1. This State appeal is from the acquittal by a Magistrate, of charges under sections 3 and 4 of the Gambling Act of eight persons among whom Mangilal son of Jamnaram was the owner of a house which was presumed to be a common gambling-house, and the others seven in number who it was alleged were actually present at the lime of the search in execution of a warrant ostensibly issued under Section 5 of the Act were presumed to have been present there for the purpose of gambling. Several of the allegations about the actual process of the gambling having been disbelieved, the case centers round the propriety or otherwise of raising under Section 6 of the same Act the presumption that it was a common gaming house and that the persons had collected there for the purpose of gambling. That not having been rebutted, it is urged by the State that these persons should have been convicted under the respective sections even though on the facts we may not be prepared to hold that there was direct evidence of the process of gambling going on before the eyes of the search party.
2. A batch of exactly similar State appeals have been disposed of by separate judgments by a Divisional Bench of this Court; now the State urges that there should be a reference to a fuller bench because the principles laid down in those Divisional Bench judgments are not in accordance with the ones followed by the High Courts including the Madhya Pradesh in State v. Shambhudaya) AIR 1957 Madh Pra 17. Out of the judgments sought to be placed for reconsideration before a fuller Bench the one in State v. Narendrakumar Cri. Appeal No. 421 of 1963, decided at Indore on 25th of September 1964 (MP) is typical: so that alone need be considered here. It was held there that in the circumstances of that case it would not be proper to raise the presumption contained in Section 6, because there was nothing to indicate that the authority issuing the warrant (who was the Superintendent of Police of that District) had really been ' satisfied ' or ' had reason to believe' that the house was being used for the said purpose Accordingly those State appeals were dismissed and the orders of acquittal, both of the house-owner and of the persons found there, by the Magistrate were confirmed.
3. The basic position taken by the State here is that the credibility of the information or the satisfaction or the reason to believe is a matter solely for the authority issuing the warrant, and the mental situation is wholly subjective and that the Courts cannot investigate what the reason to believe was, whether It was credible, and whether the satisfaction was reasonable or otherwise. The argument in fact is, the moment the authority designated under Section 5 issues the warrant it should be conclusively presumed that the information was credible and that it had reason to believe, the principle being that official acts should always be presumed to have been properly done. It was incidentally urged that the source of the information need not be divulged and that the courts cannot ask to be told what it was and why the authority believed it. All this is sought to be derived from a number of rulings such as State v. Abdulgafar AIR 1956 Bom 420, AIR 1957 Madh Pra 17 and Netram v. State Madh BLR 1955 (Cri) 164. The first two are judgments by Divisional Benches and the third by a Single Bench. Similar earlier rulings have also been cited; but the ground being covered by these three comparatively recent ones it is unnecessarv to go into them.
4. When a person is convicted under the first or the second sub-section of Section 4 of the Madhya Pradesh Gambling Act (or the corresponding though differently numbered sections of the corresponding Acts in force else where) the bases may be one of the two; first. on facts proved by evidence, namely, that the witnesses have actually seen the owner or the occupier of the house letting people gamble and himself collecting a commission on their takings, or the persons who had collected there had been gambling, staking money on a game of pure chance, and out of the gains paying a commission to the owner or occupier of the house In such event the position is simple and there would be no need either to invoke the presumption contained in Section 6, or apropos of the presumption, to examine the validity or otherwise of the warrant issued under Section 5. Such a case would depend wholly on facts. But in a large number, if not in most, of gambling cases before the courts the basis would not be such straight factual evidence, for the simple reason that this sort of gambling is done with a certain amount of privacy and concealment. Often the prosecution case is based solely, or for the most part, on the presumption that a warrant having been issued under Section 5 and a search having been conducted in execution of the same, and 'cards, dies, gaming table or other instruments of gaming' having been found there, the place is presumed to be used as a common gaming house and that the persons found there were there present for the purposes of gaming although no play was actually seen by the police officer or any of his assistants At all events in view of the factual findings this is the situation in the instant case as it was in Criminal Appeal No 421 of 1963 (MP) (supra). Thus it becomes very necessary for the Court to be satisfied that the warrant issued under Section 5 was a valid one and there had been really 'reason to believe' and that the authority did think about it and came to believe it.
