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Emperor Vs. Basant Lal and anr. - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1941All330
AppellantEmperor
RespondentBasant Lal and anr.
Excerpt:
.....no reference at all to 'dara' gambling, which is a well known and specified form of 'satta' gambling. 'dara' gambling is a specified form of 'satta' gambling and the modus operandi of that form of gambling is well known and has been set out in lachhi ram v. emperor air1933all554 .having found that the gambling at the shop of the respondent was 'dara''gambling the learned magistrates were obviously wrong in holding that the failure on the part of the prosecution to prove by definite evidence the commodity in respect of which the gambling was going on was a fatal defect. at the end of his judgment the learned judge has made certain observations with which we find ourselves entirely in accord and which we think might well be applied to the present case......on the prosecution to prove in the present case that the shop of the respondent was a 'common gaming house' as defined by act 3 of 1867 as follows:'common gaming house' means (1) in the case of gaming on the digits of the sale price of any commodity, for example opium or cotton, or on the digits of papers or bales manipulated from within jars or other receptacles, or on the occurrence or non-occurrence of any natural event, for example, rainfall or the quantity of rainfall, any house, room, tent, walled enclosure, space, vehicle, vessel or any other place whatsoever in which instruments of gaming are kept or used for such gaming.8. it is conceded by learned counsel for the respondents that it was not necessary at all in the present case for the prosecution to establish that the.....
Judgment:

Mulla, J.

1. This is an appeal by the Provincial Government against a finding of acquittal recorded by a Bench of Honorary Magistrates in a case in which two persons, Basant Lal and Earn Sanehi, who are the respondents in this appeal, were prosecuted by the police on a charge under Section 3, Public Gambling Act (3 of 1867). There can be little doubt about the facts of the case as found by the learned Magistrates. It appears from the evidence on the record that a warrant under Section 5 of the Act was issued by the Superintendent of Police, Etawah, to the City Kotwal, B. Eaghupal Singh, authorising him to search the shop of Basant Lal . Basant Lal keeps a cloth shop in the city of Etawah and Earn Sanehi, the other respondent, is employed at that shop as a servant. The police had received information that the shop was being used as a place for 'satta' gambling and had consequently obtained the warrant stated above from the Superintendent of Police. This warrant was executed on the evening of 17th October 1939. Before executing this warrant, the police officer named above had, in order to assure himself, sent a man named Sital with some marked coins consisting of four 2 anna bits and two 1 anna bits in order to lay a bet at the shop of Basant Lal . Sital had Lal n a bet accordingly and had gone back and informed the police officer that he had done so. Then the police officer proceeded to the shop and found six persons there, namely the two respondents Basant Lal and Earn Sanehi, a man named Bhikka, who has appeared as a witness for the prosecution, and three other persons with whom we are not concerned in this case. It appears that Bhikka was at that very time engaged in laying a bet. He had just paid a sum of Rs. 7-8-0 to the respondent Basant Lal and certain numbers which he had mentioned had been noted down on a slip of paper by the respondent Earn Sanehi.

2. It was at this stage that the police officer arrived at the shop and immediately seized the sum of Rs. 7-8-0 from the hand of the respondent Basant Lal and the slip of paper on which the four numbers mentioned by Bhikka were noted, from the hand of the respondent Earn Sanehi. Bhikka, as stated above, is a witness for the prosecution and ha has clearly stated that he had made what is generally known in those parts as a 'dara bid.' From the slip of paper in which the numbers given by him were noted by the rsspondent Earn Sanehi it appears that Bhikka had staked a sum of Rs. 1-14-0 on each of four different numbers, namely, 56, 87, 88 and 92. Bhikka has explained in his evidence that he was to get Ks. 150 for the stake of Re. 1-14-0 in the case of any one of those numbers proving to be the winning number. It is true that he has not stated in his evidence how the winning number was to be ascertained, but he has stated that it was a 'dara bid' and it appears to be a matter of common knowledge in that part of the province what a 'dara bid' is.

