N.G. Shelat, J.
1. Armed with a general order in writing issued by late Mr. Niranjan Das, Police Commissioner, Ahmedabad, under section 6(1) of the Bombay Prevention of Gambling Act, (hereinafter to be referred as 'the Act') Mr. Dharia, the P. S. I. Ahmedabad City, accompanied by the police officers and the panchas raided the house bearing No. 2375/B/3 Kalupur -- I at about 8-30 p. m. on 28th December 1964 in pursuance of some information received by him that it was used as a gaming house and that the accused and other persons were gaming or present for the purpose of gaming. Finding them gaming with cards and money, he made a panchnama in respect of all that was found there. He also searched those persons who were found gaming in cards and money. The complaint was then lodged against accused No. 1 for offences under sections 4 and 5 of the Bombay Prevention of Gambling Act, and under section 5 of the said Act against the remaining accused Nos. 2 to 9. The accused pleaded not guilty to the charges levelled against them. After considering the effect of the evidence, the learned Magistrate found accused Nos. 2 to 9 guilty for an offence under Section 5 of the Act and each one of them was sentenced to undergo rigorous imprisonment for one month and to pay afine of Ks. 500, or, in default, to suffer! further rigorous imprisonment for one month. Accused No. 1 was acquitted. Feeling dissatisfied with that order passed on 1-6-1965 by Mr. P. M. Mehta, City Magistrate, 2nd Court, Ahmedabad, the accused Nos. 2 to 9 have come in appeal before this Court.
2. Mr. Thakore, the learned advocate for the appellants, contends that the order of conviction of these appellants-accused is mainly based on the presumption raised under section 7 of the Act, inasmuch as the search was carried out under a general order issued in favour of Mr. Dharia by the Commissioner of Police, Ahmedabad, under Section 6(1) of the Act. That order was issued on 14th September 1964, and, according to him, at the date when this search was effected by Mr. Dharia, viz., on 28-12-64, Mr. Niranjan Das, the Commissioner of Police who had empowered him by a general order or authority under Section 6(1) of the Act was dead and that therefore, that authority cannot be said to continue on that day. Since the search effected under Section 6 of the Act was invalid, no presumption can be allowed to be raised against the accused-appellants under Section 7 of the Act. Now section 7 of the Act runs thus:--
'7. When any instrument of gaming has been seized in any house, room or place entered under Section 6 or about the person of any one found therein, and in the case of any other thing so seized if the court is satisfied that the Police Officer who entered such house, room 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 is proved, that such house, room or place is used as a common gaming-house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority of either of them.
Provided that the aforesaid presumption shall be made, notwithstanding any defect in the warrant or order in pursuance of which the house, room or place was entered under Section 6, if the Court considers the defect not to be a material one.'
As contemplated in the proviso thereto, if the defect is not material in respect of the warrant or order in pursuance of which house or room or place was entered under Section 6 of the Act, the Court can raise a presumption. In other words, if the authority under which Mr. Dharia acted in searching the premises in question, was invalid, the prosecution cannot avail of the presumption arising under Section 7 of the Act Now it appears from theevidence of the P. S. I. Mr. Dharia that Mr. Niranjan Das had died before this raid was effected on 28th December 1964 and after his death he did try to obtain a fresh general authority to carry out the raid at this particular place from where the accused were searched and arrested, but he could not get the same from Mr. Deboo, the Commissioner of Police, who succeeded late Mr. Niranjan Das. In fact he has also admitted 'that he could not raid the premises with the old warrant.' The general order which was issued in his favour by late Mr. Niranjan Das, the Commissioner of Police, under Section 6(1) of the Act automatically came to an end on the day he expired. It cannot continue after his death for the simple reason that the person who gave him such an authority was no more the Commissioner of Police. It may well be that the succeeding officer may not choose to issue any such general authority in favour of Mr. Dharia and in fact it had so happened in this case. The person who issues such a general authority has the power to withdraw the same at any time during his life time and, therefore, such an authority would continue upto the time it was not withdrawn, and at any rate only upto his death. In no case that authority can continue to exist beyond his death for he ceased to be the issuing authority under the Act. That authority, therefore, could not be utilised by P. S. I. Mr. Dharia in carrying out the raid of the premises in question, and more so, when the succeeding officer Mr. Deboo declined to give him any such general authority under Section 6(1) of the Act. He also realised that he could not raid the premises under that authority, and yet surprisingly he did so under the authority which was invalid in law. It puts an end to his power to search the premises under Section 6(1) and thus there is no question of the defect being not a material one. The proviso to Section 7 cannot be invoked for raising presumption under such an unauthorised act on the part of Mr. Dharia committed on 28-12-64 before which the issuing authority no longer was there, and someone else was the authority to issue it under Section 6(1) of the Act.
3. The search effected was thus unauthorised and invalid and consequently no effect can be given to the same as contemplated under Section 7 of the Act viz. to presume that the thing so seized was an instrument of gaming and that such house or place was used as a common gaming house and the persons present were there for the purpose of gaming until the contrary is proved.
4. Now from the judgment it appears that the learned Magistrate has raised a presumption arising out of any such raid effected by Mr. Dharia in pursuance of a general authority issued under section 6(1) of the Act and the appreciation of evidence in the case has been on that basis. No such presumption can at all arise as contemplated under Section 7 of the Act. It would therefore, be essential to appreciate the evidence on its own merits, and that can be best done by the trial Court, A similar view has been taken by Raju J. in an unreported decision of 15-7-1966 in Criminal Appeal Nos. 139 and 143 of 1965 (Guj). In the result, the decision based on such appreciation of evidence has to be set aside, and the case shall be sent back to the trial Court for disposal in accordance with law keeping in mind the observations made hereabove. 5. The order of conviction and sentence passed against the accused-appellant is set aside and the case is sent back for hearing and disposal in accordance with law keeping in mind the observations made hereabove.