P.C. Banerji, C.J.
1.The applicants have been convicted under the Gambling Act III of 1867, as amended by Act I of 1017, Raghunath has been convicted under Section 8, the others under Section 4 of the Act, The case against these persons was that they were carrying on wagering or betting on sattas relating to the sale of opium. Raghunath was charged with keeping a common gambling house. Under Act I of 1917 wagering or betting has been included in the definition of ' game, ' and any article used as a means or appurtenance of or for the purpose of carrying on or facilitating gaming is included in the expression ' instrument of gaming. ' What happened was this. The Police raided the shop of Raghunath where he deals in cloth. They found the other accused (and some others) assembled there, sitting round a lighted lamp and some writing was being done by one of the persons assembled. The Police seized a number of papers which were found in that room. They also found money in a box of Raghunath and loose silver pieces and money in the possession of the other accused. It was stated that the papers which were discovered were papers used for. the purpose of betting and were, therefore, instruments of gambling. What the papers really were it is difficult to say. They contained writings which were in cypher, One witness, namely, Kundan Lal (prosecution witness No. 6), attempted to explain what some of the papers meant. If his statement is correct the papers show that they related to betting. The paper which was being written at the time the Police raided the house of Raghunath has not been produced or proved. I have considered the evidence and have heard the arguments addressed to me on behalf of the accused and the Crown. It is very difficult to say whether the papers found did in fact relate to wagering or betting. With the exception of one paper the others did not show that this betting, if any, was going on after the passing of Act, I of 1917, which made betting an offence under the head of gambling. Having regard, however, to the nature of the papers, it may be assumed that they related to gambling In order, however, to sustain the conviction of Raghunath for keeping a common gambling house it was necessary for the prosecution to prove not only that he owned the house, or was the occupier of it, and that instruments of gambling were kept or used in it, but that they were kept or used for the profit or gain of Raghunath. There is not a particle of evidence to show that he made any profit or gain out of the transactions which might have taken place in his house. It is possible that he made some profit, but in the absence of evidence to show that profit or gain was made he could not be convicted merely upon suspicion. Therefore, in my opinion, his conviction for keeping a common gaming house as defined in Act I of 1917 cannot be sustained. As .regards the other accused there is no evidence whatever that they were engaged in baiting or wagering when the Police raided the house. As it has not been established that the house was a common gaming house, their presence in that house can raise no presumption against them and even if the house was a common gaming house, no presumption will arise against them unless it can be shown that gambling was going on at the time when they were present. As to this there is no evidence whatever. It is probable, as 1 have said above, that gambling (that is betting or wagering) used to be carried on In Raghunath's house; but that alone would not justify his conviction or the conviction of the other accused, in the absence of evidence showing that his house was a common gaming house within the definition of that expression in the Act and that the other accused gambled in that house. Under these circumstances the conviction must be set aside. I allow the application, set aside the conviction of the accused and the sentence passed on them and direct that the fines, if paid, be refunded. 1 also direct that the moneys seized in the house be returned to the persons from whose possession they were seined.