1. This case was referred to a Bench of two Judges by a Single Judge. The referring order, which states the facts of the case, may be read. There is a slight error in the referring order. It is stated therein that:
the warrant which was issued by the Superintendent of Police on the basis of credible information...was directed not to a sub-inspector or officer not below....
2. The passage should read as follows:
The warrant which was issued by the Superintendent of Police on the basis of credible information...was directed not to an inspector or officer not below....
3. Paragraph 333 in Ch. 26 of the U.P. Police Regulations, enjoins that the warrant issued under Section 5, Public Gambling Act, 1867, should be directed to an Inspector or officer not below the rank of a Sub-Inspector in charge of a police station.
4. The only question that we have got to decide is whether the three slips of paper found in the house raided are instruments of gaming within the definition of those words in Section 1, Public Gambling Act, 3 of 1867. Instrument of gaming includes any article used as a means of appurtenances of, or for the purpose of carrying on or facilitating, gaming. We are satisfied that these slips of paper did facilitate gaming. It was argued on behalf of the applicant that some limit should be put to the expression 'facilitating gaming.' It is not necessary for us to define exactly what 'facilitating gaming' means, but we may say that anything which assists gaming or which is used for the furtherance of gaming would be instruments of gaming, and it is not possible to give an exhaustive list of such articles. It will be necessary in a given case to consider the article in question with reference to the game that is played. In the present case there is not the slightest doubt that these slips did assist gaming. In Lachhi Ram v. Emperor AIR 1922 All 01, two learned Judges of this Court in a very similar case held that the forms upon which the wagers were recorded were instruments of gaming, and any person could be convicted for keeping a common gaming house even though the only instruments of gaming that were discovered in the house were the cash-box in which the money was kept and the forms upon which the wagers were recorded. In the Full Bench case of Atma Ram v. Emperor AIR 1922 All 01, at) p. 251 (of 22 A.L.J.), the learned Chief Justice remarked that in cases of satta gambling often the only tangible evidence that gaming had been going on was the discovery of memoranda of bets made, whether these were kept in books or on loose pieces of paper.
5. The whole object of the legislature would be defeated if the presumption of keeping a common gaming house by the discovery of instruments of gaming therein could not be made by the recovery from the house in question of such articles which are perhaps the only tangible evidence of gaming in a case of this description. In the case of Ismail v. Emperor : AIR1927All480 , a learned Single Judge of this Court observed in connexion with a very similar case that there can be no doubt that the papers containing the accounts of satta gambling were not waste papers, as was contended by the accused in that case, but were-memoranda of satta gambling, and that the case came under the Gambling Act, there being no substantial difference between the bits of paper rolled up in a ball and put in the jar and these memoranda of bets kept in the house itself. We are. therefore satisfied, upon the authorities of this Court and upon the plain language of the Act, that the papers found in the house raided were instruments of gaming. That being so, the applicants were rightly convicted for keeping a common gaming house.
6. The next contention that was advanced before us was that common gaming house under the United Provinces Public Gambling Act, Local Act 3 of 1825, means a house in which instruments of gaming are kept or used for such gaming, and the argument is that the mere fact that these instruments were discovered in the house does not show that they were kept or used for gaming. This, as was clearly mentioned in the referring order, is not a case in which a presumption arises under Section 6, Public Gambling Act, by reason of the fact that the warrant was not issued to a properly authorised officer, as laid down by Section 5 of the Act. In appropriate cases regard being had to the surrounding circumstances it might be permissible under Section 114, Evidence Act, to raise a presumption that these instruments of gaming were kept or used for gaming, but it is not necessary for us to invoke such a presumption for the purposes of the present case. It has been stated by both the Courts below that there is direct evidence to the effect that Lachhi Ram, and Hardwari, the accused in this case, had been receiving satta gambling stakes in the ghar. The evidence referred to is the evidence of two persons Badri and Hari Ram, who were believed, and it is to the effect that they has slaked money on digits on the morning previous to the raid. It is therefore clear that over and above the fact that instruments of gaming were found in the house, there is the evidence of two witnesses to the effect that they staked money and the stakes had been accepted by Lachhi Ram and Hardwari. There can therefore be no doubt that the instruments of gaming were kept or used for such gaming. It was then argued (an argument which we have not been able clearly to appreciate) that there has been a confusion in the judgments of the Courts below inasmuch as they have not drawn a clear distinction between the evidence that was tendered on behalf of the prosecution to the effect that gaming was going on in the morning and evidence to the effect that instruments of gaming were discovered at the time of the raid in the afternoon. We are of opinion that there is no force in this argument. The question that the Courts below had to decide was whether Lachhi Ram and Hardwari were the owners or occupiers of a common gaming house, and the whole of the evidence that was tendered by the prosecution was admissible on the point and tendered to show that Lachhi Ram and Hardwari kept a common gaming house.
7. Lastly, it was argued that the lease of the house was only in favour of Hardwari and Lachhi Ram has been wrongly convicted. We were informed that Lachhi Ram had died during the pendency of the present revision, but we have considered this point as well, and all that we need say regarding it is that there is a finding of the Magistrate to the following effect: 'I have no doubt that the ghar in question is kept by Hardwari and Lachhi, accused.'
8. The sentence does not seem to be excessive. We therefore dismiss this application in revision.