H. Hombe Gowda, C.J.
1. This revision petition is directed against the order passed by the Munsiff-Magistrate, Yadgir in Criminal Case No. 4.3.1963 convicting the nine petitioners under Section 5 of the Hyderabad Gambling Act and sentencing each of them to pay a fine of Rs. 50/- and in default of the payment of fine to suffer S.I. for two weeks.
2. The nine petitioners and another person by name Nazimul Saquib (A. 10) were prosecuted by the Sub-Inspector of Police of yadgir for offences punishable under Sections 4 and 5 of the Hyderabad Gambling Act.
The charge against the petitioners is that they were found playing a game of cards with money for stakes in a common gambling house bearing No. 1, 2, 92 situated Station area in Yadgir town at about 10 P.M. on 9.7.1962. The charge against A. 10 Nazimul Saquib was that he was the occupier of the premises which was used as a common gambling house and had knowingly allowed the petitioners to indulge in gambling in the said house. All the accused denied the charges framed against them. The prosecution examined lour witnesses to prove the charges against the accused persons. One witness was examined for the defence.
After assessing the evidence placed on record by the prosecution the learned Magistrate held that the prosecution had failed to establish that A. 10 Nazimul Saquib was the occupier of the premises bearing No. 1.2.92 situated in Station area of Vadgir in which the other accused persons were indulging in gambling and/or that lie had knowingly allowed the other accused persons to engage themselves in gambling in the said premises. He accordingly acquitted him of the charge. But the learned Magistrate held that the present petitioners (accused 1 to 9) were guilty of an offence punishable under Section 5 of the Hyderabad Gambling Act and convicted and sentenced them as above stated. The learned Magistrate rejected the contention put forward by the petitioners that the evidence on record did not satisfactorily establish the fact that the petitioners were in fact playing a game of chance and as such are liable to answer a charge punishable under Section 5 of the Hyderabad Gambling Act.
The learned Magistrate also rejected the contention that the search warrant Exhibit P, 3 on the authority of which the Sub-Inspector of Police raided the house in which some of the petitioners were playing cards was invalid and that therefore no presumption under Section 7 of the Hyderabad Gambling Act could be raised on the mere fact that a pack of cards and some money were found in the premises when the same was searched on the night of 9.7.1962, Being dissatisfied with the convictions and sentences passed against them, the petitioners have filed this revision petition.
3. Mr. Malimath, the learned Counsel for (the petitioners, has challenged the correctness and legality of the convictions of the petitioners under Section 5 of the Hyderabad Gambling Act. He urged two contentions. Firstly, the material placed on record is not inconsistent with the case of the petitioners that some of them were playing a game of skill and were not gambling. He urged that there is sufficient material in the evidence placed on record by the prosecution itself to prove that the petitioners were not playing any game of chance with money as stakes and that some of them were engaged in playing a game of skill as a pastime and there-tore, they are not guilty of an offence punishable under Section 5 of the Hyderabad Gambling Act. He further contended that the mere fact that a pack of cards and some money were found in the house when the same was searched at about 9-30 p.m. does not necessarily lead to the irresistible conclusion that either the petitioners that were actually playing cards or others that were present in the place were indulging in gambling in the said house.
Secondly, it was urged that the finding of the learned Magistrate that the search warrant Exhibit P. 3 is valid is clearly erroneous. He strenuously urged that Exhibit P. 3 which did not bear the seal of the Court and which is the authority for the Sub-Inspector of Police to invade the house of the 10th accused Nazimul Saquib was invalid in law and that any recovery effected during the illegal search, even if they are instruments of gambling, dos not enable the prosecution to rely upon the presumption under Section 7 of the Hyderabad Gambling Act. According to the contention of Mr. Malimath even assuming that the articles that were seized during the search were instruments used for gambling, the prosecution is not entitled to ask the court to draw presumption under Section 7 of the Hyderabad Gambling Act and therefore, the conviction of the petitioners is illegal and is liable to be set aside.
