1. This is a recommendation made by the First Additional Sessions Judge of Delhi, dated 27-2-1953, recommending that the conviction of the petitioner Mool Chand be set aside.
2. A warrant was issued under Section 5, Public Gambling Act by Superintendent of Police Pandit Jagan Nath and the house of the petitioner Mul Chand was raided on 10-8-1952 in pursuance of this warrant by Sub-Inspector Damodar Das and a sum of Rs. 43/4/6 was recovered from the petitioner.
Mul Chand was prosecuted under Section 3, Public Gambling Act for keeping a common gaming house and on his conviction was sentenced to a fine of Rs. 100/- and in default rigorous imprisonment for three weeks. He took a revision to the Sessions Judge who has made the recommendation for setting aside the petitioner's conviction.
3. The matter was placed before the Hon'ble the Chief Justice on 11-11-1953 and on finding that there was conflict of opinion in this Court he has referred this case to a Division Bench.
4. Under Section 1, Police Act Superintendent of Police Pandit Jagan Nath has been invested with powers of a District Superintendent of Police by Notification No. P 6 (24) /56 -- Home dated 2-2-1950 which runs as follows:
'No. P. 5 (24)/56-Home: Under powers conferred under Section 1 of the Indian Police Act 1861, the Chief Commissioner of Delhi is pleased to invest the Superintendent of Police, Delhi City, New Delhi, and Rural with powers of District Superintendent of Police to issue warrants under Section 5 of the Public Gambling Act, 1867.'
Section 1, Police Act provides:
'District Superintendent of Police shall include any Assistant District Superintendent or other person appointed by general or special order of the State Government to perform all or any of the duties of a District Superintendent of Police under this Act in any district.'
and the duties of a Police officer are given in Section 23 which provides;
'23. It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to Justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists; and it shall be lawful for every police officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking shop, gaming house or other place of resort of loose and disorderly characters.'
Section 5, Public Gambling Act confers on the police the power to enter and search any premises mentioned in the warrant. The section reads as under:
'5. If the Magistrate of a district or other officer invested with the full power of a Magistrate or the District Superintendent of Police, upon credible information, and after such enquiry as he may think necessary has reason to believe that any house, walled enclosure, room or place is used as a common gaming house, he may either himself enter, or by his warrant authorise any officer of police, not below such rank as the (Provincial Government) shall, appoint in this behalf to enter with such assistance as may be found necessary, by night or by day, and by force if necessary and such house, walled enclosure, room or place.
and may either himself take into custody or authorise such officer to take into custody all persons whom he or such officer finds therein, whether or not then actually gaming,
and may seize or authorise such officer to seize all Instruments of gaming, and all moneys and securities for money, and articles of value, reasonably suspected to have been used or Intended to be used for the purpose of gaming which are found therein;
and may search or authorise such officer to search all parts of the house, walled enclosure, room, or place which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein, and also the persons of those whom he or such officer so takes into custody.
and may seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search.'
5. The question to be decided is whether the words in Section 23 'to detect and bring offenders to justice' are wide enough to include the power to issue a warrant. In Cri Revn. No. 80-D of 1953 (Punj) (A) Falshaw J. had occasion to deal with this matter and he was of the opinion that the words were wide enough to cover the issuing of a warrant and the learned Judge therefore observed :
'It is obviously a general duty of the Police under the Act to enforce not only the Indian Penal Code but also all the various special Acts relating to offences such as the Public Gambling Act; and where in any particular Act the District Superintendent of Police is given certain powers I cannot see anything at all to prevent the Chief Commissioner under the relevant portion of Section 1 of the Police Act from investing in a particular police officer powers of a District Superintendent of Police for the purpose of that particular Act. In fact in my opinion this was what the provision in Section 1 is intended for.'
The Hon'ble the Chief Justice on a case being stated to him by Mr. Gurdev Singh in Cri. Revn. No. 61-D of 1953 (Punj) (B) agreed with the recommendation that the Chief Commissioner had not the power to issue such a notification.
6. As I read the provisions of the various sections I am of the opinion that there Is nothing wrong or illegal in the power which was given by the Chief Commissioner. In Section 1 of the Police Act the Distt. Superintendent of Police so appointed by a State Government is to perform all or any of the duties of a Distt. Superintendent of Police under the Police Act in any district and as I have said Section 23 gives the police the power to detect and bring offenders to justice and it cannot be said that the power to detect and bring offenders to justice should be circumscribed to offences which come only under the Penal Code. This will be too narrow an interpretation and not justified by the wording of the section.
I respectfully agree with the view taken by my brother Palshaw J. and with due deference we are unable to agree with the view of the Hon'ble the Chief Justice as the provisions of Section 23, Police Act do not seem to have been brought to his notice.
7. The next point which arises in this case is whether there is sufficient evidence for the conviction of the petitioner. After going through the record we find there Is not sufficient evidence and ordinarily we would have been reluctant to go into the question of law in view of the findings on questions of fact, but the matter having been referred to us we are constrained to five the opinion as to the legality of the notification. The recommendation is accepted on the point of there being no evidence to support the conviction. The rule is there made absolute and the petitioner acquitted. The fine, if paid, shall be refunded.
8. I agree.