1. Narsing along with seven others was convicted on a summary trial under Section 4, Gambling Act by the learned Municipal Magistrate, Indore, for an offence under the Gambling Act and sentenced to one month's simple imprisonment and a fine of Rs. 200/- each. Soniram who was accused No. 4 was further convicted under Section 3, Gambling Act, and sentenced to one month's simple imprisonment and a fine of Rs. 200/- for that offence. Both the sentences of imprisonment were to run concurrently in his case. An appeal preferred by them to the Sessions Judge of Indore was dismissed; hence this revision application.
2. The material facts lie within a short compass: On the night of the last Diwali festival Sub-Inspector Chaturbhuj of Police Station Bada Sarafa received information that gambling was going on in a certain house in his circle. He satisfied himself as to the correctness of the information received and raided the house. He took with him besides others, Head Constable Balmukund and two Panchas who appear to have been picked up by him on the way. They reached the house in question whereof the exit door was found open. On the first floor they found the eight accused in a closed room. It is alleged that they peeped through a chink in the door and found the accused gambling with playing cards. They were stated to be playing a game of Mang Patta. The Sub-Inspector got the door opened. The raiding party according to the evidence of the prosecution witnesses permitted its members to be searched before entering the room. When the room was searched by the Police a pack of playing cards (52 in number) and a sum of Rs. 77-14-9 were recovered. Some change was found lying in front of the persons who were taking part in the game. It has also come out in the evidence that actually only six persons (excluding Narsing and Chhagan) were taking part in the game. Narsingh was asleep and Chhagan was sitting apart. The petitioners were accordingly challaned, tried and convicted as already stated. Their defence that they were playing a game of Chhakdi and not Mang Patta, was rejected by the Courts below, mainly in view of the presumption that arises in Gambling Act cases under Section 6.
3. It was contended by the learned Counsel for the petitioners that this was not a case in which the presumption under Section 6 ought to have been raised. He argued that it was a mis-appreciation of the true import of that section and a mis-application of its provisions which has resulted in the petitioners' conviction.
4. Having considered the argument carefully I have come to the conclusion that this revision application should succeed. Madhya Bharat Gambling Act, No. 51 of 1949 can by no means be said to be model of skilful draftsmanship. Keeping of a gaming house and gaming houses are offences punishable under the said Act. Under Section 4, whoever is found in any gaming house, gaming or present for the purpose of gaining is liable to punishment. Section 6 embodies a rule of evidence. It runs as follows:
When any, instrument of gaming has been seized in any house, room, tent, enclosure, Space, vehicle, vessel or place entered or searched under the provisions of the last preceding section or about the person of any of those who are found therein and in the case of any other thing so seized, if the Court is satisfied that the Officer who entered or searched such house, room, tent, enclosure, space, vehicle, vessel or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary be made to appear that such house, tent, enclosure, space, vehicle, vessel or place is used as a gaming house and that the persons found therein were then present for the purpose of gaming although no gaming was actually seen by the Magistrate or Police Officer.
5. It will be seen that if the court is satisfied that the Officer who entered or searched such house, room etc. had reasonable grounds for suspecting that the thing so seized was an instrument of gaming the seizure of such an instrument or thing shall be the evidence, until contrary is made to appear, that such house, room etc. was used as a gaming house and that the persons found therein were then present for the purpose of gaming although no game was seen by the Magistrate or the Police Officer. The section thus makes the fact of seizure of a thing which the officer concerned had reasonable grounds for suspecting to be an instrument of gaming evidence of the place being used as a gaming house and that the persons found therein were then present for the purpose of gaining. A careful examination of this not very felicitously worded section presents the following elements for consideration;
1. Under it, the seizure of a thing is evidence of, (a) that the place is used for gaming house, (b) that the persons found therein were then present for the purpose of gaming, although no game was seen either by the Magistrate or the Police Officer.
2. The seizure of a thing will be evidence of facts mentioned above until the contrary is made to appear.
3. The seizure of a thing shall be evidence of facts mentioned above only if the Court is satisfied that the Officer concerned had reasonable ground for suspecting that the thing so seized was an instrument of gaming.
6. Accordingly before the seizure of the thing can be relied on as evidence of any fact under the section the court must be satisfied that the Officer concerned had reasonable grounds for suspecting that the thing so seized was an Instrument of gaming.
7. Before I proceed further, I should like to make it clear that though Sub-Inspector Chaturbhuj stated in evidence that the six of the accused were playing a game of Mang Patta he admitted in cross-examination that he did not know how Mang Patta is played. Naturally, in these circumstances, his evidence as to the nature of the game that was being played cannot be of much assistance. We should not in the circumstances of a case like the present forget that it was a Diwali night. It is well known that numerous Hindus indulge in gambling on this night as a mark of observance of this national festival. At the same time, we should not readily Jump to the conclusion that wherever a few friends are playing a game of cards on Diwali night they are gambling and thus make themselves liable under the provisions of the Act. We further find that Head Constable Balmukund went further than Sub-Inspector Chaturbhuj and actually stated that the accused were gambling with playing cards for money. He could naturally throw no light on what kind of game they were playing and how he inferred that they were gambling for money.