5. In this connection the phrases 'has reason to believe' 'has credible information' or 'is satisfied' are substantially of the same purport. In one in the other form this idea is found not only in Section 5 of the Gambling Act, but in various other enactments, Section 54 of the Criminal Procedure Code being a typical instance. This is found in excise cases as well. It is also in the Defence of India Acts; but it to not safe to apply the interpretation given by Courts to emergency provisions to cases like those of gambling, excise or search by the police under the Criminal Procedure Code. In their regard, it can on one hand be contended legitimately that the 'satisfaction' or the 'credence' or the 'reason to believe' is subjective, that is the state of mind on the part of the officer concerned; on the other, it can be urged with equal plausibility that the Courts should at all events be answered on the record that the person issuing the warrant has applied his mind to the material before him and has at least thought of the matter, and has not mechanically signed a warrant already made out by, somebody else and placed before him just for his imprimatur. The proper interpretation of the section would be something which reconciles these two approaches, which as I shall presently show is not only plausible, but the only way on the one hand of preventing the raising of the presumption in Section 6 as a matter of course, and on the other of the authority not being hampered or frustrated by an attempt of the Courts to 'sit in judgment over the issue of warrant itself and to enquire whether the authority was justified or not' (vide AIR 1956 Bom 420 (Supra) ).
6. In support of the theory that the moment a warrant is issued Courts have to accept that there is 'credible information' or 'reason to believe' or 'reasonable satisfaction,' learned Government Advocate has cited the following: The passage in AIR 1956 Bom 420 (supra) which has already been cited and followed by the Divisional Bench in Narendra kumar's case, Cri Appeal No 421 of 1963 D/-25-9-1964 (MP) (supra) Further, AIR 1957 Madh Pra 17 (supra) The wording in the corresponding section of the Madhya Bharat Act (also numbered 5) was 'credible information' which as already noted has the same connotation as 'reason to believe.'
'By 'credible information' is not meant information which is in fact true. That word used in Section 5 of the Madhya Bharat Gambling Act has the same meaning as is giver in Section 54 of the Criminal Procedure Code and includes any information which in the judgment of the officer to whom it is given appears entitled to credit in the particular instance. It has reference to the mental condition of the person receiving the information.' .
The third case is also one under the Madhya Bharat Act, where the words 'credible information' are used:
'It is not necessary for a' Sub-Inspector of Police to disclose the source of his information, nor the material to satisfy the Court that he had credible information. Drawing memo of proceedings, sending a punter, effecting raid, making recovery show that he was satisfied about the credible information that the place was being used as a common gaming-house.'
The situation in the last case was substantially different from that of the present one as also the Bombay and the Madhya Pradesh Cases. In the Madhya Bharat case, the police having taken the warrant and before effecting the search sent a spy or what in these parts they call a 'punter'. He went and paid the money to the keeper of the house and got a note to the effect that the particular person (the punter) had placed a sum of money on the particular figure for American Futures. After he returned and showed the paper, the police made a raid. In other words, the information on which the warrant had been drawn out had thus been verified before the actual search; whether or not it could have been considered 'credible' at the time of the signing of the warrant, the verification before its execution certainly made it 'credible' or to use the language of the present Act, 'gave reason to the officer to believe' that the house was a common gaming house. But in the other cases there was no such verification.
7. It is convenient to repeat what had happened in the instant case as also in Narendrakumar's case Cri Appeal No. 421 of 1963 D/- 25-9-1964 (MP) and the others of that batch. The police officer stated that an informer had told him that such and such place was being used as a gaming house and that people were collecting there and were gambling. Certainly, the informer's name was not given and it has not been suggested that it should be given if the police officer wants to keep it secret. The officer wrote a report to the Superintendent of Police stating that an informer had told him such and such and praying for an issue of warrant under Section 5. In the instant case it was sent by a messenger; but in some other cases the officer who had heard from the informer had taken the letter himself. In anticipation of the Superintendent's issue of the warrant they had taken the printed form filled in with the names with just a 'dotted line' ready for his signature as the authority competent to issue a warrant. The latter put the signature and issued the warrant and did not, as the papers and the evidence show, feel, the least curiosity about seeing either the information of the Sub-Inspector, or when that officer was himself talking to the latter putting any question to him. The whole process was mechanical.
