting under the second part of S. 7 that is, where the Court is satisfied that the police officer who conducted the search had reasonable grounds for suspecting that the thing seized on the search was an instrument of gaming the accused being at liberty to prove of gaming the accused being at liberty to prove the contrary. Their Lordships further observed:
'The rule that penal statutes must be construed strictly has lost much of its force and importance in recent times. The paramount duty of the judicial interpreter is to put upon the language of the legislature honestly and faithfully its plain and national meaning and to promote its object.'
With respect I agree with the above decision. In the instant case, the instruments seized decision. In the instant case, the instruments seized appear to be instruments of gaming but one cannot be definite about it. Hence the case falls under the second part of S. 7.
(9) The last question that has to be decided is whether both these petitioners are liable to be convicted. There is no doubt that the first petitioner was the owner of the shop. The warrant issued says that he is in possession of the premises to be searched. Hence his conviction cannot be challenged. The second petitioner is the son of the first petitioner. It is not shown that he is running the ship in question. The warrant issued does not mention his name. On the facts proved his conviction cannot be justified.
(10) In the result, the revision petition, in so far as it relates to the conviction of the first petitioner is dismissed. But it is allowed to the extent it relates to the conviction of the second petitioner. His conviction is set aside and the fine if paid will be refunded to him.
(11) Revision partly allowed.