1. The total number of applicants in this revision is nine. One of them Lalji was convicted under Sections 3 and 4, Gambling Act, and sentenced to a fine of Rs. 25 on each count. The remaining eight were convicted under Section 4 of the same Act and sentenced to pay a fine of Rs. 25 each. All of them went in revision to the learned Sessions Judge who by an order dated 19th April 1947 confirmed the convictions and sentences passed on them. The applicants have now come up in revision to this Court.
2. The facts which have given rise to this application may now be given shortly: The prosecution story is that Lalji was keeping a common gaming house, that on 27th October 1946 at about 2 P.M., the applicants were found gambling in the house of Lalji when the second officer of Sisamau who had a search warrant under Section 5 of the Act went to conduct a search of that house. The main point which has been raised in this case is that the applicants could not be convicted under law as the search warrant was on the face of it illegal. The ppsition in regard to the search warrant is that it was neither addressed to any particular police officer nor did it state that the place which was to be searched was a common gaming house. There is no doubt that the warrant suffers from these two defects. The question is whether the defects from which the warrant undoubtedly suffers are curable under Section 537, Criminal P.C. So far as the fact that the name of the police officer is not mentioned in the warrant is concerned, the position is that the law does not require that the warrant must be directed to one or more police officers. I am not, therefore, disposed to attach any importance to the plea that the warrant was not addressed to any particular police officer. It has been repeatedly held that the police administration of the country would become impossible if a warrant had to be directed by name to a police officer and upon his transfer it became incapable of execution till the name of some other officer had been sub-stituted in his place.
3. The other defect from which the warrant suffers is that it did not state that the house which was to be searched was a common gaming house. This defect is of a more serious nature. Section 6, Gambling Act, enables a presumption to be raised against persons found in a common gaming house of being there for the purpose of gaming. It, therefore, casts the burden of proving that a person found in the common gaming house was not there for the purpose of gaming, upon the person so found. For this reason it is important to ensure that the provisions of Section 5 which lay down the requirements of a legal warrant under the Gambling Act are complied with strictly. The position in this case is that if the warrant was illegal under Section 5, no presumption would arise that the applicants found in the house had gathered there for the purpose of gambling. That they were gambling will have to be proved as a fact by cogent and independent evidence without any presumption being made that they were so gambling.
4. In Jamna Prasad v. Emperor 11 A.I.R. 1924 All. 128, a warrant had been issued under Section 5 which gave an erroneous description of the house and of the caste of the person whose house was to be searched. These irregularities were held sufficient by Kanhaiya Lal J. to hold that the warrant was illegal. Kanhaiya Lal J. observed that:
The erroneous description of the caste in the original warrant may not be very material, but the omission to address it to a definite police officer and to describe the house by-its boundaries or number renders the warrant vague and indefinite, and it cannot be said that, under that warrant, the officer making the search was authorised to make it.
5. The second case to which attention may be drawn is that in Paras Ram v. Emperor : AIR1930All740 , where it was held that:
The presumption under Section 6, Public Gambling Act, does not arise when it is found that the warrant authorising a police officer to enter a common gaming house is an illegal warrant.
6. In Thakar Das v. Emperor : AIR1936All109 , Iqbal Ahmed J. held that:
The presumption provided for by Section 6 can arise only where search is made in strict compliance with the provisions of Section 5 of the Act; and if the search is not proved to have been duly made, no such presumption can be made. It follows that in order to entitle the prosecution to invoke to its aid the presumption under Section 6 of the Act, the prosecution must prove affirmatively that the search was in accordance with the provisions of Section 5 of the Act, and where this fact is not proved the conviction of the accuged cannot be sustained merely on the strength of the presumption referred to in Section 6. Instruments of gaming like cards can be found in any and every house, and the mere recovery of such articles can by no means lead to the presumption that a house is a 'common gaming house'. It is only when entry in the house is effected and search is made on receipt of 'credible information' by the officers mentioned in Section 5 that a house etc. is used as a 'common gaming house' and instruments of gaming are on such search found in the house that the presumption referred to in Section 6 comes into play. In other words, unless there is something on the record to show that the officer who conducted the search or issued the warrant for search did so in pursuance of the belief that the house was used as a 'common gaming house', no presumption can, on the recovery of instruments of gaming from the house, be made against the accused.
7. The question, therefore, which have to consider is whether the omission of the word 'common' in the warrant constitutes an illegality which is curable by Section 537, Criminal P.C. Learned Counsel for the Crown has argued that the test is whether the accused has been prejudiced or not. Section 6, Gambling Act, as I have, said, casts the burden of proving that a person found, in a common gaming house was not participating in gambling upon the person so found in that gaming house. For this reason, as I have indicated before, it cannot be said that an accused person is not prejudiced by a non-compliance with the strict provisions of Section 5 of the Act. On the assumption that the search warrant was not in accordance with law, the conviction of the applicants cannot be justified as it is not supported, as far as I can see, by any independent testimony. Of the two independent witnesses relied upon by the learned Magistrate, one says that he did not actually see any one gambling, but merely found some kauris etc. lying in the house where gambling was supposed to be taking place. The other witness who says that he saw the applicant gambling was not believed by the learned Magistrate. The position is that there being no presumption that the accused who were found in the house, where it is alleged that gambling was taking place, were taking part in gambling in a common' gaming house, it was for the prosecution to prove by independent evidence affirmatively that the house in which the accused were found was being used as a common gaming house. This the prosecution have failed to do.
8. For the reasons given above, I allow this application in revision and set aside the conviction and sentences passed on the applicants. The fines, if paid, shall be refunded to them.