8. There is no doubt that Courts should not insist upon the information being proved as true. To say that it is 'credible'' or that the authority 'has reason to believe' or 'is satisfied' is certainly not to guarantee its truth; nor does the said judgment require it Very often people with ordinary prudence and caution believe things that turn out to be incorrect on further enlightenment. But these phrases do imply a degree of plausibility. Certainly, there is a subjective element; but to say that is not the same as to assert that things can be done mechanically and then the Courts told that it is not their business to ask if there was any mental impression at all. If. for example, a person who has actually seen the gambling comes and tells the authority, and the latter from his demeanour and speech thinks there is something in it, the Courts will not put any question. Similarly, if a neighbour of the house comes and reports of noises indicating that gambling is going on, then also there would be no difficulty before the Courts. If an officer himself during his movements in the locality has seen people going there who are known to be gamblers by their previous conduct, and comes to believe that gambling is in progress, then also we can say that it is 'credible information' or he is 'reasonably satisfied.' Nobody suggests that the informer or informant should be called as a witness or should be named on the warrant. Nor is any test laid down that the information should stand judicial scrutiny. The process' is no doubt subjective; but there should be some indication that the authority issuing the warrant has thought what was placed before it and has not signed the dotted line just because somebody wanted it. In these cases the authority just signed a paper because the Sub-Inspector wrote that somebody else had come and reported' to him. This is really third-hand and something like an application of mind on the part of the authority was necessary.
9. This takes us to the question whether any inquiry and if so, of what kind should be conducted. An inquiry is not mandatory; nor has statute suggested a procedure even where the authority thinks it useful. By the very nature of the case to provide for such would be to defeat the very purpose of the enactment because the warrant would have to be issued quickly and with minimum publicity. On the other hand, the authority may have to satisfy himself by putting questions either to his subordinates or to the informant if he is an outsider to his department. The very putting of the questions is an inquiry. Using the word in its general meaning all that the authority is expected to do is to think of the matter, and decide quickly whether the information has that degree of plausibility as would justify the issue of the warrant. Courts will not invest gate the soundness or otherwise of this decision, if there is a clear indication that the authority had thought of the matter and was then satisfied that the information conveyed to him was what a reasonable and prudent person would believe. Courts cannot even ask for the name of the informant if there is one because that is already protected under the Evidence Act. But they should certainly expect that in a matter like this things are not done mechanically In fact, the Division Bench judgment in Narendra Kumar's case does not conflict with the ones cited by the learned Government Advocate. In a few places the word 'evidence' has been used in the sense of the 'information' before the authority; but the context is such as to lead to no misunderstanding
10. The foregoing applies only to cases where the presumption has to be raised. If it is a matter of evidence, then the position would be different and the case should be disposed of on its factual merits. The validity of the warrant under Section 5 is vital because persons who may be quite innocent are by the very issue of the warrant called upon under threat of a presumption to show the negative, that is, their houses are not being used as gaming houses and the pack of cards and the table or cloth or the like is not being actually used as an instrument of gaming, and those who have collected in the house have not come there for the purpose of gambling on the condition of their paying the owner or the occupier of the house a commission on their takings These are serious implications; but statute having imposed them, Courts will certainly apply them. But this is subject Ho their being satisfied that the warrant which raises these presumptions has itself been properly issued. For that the test is not the truth or provability of the information, but a dear indication that the authority issuing the warrant had at least thought of the matter, and had acted on what on the face of it was plausible and not merely put a mechanical signature on the basis of a second-hand or a third-hand report.
11. The result of the discussion is that the instant case is covered by the principles laid down in the judgment of Criminal Appeal No. 421 of 1963 (MP). There is no justification for a reference to a fuller Bench because the principles laid down in that judgment are really not in conflict with the rulings either of this High Court or of others in similar cases
12. The State appeal is dismissed