4. I will now proceed to consider these contentions in the order in which they were presented before me by the learned Counsel for the petitioners.
5. Out of the four witnesses examined by the prosecution, P.W. 2 Sharanappa, who was one of the panchayatdars, did not support the case of the prosecution and was treated as hostile. P.W. 4 Pandurang Rao is the Sub-Inspector of Police who raided the house on the authority of Exhibit P. 3, the search warrant issued to him by the Magistrate on 9.7.1962. He stated in his evidence that armed with Exhibit P. 3 he proceeded to the house bearing No. 1.2.92 situated in Station area of Yadgir at about 9 p.m. on 9.7.1962 along with two panchayatdars and asked one of the panchayatdars to peep through the window which had been kept open and to observe what was happening inside and that he and the panchayatdars observed through the window four persons sitting playing cards on the ground inside the house. Thereafter he (the Sub-Inspector of Police) directed one of the panchayatdars to call out the persons to open the door.
On being so requested by one of the panchayatdars, called out one of the persons who was playing cards inside the home and he came to the door and opened it. The Sub-Inspector of Police and the panchayatdars entered into the house and found petitioners 1 to 4 playing cards with stakes while the other five accused persons were squatting on the ground at the place. The Sub-Inspector of Police thereafter seized the articles found at the place which included 104 playing cards, an amount of Rs 46.6 P. and a white bed sheet which had been spread for the purpose of playing cards. Exhibit P. 1 is the panchanama drawn at the place. P.W. 1 Allah Bux one of the panch witnesses has fully corroborated the evidence of the Sub-Inspector of Police. As already stated, P.W. 2 Sharanappa turned hostile and did not support the case of the prosecution, and he was cross-examined by the Prosecuting Sub-Inspector.
P.W. 3 T. Mohan Krishna who is the Deputy Superintendent, Central Excise is the other witness examined in the case. He stated in his evidence that he was in search for a vacant house for his residence at Yadgir; that he learnt that a house belonging to the Taluka Board President was vacant, and secured the key through the assistance of his Sub-Inspector; that he handed over the key of the house to his Sub-Inspector when he proceeded on tour; that on his return from tour he asked his Sub-Inspector for the key who informed him that he handed over the key to the servant of the Taluka Board President, He has further stated that a portion of the house bearing No. 1.2.92 had been leased to some one and the other portion was vacant and that he learnt that A. 10 Nazimul Saquib had taken a portion of the house and that he occupied the house which is adjacent to the said house and has been living there with the members of his family. He has further stated that he found in the house which had been taken on lease by A. 10 Nazimul Saquib no male members were residing that whenever he passed before the said house to go to his house observed people playing cards in the house with doors kept open; that he does not know whether they were playing cards for money. Except stating that he found some persons whose identity he is unable to give were playing cards openly, he does not state that gambling was going on in the said house. The evidence of P.W. 3 T. Mohan Krishna clearly supports the contention put forward by Mr. Malimath that petitioners 1 to 4 were playing cards as a pastime and that they were not indulging in gambling. P.W. 3 T, Mohan Krishna specifically stated that he observed some persons playing cards in the said house with doors being invariably kept open. If really, the accused persons were indulging in gambling it is difficult to believe that they would keep the doors of the house open.
The evidence of P.W. 1 Allah Bux and P.W. 4 Panduranga Rao P.S.I. to the effect that the window had been kept open and they were able to peep through the window when they went to the place on 9.7.1962 lends support the contention that the petitioners 1 to 4 were probably engaged in playing a game of skill and not a game of chance so as to make them liable to answer a charge punishable under Section 5 of the Hyderabad Gambling Act. The fact that one of the persons who was engaged in playing cards got up and opened the door of the house on being called out by one of the panchayatdars to do so also indicates that petitioners 1 to 4 were not indulging in gambling. The Sub-Inspector of Police and the panchayatdar have stated in their evidence that when they went to the place none of the persons attempted to run away from the place. This conduct on the part of the petitioners clearly supports the contention of Mr. Malimath that some of the petitioners were engaged in playing a game of skill as a pastime and that they were not indulging in gambling.