8. It is an elementary principle of our criminal Law that every person shall be presumed to be innocent till he is proved guilty. The presumption to which Section 6 may give rise takes a line which is contrary to the general principle referred to above. In applying this presumption, care should however be taken that the general principle of the innocence of the accused person is negatived only to the extent provided by the Law and no further. As the language used in framing Section 6 is very general, it is of the utmost importance that the provisions of the section should be applied with great care and discrimination. We should not lose sight of the expression 'the seizure of such an instrument or thing 'shall be evidence' 'until contrary 'be made to appear' '. It necessarily follows that if the contrary be made to appear which is clear and distinguishable from saying that until the contrary is proved - the presumption referred to in the section ought not to be raised. It is further necessary to justify the raising of presumption under that section that the Court must be satisfied that the Officer concerned had reasonable grounds for suspecting that the things so seized were instruments of gaming. The law enjoins that the Court should before raising any presumption satisfy itself that the Officer concerned had reasonable grounds for suspecting that the thing seized by him was an instrument of gaming. If the Court is not satisfied on this point, there is no room for any presumption under the section.
The question therefore arises how is the Court to satisfy itself whether reasonable grounds existed for the Officer concerned to suspect that the thing seized by him was an instrument of gaming. This can be done only on the material placed before the court by the prosecution. It is the duty of the Officer concerned either by his own evidence or in some other way to place before the court material which would enable it to satisfy itself whether reasonable grounds existed for his suspicion. The thing seized in the present case was a pack of cards and monies found with the different accused. Both these articles may be used as instruments of gaming or for innocent and lawful purposes. This was a night of festivity. A national Hindu festival was being observed. Possession of a sum of Rs. 77-14-9 by the eight petitioners on such a night can therefore be no reasonable ground for suspecting that the money was used or was intended to be used for any illegitimate purpose. The same may be said about a pack of cards. It has come out in the evidence of Head Constable Balmukund that from what he saw in the room he could infer that Laxmi Pooja had been performed there. If this was so, it is not at all surprising that some of Narsing's friends may have collected there for the Pooja and afterwards decided to spend the night playing at cards.
The only material placed by Sub-Inspector Chaturbhuj before the court to satisfy it that, there were reasonable grounds for his suspecting that the cards and the monies recovered were instruments of gaming was that he had received information from an informer that gambling was going on in that house and that he had satisfied himself that this information was correct. This material is of too indefinite a character to enable the court to form any opinion as to whether there did or did not exist reasonable grounds for suspecting that the playing cards and the monies found in the room were used as instruments of gaming. What the Law requires is not a mere suspicion on the part of the Officer concerned that a thing seized was an instrument of gaming but it further insists that before a presumption is raised under Section 6 a court should satisfy itself that there were reasonable grounds for the Officer to suspect that the thing seized was an instrument of gaming. So long us there is not sufficient material for the Court to satisfy itself on that point no presumption could arise. Sub-Inspector Chaturbhuj was asked if he could name his informer and he declined to do so. How he satisfied himself that the information given to him by his informer is correct was not disclosed by him.
9. It will further be noted that under the Law as it stands the Court before it raises a presumption has not only to examine the material placed before it by the prosecution to enable it to satisfy itself with regard to the existence of reasonable grounds for the Officer concerned suspicion that a thing seized by him is an instrument of gaming. It has further to consider whether there is any material or circumstances from which it appears that no such reasonable grounds existed for the suspicion of the Officer-concerned. The law does not require the accused 'to prove' that there were no reasonable grounds for the suspicion of the Officer concerned. It is sufficient if he is able to place before the Court a material or circumstances from which 'it appears' that reasonable grounds did not exist for suspecting that the thing seized was an instrument of gaming no presumption can arise.
10. Having carefully considered the judgments of the courts below I have come to the conclusion that the true meaning of Section 6 was not fully appreciated in those courts. Merely because a pack of cards and some money was recovered from the room in which the accused were found a ready assumption was made that they were gambling. Not improbably the courts below were mainly influenced in coming to that conclusion because it was Diwali night on which the house of Narsingh was raided.
11. The learned Sessions Judge has rejected the plea raised on behalf of the accused that they were playing an innocent game of cards on two grounds (1) that all the accused did not unanimously state that they were playing a game of Chhakdi and (2) if they were playing a game of Chhakdi four TWOS of the pack of cards should have been found separate from the rest. No question appears to have been put to any of the witnesses with regard to the last mentioned point. As regards the other point, it is sufficient to say that on being challaned in a criminal case every accused puts forward what he considers his best defence and the fact that some of the accused in the present case did not state that they were playing a gome a Chhakddi should affect the accused who gave that explanation. Courts should not in dealing with such cases lose sight of the provisions of Section 15 of the Act under which the Magistrate trying the case may direct any portion of the fine which shall be levied under Sections 3 and 4 of this Act, or any part of the money or proceeds of articles seized and ordered to be for feinted under this Act to be paid to an informer. In many cases this may be a temptation to be informers to give information which is not necessarily true. This is yet another reason why the presumption under Section 6 should be raised after carefully considering the entire material on the record. I am clear that in this case the prosecution did not place before the Court any material on which it could satisfy itself that there were reasonable grounds the pack of cards and the money seized by him in the room which he raided were used as instruments of gaming. If no presumption under that section is raised the evidence that the accused were gambling falls far short of the standard necessary to satisfy a reasonable man that the accused were guilty of the offence with which they were charged.
12. The result therefore is that the revision application is allowed. The conviction of the petitioners and the sentences passed upon them are set aside. They are on ball and need not surrender thereto. The fine if paid shall be refunded.