3. We may mention here that 'dara bid' has been referred to and described at some length in Lachhi Ram v. Emperor : AIR1933All554 . In fact, we may state further that that case fully covers the facts of the present one. On a search of the shop a number of slips-15 in all-including the slip containing the four numbers mentioned by Bhikka, were recovered, six from underneath a pillow against which the respondent Basant Lal was resting, four from underneath a small wooden box placed near by and four from the possession of respondent Earn Sanehi, besides Bhikka's slip which is Ex. P-2 on the record and which was recovered in the circumstances already stated. We have examined all these slips very carefully and we find it a very significant fact that upon every slip, other than that relating to Bhikka, a certain name was always mentioned as that of the person on whose behalf certain bids of certain amounts on certain numbers had been made. In the slip relating to Bhikka we find only four numbers and the amount of Re. 1-14-0 against each number, but there is no name of the person by whom or on whose behalf the bids had been made. This fits in entirely with the story given by Bhikka in his evidence, for he states that the police arrived on the scene just as he was paying Bs. 7-8-0 to the respondent Basant Lal and had mentioned the four numbers to the respondent Ram Sanehi who had noted them down on a, slip of paper. This shows that the police happened to arrive on the scene before Bhikka could give the name of the person by whom or on whose behalf the bids were being made. Besides the evidence of Bhikka, to which we have referred in some detail, we find also on the record the evidence of the police officer and a witness named Bankey Lal to prove the search and the circumstances in which the slips were recovered from the two respondents.

4. The defence raised by the respondents was that no person ever came to their shop to stake any money as suggested by the prosecution. This defence was taken in spite of the fact that the four 2-anna bits and two 1-anna bits which had been marked by the police officers were recovered in the course of the search of the shop. It was totally denied in defence that any 'satta' gambling was being carried on in the shop and it was contended that the amount of money recovered by the police represented the price of the cloth sold at the shop during the day. Three witnesses were examined to support the defence case. The learned Magistrates constituting the Bench found it proved upon the evidence that 'dara' gambling was going on at the shop of the respondent Basant Lal as alleged by the prosecution. Their finding may best be set out in their own words as follows:

From the evidence adduced on behalf of the prosecution it is quite evident that 'dara' gambling was going on at the shop of Basant Lal as is alleged by the prosecution. The learned Counsel for the accused has argued the case at great length before us on points of fact and law. So far as the points of fact are concerned, we are not impressed with the arguments of the learned counsel. As to the law point raised by the learned Counsel for the accused that the subject-matter of the gambling is not explained by the evidence led by the prosecution we agree with him. A ruling of the Hon'ble Mulla J. which is reported in the 9th October 1939 edition of the 1939 AWE 7362 has been cited by the learned Counsel in support of his contention and it applies to the present case. Therein his Lordship has ruled out that it is incumbent for the prosecution to prove by definite evidence the commodity in respect of which the gambling is going on. In the case before us the prosecution has failed to prove this point. The result is that the case fails on this point and the prosecution is responsible for its failure.

5. It is from this order that the Provincial Government has come up in appeal to this Court. The first point for consideration and in fact the only point is whether the interpretation pufc by the learned Magistrates upon the case referred to by them which is reported in Chiranji Lal v. Emperor : AIR1939All734 is correct.

6. The answer to that question is undoubtedly in the negative and learned Counsel for the respondents had to concede that the case relied upon by the learned Magistrates was clearly distinguishable from the present case. In Chiranji Lal v. Emperor : AIR1939All734 this Court had to deal with a summary trial in which the judgment of the learned trying Magistrate which constituted the only record in the case showed nothing but that the prosecution alleged that there was 'satta' gambling going on at a certain place. There was no reference at all to 'dara' gambling, which is a well known and specified form of 'satta' gambling. There was not a word on that record to show that the prosecution had produced any evidence relating to the recovery of any slips of paper such as those that have been found in the present case. It was taken for granted in that casa that 'satta' gambling related to the price of some commodity and it was in such circumstances that this Court held that it was incumbent on the prosecution under the law to prove by definite evidence the commodity in respect of which the alleged 'Satta' gambling was going on. That ruling was based upon certain precedents of this Court which were referred to in that case. There can hardly be any doubt upon the facts which we have already mentioned that the case in Chiranji Lal v. Emperor : AIR1939All734 has no application whatever to the present case. Indeed the finding of the learned Magistrates as stated above shows that it was proved in the present case that 'dara' gambling was going on. 'Dara' gambling is a specified form of 'satta' gambling and the modus operandi of that form of gambling is well known and has been set out in Lachhi Ram v. Emperor : AIR1933All554 . Having found that the gambling at the shop of the respondent was 'dara'' gambling the learned Magistrates were obviously wrong in holding that the failure on the part of the prosecution to prove by definite evidence the commodity in respect of which the gambling was going on was a fatal defect. 'Dara' gambling had no connexion whatever with the price of any commodity. 'We have therefore no hesitation in holding that the learned Magistrates were wholly wrong in applying the authority in 1939 A 1 j 9902 to the facts of the present case and in holding on that basis that the prosecution could not succeed.