In my opinion the convictions of the petitioners cannot be supported on the materials placed on record and the petition should, therefore, be allowed and the convictions of the petitioners set aside.
6. The above finding is sufficient to dispose-of this revision petition but an important question of law relating to the validity of Exhibit P. 3, the search warrant issued by the Magistrate, on the authority of which P.W. 4 Pandurang, Rao, the Sub-Inspector of Police, Yadgir, raided the house in which the accused were round and seized some articles which according to the version of the prosecution are instruments of gaming: has been raised and argued at length and hence-in fairness to the learned Counsel I should deal with the question. I feel that I should also do-so in view of the fact that there is no decision of this Court as to the consequence or effect of a search conducted on the authority of a search, warrant issued by a Magistrate or any other authority which does not bear the seal of the* court or authority.
It is urged by Mr. Malimath, learned Counsel for the petitioners that Exhibit P. 3, the-search warrant which is purported to have been issued by the Magistrate and is signed by him is invalid as no seal of the court is affixed to the same. He contended that there is absolutely no material other than the interested version of P.W. 4 Pandurang Rao, Sub-Inspector of Police, to establish the fact that the Magistrate issued' Exhibit P. 3 on being satisfied that gambling, was going on in the premises in question and-that it was therefore necessary for him to authorize P.W. 4 Pandurang Rao Sub-Inspector o Police to search the said house. It is undisputed that Exhibit P. 3 is not written in the prescribed form. It is stated by P.W. 4 Pandurang. Rao the Sub-Inspector of Police that when he approached the Magistrate and laid information? before him to the effect that gambling was going, on in the house bearing No. 1, 2, 92 situated in Station Area of Yadgir and that it was necessary that he should issue a search warrant to enable him to search the same and seize the articles, the learned Magistrate being satisfied with his statement wrote out Exhibit P. 3 on a. sheet of paper empowering him to search the house and signed and delivered the same to him.
It is undisputed that Exhibit P. 3 does not contain the seal of the court. Except the statement of P.W. 4 Pandurang Rao, Sub-Inspector of Police that it was signed by the Magistrate in his presence there is no other material placed on record to support the same. But I am prepared to proceed on the basis that the Magistrate wrote out Exhibit P. 3 in his own handwriting and signed the same in his presence. But the question is whether Exhibit P. 3 which does not bear the seal of the court is valid.
It is an elementary principle of law that great care should be taken by a Magistrate or other authority who authorises any person to invade into a premises belonging to another person by issuing a warrant as oftentimes serious results are likely to result from such a search. A Magistrate who issues a warrant to any Police Officer or other person empowering him to search a premises belonging to another is acting as a 'Court'. Hence it is necessary that he should apply his judicial mind to the question whether there are sufficient grounds before him for the issue of the warrant and should not on a bare statement of a Police Officer that a search is necessary issue it. There is absolutely nothing on record to indicate that the learned Magistrate satisfied himself before he issued Exhibit P. 3 to P.W. 4 Panduranga Rao at his request. But almost all the High Courts in India have taken the view that a warrant issued by a Magistrate under the provisions of the Gambling Act empowering the Police Officer to search a house is prima facie evidence of the fact that he was satisfied with the need or necessity of issuing such a warrant and that we should presume that it is only after satisfying himself about it that he has issued the same. But in the instant case Exhibit P. 3 the search warrant purported to have been issued by the Magistrate to P.W. 4 Panduranga Rao does not bear the seal of the court. The question, therefore, for consideration is whether the warrant Ex. P. 3 issued by the Magistrate is valid in law and whether on the basis of the recovery or seizure of articles effected in the course of the search on the authority of the said warrant the prosecution can ask the court to raise a presumption under Section 7 of the Hyderabad Gambling Act.
