1. This is an application by one Nanhe Lal to obtain a reversal of his conviction under Section 4 of the Public Gambling Act (Act No. III of 1867).
2. It appears that an Assistant Superintendent of Police, who is not authorised under Section 5 of the Public Gambling Act to search a place without a warrant, raided certain premises and arrested certain people in it, as to whom it is said that they were gambling in the house. Nanhe Lal was convicted by the Magistrate who heard the case under Section 3 and under Section 4 of the Gambling Act. The learned Sessions Judge on appeal set aside his conviction under Section 3 on the ground that it had not been proved that Nanhe had taken part in organising the gaming.
3. In this Court it is contended that the only evidence on which it has been found that the place was a public gaming place consists of the statement of one Bulaqi and the fact that certain dice and other instruments of gaming were found at the place. It is urged that the circumstances and the evidence relied upon are both inadmissible in evidence. It having been found that the search was illegal, the presumption under Section 6 of the Gambling Act does not arise. It follows, therefore, that the presence of dice and the board and the pot by itself does not raise any presumption that the premises were being used as a common gaming house. As to the evidence of Bulaqi it appears that he was one of the persons arrested during the raid. He could be rightly examined on oath, as had. been done, only in case the premises were entered into under the provisions of the Act (vide Section 10 of the Act). As it has happened, the premises were not entered into under the provisions of Act III of 1867. They were entered into contrary to the provisions of the Act, and, therefore, the Magistrate was not authorised to call upon one of the persons arrested to take oath and give evidence in the case. Thus the presumption and the direct evidence both go. The result is that the conviction of Nanhe Lal cannot be upheld.
4. I allow the application, set aside the conviction of Nanhe Lal under Section 4 of the Gambling Act and order that the fine, if paid, be refunded.