7. It is however argued by learned Counsel for the respondents that it was incumbent on the prosecution to prove in the present case that the shop of the respondent was a 'common gaming house' as defined by Act 3 of 1867 as follows:

'Common gaming house' means (1) in the case of gaming on the digits of the sale price of any commodity, for example opium or cotton, or on the digits of papers or bales manipulated from within jars or other receptacles, or on the occurrence or non-occurrence of any natural event, for example, rainfall or the quantity of rainfall, any house, room, tent, walled enclosure, space, vehicle, vessel or any other place whatsoever in which instruments of gaming are kept or used for such gaming.

8. It is conceded by learned Counsel for the respondents that it was not necessary at all in the present case for the prosecution to establish that the slips of paper found in the respondents' shop had any connexion with the sale price of any commodity. On behalf of the Crown it was pointed out that these slips were connected with 'the digits of papers manipulated from within jars or other receptacles' as set out in the definition quoted above. The contention on behalf of the respondents is that it was necessary for the prosecution to establish that the winning number was to be determined by the method referred to in the definition namely, 'the digits of papers manipulated from within jars or other receptacles.' We are entirely unable to accede to that contention. If the prosecution were asked to prove in every case that the winning number was to be ascertained in that particular manner the presumption referred to in Section 6 of the Act would be rendered wholly nugatory. Where a house is searched under a warrant issued in accordance with Section 5 of the Act and any instruments of gaming as denned by the Act are found, a presumption arises under Section 6 of the Act that the house or place where such instruments of gaming are housed is a 'common gaming house' within the meaning of the Act.

9. In the present case it is not denied that the shop of the respondent was searched under a warrant issued under the provisions of Section 5 of the Act. Now the question is whether the slips of papers that were found in the shop and were also recovered from the persons of Bhikka and Earn Sanehi did or did not constitute instruments of gaming within the meaning of the Act. Now according to the Act 'the instruments of gaming include any article used as a means or appurtenance of or for the purpose of carrying on or facilitating gaming.'.' This definition has been fully considered and interpreted by this Court in 1933 A 1 J 12541 to which reference has already been made. It was definitely held in that case that slips such as those that have been found in the present ease constituted instruments of gaming and hence there was a presumption that any place where such instruments were found was being kept as a common gaming house. In support of his contention learned Counsel for the respondents relied upon some of the observations made by Allsop J. in Qabul Singh v. Emperor : AIR1940All412 . The observation upon which learned Counsel has relied runs as follows:

It is not all gaming of digits which constitutes a common gaming house. If the winning number is to be ascertained, in some manner other than that mentioned in para. 1 of the definition in Section 1, Public Gambling Act, then the place where the gaming was taking place would not be a common gaming house unless the occupier was obtaining some profit from the use of the place.

10. It has to be borne in mind that in that case also the learned Judge eventually held that the discovery of certain slips bearing certain numbers was evidence, until the contrary was made to appear, that the place from which such slips were recovered was used as a common gaming house. At the end of his judgment the learned Judge has made certain observations with which we find ourselves entirely in accord and which we think might well be applied to the present case. They are as follows:

In the circumstances of this case these slips of paper with numbers upon them were found and one o{ the facts with which we are confronted is that none of the applicants ever attempted to explain the purpose for which these slips were being used. Slips of this kind are commonly used for the purpose of betting or wagering and in the circumstances it seems to me that the learned Magistrate was justified in concluding that these slips were being used as a means of or for the purpose of carrying on some form of gaming. They were instruments of gaming and their discovery was evidence which the Magistrate was entitled to consider as proving that the place where they were found was Mi common gaming house or, in other words, that the other requisites of a common gaming house were established.

11. In the present case we have no doubt whatsoever that the slips which were recovered from the shop of the respondents in the circumstances stated above constituted instruments of gaming within the meaning of the Act and gave rise to a presumption under Section 6 of the Act, that the shop was used as a common gaming house. That presumption was not in any way rebutted by the defence and hence it must be held that the shop of the respondents was being used as a common gaming house and the two respondents must be held guilty of an offence under Section 3 of the Act. Basant Lal is the owner of the shop, while the other respondent Earn Sanehi has been proved to be a person who prepared the slips which have been found to constitute instruments of gaming and he, therefore, assisted in conducting the business of the shop which was being used as a common gaming house.

12. The result, therefore, is that we allow this appeal and setting aside the order of acquittal passed by the learned Bench Magistrates convict respondents Basant Lal and Earn Sanehi of an offence under Section 3, Public Gambling Act (3 of 1867). Having regard to all the circumstances of the case, we think a sentence of a fine of Rs. 50 on Basant Lal and that of Rupees 5 on Earn Sanehi would be sufficient to meet the ends of justice. We accordingly impose a fine of Rs. 50 on the respondent Basant Lal and of Rs. 5 on the respondent Earn Sanehi. In case of default, Basant Lal will undergo one month's simple imprisonment and Earn Sanehi will undergo one week's simple imprisonment.


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