1. These are six references by the learned District Magistrate, Raichur, recommending that the charges framed against the petitioners under Section 5, Hyderabad Gambling Act (hereinafter referred to as the Act) be quashed and they be ordered to be discharged. In order to appreciate the point involved in these references, a few facts and some quotations in extenso need be mentioned and given. It appears that on 5th February, 1951, G. Sunkanna, Sub-Inspector in charge of Police Station at Lingsugur, submitted the following report to the Magistrate.
I beg to submit that I received information that one Sultan Khan of Kasaivadi of Lingsugur allowed gambling with playing cards and money in his house and so his house was treated as one of the gaming houses for the public. I request the Honourable Court for issuing a house-search warrant for arresting the gamblers and to recover money and cards to maintain law and order.
2. The Magistrate at Lingsugur passed the following order on the back of the report.
This is a report of Sub-Inspector, Lingsugur, wherein it is stated and requested that Sultan Khan of Kasaivadi has allowed gambling in his house and now the gamblers are there. Believing this report, I order that a house-search warrant may be urgently issued in the name of the Sub-Inspector, Lingsugur, stating that he is authorised to search the house of Sultan Khan of Kasaivadi, Lingsugur town, and take necessary (action) against him.
3. In pursuance of this order, a warrant was despatched with a covering letter No. 204 dated 5th February 1951. The Sub-Inspector on receipt of the warrant raided Sultan Khan's house the same day at 4 p.m.. There, he found eight persons playing cards with money. He accordingly arrested them and prepared the necessary panchnamas. The accused were thereafter challaned on 6th February 1951. Three witnesses were examined on behalf of the prosecution who deposed as to the mode the raid was effected, the persons found gambling and the property recovered from the house raided. No evidence was adduced to show that Sultan Khan derived any profit or gain from the gambling which according to the Prosecution was being carried on in his house. P. W. 1, the Sub-Inspector, no doubt in his preliminary examination said that the accused used to pay one anna per game to the owner of the house as compensation but in cross-examination admitted that his knowledge in this respect was based on hearsay. In this state of evidence, the charges as stated above were framed against the petitioner.
4. Mr. Lakshman Rao Ganu contends on behalf of the petitioner that in the absence of proof that Sultan Khan collected one anna per game as profit or gain to himself, his house cannot be brought within the category of common gaming house as defined in Section 3 of the Act. Hence no offence was committed even if the petitioners were found gambling there. The learned Government Advocate feebly attempted to controvert this contention by drawing our attention to the Sub-Inspector's testimony. But that testimony is no evidence as it is based on hearsay. It is a mistake to assume as appears to have been done in this case that gambling per se is an offence under the Gambling Act. It is only gambling in a common gaming house as defined in the Act that is made an offence under Section 5 of the Act. Common gaming house is denned to mean any house, walled enclosure, room or place in which cards, dice or other instruments of gaming are kept or used for the 'profit or gain of the person' owning, occupying, using or keeping such house, enclosure, room or place, whether by way of a charge for the use of instruments of gaming or of the house, the enclosure, room, or place, or otherwise whatsoever. It is thus clear that no charge could be framed under Section 5 of the Act unless the prosecution establishes by legal evidence that the accused were found playing or gaming in a common gaming house.
5. But it is contended by the learned Government Advocate that the charge can be sustained on the strength of the legal presumption as embodied in Section 7 of the Act. That Section provides that when any cards, dice, gaming tables or other instruments or means of gaming are found in any common gaming house entered or searched under Section 6 or about the person of any of those who are found therein, it shall be evidence until the contrary is made to appear that such house, walled enclosure, room or place is used as a common gaining house and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Magistrate or Police Officer or any of his assistants. It is urged that inasmuch as the search was made under a warrant issued by the Magistrate under Section 6 of the Act, the presumption would apply so as to justify the charges framed and there was no occasion to quash them unless and until the accused rebutted the presumption and adduced evidence in support of their innocence. If the proposition were as simple as propounded by the learned Government Advocate then there would be an end of the matter. From the language of the section, it is clear that the presumption provided for therein can arise only where search is made in strict compliance with the provision of Section 6 of the Act, and if the search is not proved to have been duly made no such presumption can be made. It follows, therefore, that in order to entitle the prosecution to invoke to aid the presumption under Section 7 of the Act, there must be affirmative proof that search was effected strictly in accordance with the provision of Section 6 of the Act. As already stated, no warrant has been produced m this case nor is it to be found on the file of the court below. This tact distinguishes - Emperor v. Mohd. Yusaf AIR 1946 Lah 26 (FB) and - Vallibhai Ibrahim v. Emperor 34 Bom LR 1447, which have been cited by the teamed Government Advocate. In these cases, the warrant was before the court and it was held that provided the warrant issued under Section 6 of the Act is on the face of it regular, the presumption under Section 114, Illust. (e), Evidence Act (Section 91 of the Hyderabad Evidence Act) does arise, and the court may presume that the officer issuing the warrant has acted on credible information. And it would follow that the presumption under Section 7 would arise if as a result of ensuing search the articles indicated in Section 7 are found. In the present case, we need not rely on any presumption under Section 91, Hyderabad Evidence Act to support a presumption under Section 7 of the Act because we have the entire proceeding before us which resulted in the issue of the warrant authorising the search.
6. The Magistrate's order of 5th February 1951 was based on the ground that the Sub-Inspector had reported that Sultan Khan had allowed gambling in his house and the gamblers were there. This ground was quite insufficient for the issue of the warrant because in the words of Section 6 it was not credible information that the house was used as a common gaming house. We will have to presume that the warrant was issued in terms of the order of 5th February 1951. It has been held by the Calcutta High Court in the case of - Emperor v. Gobinda Chandra 192 Ind Cas 182 (Cal), that a common gaming house has a special meaning under the Public Gambling Act and unless that expression is used in a warrant under Section 6, the prosecution cannot avail themselves of the special provision in Section 7. Again the same High Court held in - Jitendra Bhusan v. Emperor 195 Ind Cas 7 (Cal), that a warrant which merely states that the Magistrate has reason to believe that the house is used for gambling is not legal, and if the house is searched under such a warrant, the presumption which is raised under Section 7 of the Act cannot arise from the instruments of gambling being found therein. - 'In re: Thambi Iyengar' 1945 Mad WN 771 (1), where the warrant did not show that the officer who Had issued it has reason to believe that the house in question was being used as a common gaming house all that it said being that information had been laid before him that gambling was going on in the house, it was held by Chandrasekhara Aiyar J. that there was no compliance with the terms of Section 6 and the presumption under Section 7 of the Act did not arise. This case has been followed by Shripat Rao J. in - Yakub Sab v. State of Hyderabad AIR 1952 Hyd 42, the head-note of which runs as follows:
Where a search warrant issued under Section 6 if the Act merely stated that after satisfying en the basis of the affidavit that gambling was going on in a particular hotel, the search warrant was issued but there were no words in the warrant to show that the officer who issued it had reason to believe that the hotel in question was a common gaming house, held, the warrant was not in accordance with Section 6 of the Act, and as such the presumption under Section 7 could not arise.
7. We are inclined to the view taken in these cases because the section authorises a presumption of guilt against the accused and is a departure from the principle of criminal jurisprudence, that an accused person is presumed to be innocent until the contrary is proved; but under the Act, the onus probandi is shifted from the accuser to accused who has to establish his innocence. Therefore, it is necessary that Section 7 should be very strictly construed.
8. For these reasons, we accept the reference, quash the charges framed against all the accused and order them to be discharged. The property recovered shall be restored to him from whose possession it was taken.