The contention urged on behalf of the petitioners that Exhibit P. 3 is invalid as the same does not bear the seal of the court was rejected by the learned Magistrate as untenable with these observations:
It is no doubt true that the search warrant Exhibit P. 3 does not bear the seal of the court. Each case will be decided on the facts and circumstances appearing in the particular case. In this case it is to be seen that the search warrant was taken by P.W. 4 the P.S.I. at about 8 or 8-30 p.m. from Magistrate as is clear from the deposition of the witness. This fact will go to show that the Magistrate was not in the court. Exhibit P. 3 the search warrant is in the handwriting of the Magistrate. The endorsement of the learned Magistrate in the warrant reads 'Given under my hand this day of 9th July 1962' below which there is the signature of the learned Magistrate. This shows that the learned Magistrate was quite aware of the fact that there was no seal to be affixed to the search warrant at that time. Otherwise in the ordinary course the learned Magistrate would have mentioned given under my hand and the seal of the court. The absence of the words 'seal of the court' in the search warrant Exhibit P. 3 which is in the handwriting of the Magistrate will go to show that he was not in the court when he issued the search warrant. Hence the contention that the warrant Exhibit P. 3 is not valid because it does not bear the seal of the court has no force.
The learned Magistrate was of the opinion that the several authorities cited by the learned Counsel for the petitioners on the point were not applicable to the facts of the case. The learned Counsel for the petitioners has urged before me that the view of the learned Magistrate that as the Magistrate who issued the search warrant was not in court at the time he issued Exhibit P. 3 authorizing P.W. 4. Pandurang Rao to search the house in question he could not affix the seal of the Court and that the omission to do so is a curable irregularity clearly erroneous. He further contended that the view of the learned Magistrate that the provisions of the Code of Criminal Procedure are not applicable to a search warrant issued under the Hyderabad Gambling Act and therefore, omission to affix the seal of the Court does not render Exhibit P. 3 invalid is equally erroneous.
In support of his contention that in the absence of specific provision in the Gambling Act prescribing a particular mode or method in which a search warrant is to be prepared the provisions of Section 79 of the Code of Criminal Procedure are applicable and that a search warrant should be prepared as per the said provision Mr. Malimath relied upon the decision of the Allahabad High Court in Hannu v. The State (S) : AIR1955All231 . A contention similar to the one advanced by the respondent to the effect that when there is no provision prescribing the mode in which a search warrant should be prepared and issued in the Gambling Act, the courts have no justification to refer to the provisions of the Code of Criminal Procedure and such provisions in the Code of Criminal Procedure are not applicable to proceedings under the Gambling Act was rejected by the Court observing thus;
There is no doubt that where there are specific provisions in the Gambling Act which are inconsistent with the provisions of the Criminal P.C. then provisions of the Gambling Act have got to be followed but where there is no inconsistency between the two provisions or where the Gambling Act is silent the provisions of the Code of Criminal Procedure will be applicable to the proceedings under the Gambling Act.
It is undisputed that there is no specific provision prescribing a form or the method or manner in which a search warrant should be ore-pared and issued under the Hyderabad Gambling Act. Therefore, inevitably we have to apply the provisions of the Code of Criminal Procedure relating to the issue of search warrant. Sections 79, 96 and 103 of the Code of Criminal Procedure prescribed the method and manner in which summons and search warrants are to be issued and executed. Form No. VIII in Schedule V to the Code of Criminal Procedure is the form prescribed for the issue of warrant to search after information of a particular offence. In the absence of any provision in the Hyderabad Gambling Act prescribing any particular form for the issue of a warrant to search any premises it is this form that should be followed and issued by the Magistrate concerned. As a matter of fact Exhibit P. 3 which is written in the hand writing of the Learned Magistrate is in this prescribed form though it is not in a printed form.
