1. The facts are as follows: A raid was made on a gaming house and certain men were arrested. The Police seized, amongst other things, the money that they found on the persons of the men arrested and also what is vaguely described in the search list as 'two anna and four anna bits which were found under the thigh of Ram Sakhi Ram'--these are the words of the search list. The Magistrate, who tried the case, does not appear to have determined whether the latter money was on the person of Ram Sakhi Ram or on the ground. From the wording of the search list it is not clear whether Ram Sakhi Ram was or was not sitting on the heap of coins and trying to conceal them. Further the Police failed to note how much money was in the heap. It is unfortunate that the learned Sessions Judge, while endeavouring to put right what he considered to be an error of the Magistrate, has failed to examine the facts in detail or in the light of the decision of Lindsay, J., in Tulla v. Emperor 54 Ind. Cas. 250 : 17 A.L.J. 368 : 41 A. 366 : 1 U.P.L.R.(A) 161 : 21 Cr. L.J. 42, He quotes the decision but does not appear to have grasped the meaning of it. Lindsay, J., laid down that under Section 8, Act III of 1867, money found on the persons of men arrested in a common gaming house could not be confiscated, but money seized on the premises can be confiscated. The point hardly requires judicial interpretation, for the words of the section are very clear. It says that 'the Magistrate may order all the instruments of gaming found therein to be destroyed, and may also order all or any of the securities for money and all other articles seized, not being instruments of gaming, to be sold and converted into money and the proceeds thereof with all moneys seized therein to be forfeited.' Therein means in the common gaming house. This section justifies the seizing and forfeiting of money found; on the table or on the floor or other places in the house, but not on the parsons of the men arrested therein. The reason for this distinction is tolerably obvious. A man found in a common gaming house is liable to have certain money confiscated, but he is not liable to have everything found upon his person confiscated. A man might have currency notes for Rs. 10,000 in his pockets and he might be gambling with 2 anna bits. The law does not contemplate confiscating Rs. 10,000 when the Rs. 10,000 in not being used for the purpose of gaming. This is what Lindsay, J, lays down in that decision. Other Judges have explained the law before. The point in this reference cannot be decided as it stands, for the order of confiscation directs that the cash seized shall be forfeited, whether it was found on the persons of the accused men or not. I send the case back to the learned Sessions Judge. It is clear that none of the money found on the persons of the accused men can be forfeited. He will, however, ascertain and report whether the 2 anna and 4 anna bits stated to have been under the thigh of Ram Sakhi Ram were on Ram Sakhi Ram's person or on the floor. From the extraordinarily vague description given in the search list it in impossible for me to say whether he had been concealing the money in his dhoti or whether he was sitting on the money. If the money was in his dhoti, it was on his person and cannot be confiscated, but it the money was on the floor and he was sitting on it, it can be confiscated. It would have saved a great deal of trouble if the learned Sessions Judge had gone into the facts on these points himself. Further there is not a word on the record to show hew many 2 anna and 4 anna bits there were. The learned Sessions Judge will kindly report on these matters and send the reference back within a fortnight of the receipt of this order.
2. I find that Rs. 24-11-9 was seized in the gaming house. This amount does not include the Gorakhpuri pice and the Kauris or the money found on the persons of the gamblers. The sum of Rs. 24-11-9 has been rightly confiscated, The Gorakhpuri pice and the Kauris will also be confiscated. The money found on the persons of the gamblers will be returned to them. Let the record be returned.