As a matter of fact Mr. N.G. Mahajan, High Court Government Pleader, fairly conceded that Form No. VIII in Schedule V attached to the Code of Criminal Procedure is the form prescribed for the issue of search warrants empowering a Police Officer to search any premises under the Gambling Act. The last clause in Form No. VIII reads as follows:
Given under my hand and the seal of the court, this...day of...19 (seal)
It is, therefore, idle for the respondent to contend that the search warrant which should be admittedly issued in accordance with the above said form is valid even though it does not bear the seal of the court. I am of the opinion that all the conditions imposed in the form prescribed should be strictly complied with. Courts have been consistently taking the view that non-compliance with the mandatory provisions in respect of issue and service of summonses, notices and warrants render? the proceedings illegal,
7. In Chenniah v. Government of Mysore (1932) 10 Mys LJ 436 the former High Court of Mysore held that the procedure prescribed for preparation and issue of summons in Sections 69, 70 and 71 of the Code of Criminal Procedure applies to summonses issued to Jurors and Assessors also and failure to comply with the provisions of the said sections rendered the entire proceedings illegal and the defect cannot be cured under Section 537 of the Code of Criminal Procedure and that in the absence of proper service of summons, an assessor cannot be convicted for non-attendance. In, the said case there was no endorsement to the effect that the duplicate of the summons had been served on the assessor and the court held that there was no due service and the conviction of the assessor for non-attendance was declared illegal.
8. In Dasondhi v. Emperor AIR 1928 Lah 332 (2) Tek Chand J. rejected the contention advanced on behalf of the State that the mere omission to affix the seal of the court to the warrant does not invalidate the same. The learned Judge observed as follows:
Various other defects in the warrants were pointed out by the learned Counsel for the petitioners but I think it necessary to refer only to one of these namely that the warrants in this case did not bear the seal of the court issuing them. Under Section 75 Criminal P.C every warrant must bear the seal of the court and there is authority for holding that the omission of the seal on a warrant renders it void and a person offering resistance to apprehension on such a warrant docs not commit an offence under Section 225-B I.P.C. Reference may in this connection be made to Mahajan Sheikh v. Emperor ILR 42 Cal. 708 : AIR 1915 Cal. 737 and Alter Caufman v. Government of Bombay (1894) ILR 18 Bom 636 and to the decision In re, Phipps 1863 11 WR 730 on which the rulings were based.
The former High Court of Mysore took the same view in Govinda Setty v. State of Mysore AIR 1956 Mys 42. Padmanabhiah J. considered the essentials of a search warrant and held that the omission to affix the seal of the court invalidated the warrant and in the course of the order observed as follows:
Further it is seen that it does not bear the seal of the office from which it is issued or of the officer who issued it. This also renders the warrant defective. The learned Assistant Advocate General too did not seriously dispute about the warrant being defective for the reasons stated above. Under these circumstances I hold that Exhibit P. 2 is a defective warrant.
I am clearly of the opinion that when certain serious consequences result from the seizure of certain articles during the search of a premises on the authority of any search warrant issued by the Magistrate the omission to affix the seal of the court renders the search warrant invalid and no presumption on account of the seizure of the articles including the instruments of gambling during such search could be raised under Section 7 of the Hyderabad Gambling Act. In fact Mr. Mahajan admitted that if it is held that1 omission to affix the seal to Exhibit P. 3 renders it invalid the presumption under Section 7 of the Hyderabad Gambling Act cannot arise. I have already held that without the presumption the evidence on record is insufficient to record a conviction against the petitioners for an offence under Section 5 of the Hyderabad Gambling Act.
9. In the result, therefore, for the reasons stated above, this revision petition is allowed. The convictions of the petitioners are set aside and the petitioners are acquitted. The amounts of fine, if they are already paid by the petitioners are ordered to be refunded to them.