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Sindhi Fatandas Chimanlal and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1960)1GLR110
AppellantSindhi Fatandas Chimanlal and ors.
RespondentState
Cases ReferredMani Ram and Ors. v. State
Excerpt:
.....and relying on the evidence that applicant no. state 1954 criminal law journal 1209. 3. common gaming house' is defined in section 3 of the act, section 4 of the act punishes certain persons like owners or occupiers of a common gaming house and persons who have the care or management of a common gaming house. under section 7 of the act, when any instrument of gaming has been seized in any house, room or place entered under section 6 or about the persons 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 ground 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..........easy to rebutthe presumption that it is a common gaming house. in the instant case, although the place raided is what is known as swastik club, in view of the facts found at the time of the raid which are mentioned in paras 10 and 11 of the judgment of the learned magistrate, his view that presumption is not rebutted cannot be interferred with in revision.5. the last case relied on by the learned counsel in the case of mani ram and ors. v. state 1954 cri. law journal 1209, where, on the evidence, it has been held that the presumption was rebutted. as the raid was made two days before the diwali day when hindus indulge in gaming which is considered auspicous, it was held that there was no evidence to show that in that house gaming had taken place on any previous occasion, that it had.....
Judgment:

V.B. Raju, J.

1. This is a revision application by nine persons, who were convicted by the Judicial Magistrate, First Class. Junagadh under Sees. 4 and 5 of the Bombay Prevention of Gambling Act which will hereinafter be referred to as the Act. Application No. 1 Fatandas Chimanlal was convicted under Section 4 and the others under Section 5 of the Act. Holding that the conditions of Section 6 of the Act had been satisfied and relying on the evidence that applicant No. 1 was the Secretary of the Club known as 'Swastik Club'' in respect of which warrant had been issued, the learned Magistrate convicted that application No. 1 under Section 4 and he convicted the other under Section 5 of the Gambling Act, because they were found in the house when the raid was conducted. In appeal the learned Sessions Judge confirmed the conviction, and hence this revision application.

2. In regard to applicant No. 1, it has been contended that he was not present at the time of the raid, that there was no proof that the was living in the premises and that as he was the Secretary of the Swastik Club, he cannot be convicted under Section 4 of the Act, which it is contended does not apply to clubs. As regards the other applications, it is contended that at the time of the raid admittedly gaming was not going on in the premises and that therefore the conviction of the other applicants under Section 5 of the Act is improper. It is also conteded that the presumption has been rebutted because he club was a registered club Reliance has been placed by the Learned Counsel for the applicants on the following cases : (1) Mohd. Dawood v. Emperor A.I.R. 1948 Bombay 67; (2) Emperor v. Kallappa Gurappa A.I.R. 1939 Bom. 481; (3) Ismail Varyo and Ors. v. Emperor A.I.R. 1934 Sind. 130 and (4) Mani Ram v. State 1954 Criminal Law Journal 1209.

3. 'Common gaming house' is defined in Section 3 of the Act, Section 4 of the Act punishes certain persons like owners or occupiers of a common gaming house and persons who have the care or management of a common gaming house. Section 5 punishes persons found in any common gaming house either gaming or present for the purpose of gaming. Under Section 7 of the Act, when any instrument of gaming has been seized in any house, room or place entered under Section 6 or about the persons 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 ground 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 any person acting under the authority of either of them.

4. In this case it has not been contended that the warrant is defective. The finding that instruments of gaming were found in the house at the time of the raid is also not challenged. Rebuttable presumption must therefore be drawn under Section 7 that the house was a common gaming house and therefore the burden of proving the contrary is on the accused. Under Section 7 of the Act, there is a presumption that the house in question was a common gaming house, but there is no presumption that any particular person was the owner or occupier of a comming gaming house. The Bombay case Mohd. Dawood v. Emperor A.I.R. 1948. Bombay 67, explains this position. The allegation of the prosecution that applicant No. 1 was the Secretary of the Swastik Club has been proved by evidence and is admitted. This fact, is not challenged in revision. To prove that applicant No. 1 was the Secretary of the house, which was known as Swastik Club, the prosecution did not rely on any presumption, but on actual evidence. This Sind case also does not help him because that was a case of defective warrant, while the instant case is not a case of defective or irregular warrant. The case of Emperor v. Kallappa Gurappa A.I.R. 1939 Bom. 481, was cited in support of the proposition that the presumption under Section 7 of the Act cannot be drawn in the case of Clubs. But such proposition has not been laid down in this Bombay Case. The case merely explains the distinction between a respectable Club and a common gaming house. The points of distinction are (1) that in the case of a respectable Club, it is open only to Members, and the second point of distinction is that in the case of a club, profit is not made by the owner or occupier of the premises. But, it is nowhere and down in this Bombay case that the presumption under Section 7 cannot be drawn or should not be drawn if a respectable Club is raided under a warrant issued under Section 6 of the Act. But, in the case of a respectable Club, it may be easy to rebutthe presumption that it is a common gaming house. In the instant case, although the place raided is what is known as Swastik Club, in view of the facts found at the time of the raid which are mentioned in Paras 10 and 11 of the judgment of the learned Magistrate, his view that presumption is not rebutted cannot be interferred with in revision.

5. The last case relied on by the Learned Counsel in the case of Mani Ram and Ors. v. State 1954 Cri. Law Journal 1209, where, on the evidence, it has been held that the presumption was rebutted. As the raid was made two days before the Diwali day when Hindus indulge in gaming which is considered auspicous, it was held that there was no evidence to show that in that house gaming had taken place on any previous occasion, that it had not been shown that the these circumstances were quite sufficient to rebut the presumption arising under Section 6. This case was therefore dealing with facts from which the presumption under Section 7 of the Act can be rebutted. In the said case the place was raided two days before the Diwali day, and playing cards are found, under the law a rettubable presumption under Section 7 of the Act would arise, but ordinarily it would be held that the presumption that the house was a common gaming house is easily rebutted, if the raid is conducted on such days as Diwali days. Therefore the case does not help the Learned Counsel for the applicants.

6. It is true that applicant I was not present at the house when it was raided, but in order to justify a conviction under Section 4 of the act it is not necessary to prove that the owner or occupier or the person who has the case or management of the house was present at the time of the raid. For a conviction under Section 4 of the Act, the prosecution has to prove (]) that a person opens, keps or uses any house, room or place for the purpose of a common gaming house; or (2) that being the owner or occupier of any such house, room or place he knowingly or wilfully permits the same to be opened, occupied, kept or used by any other person for the purpose aforesaid; or (3) that he has the care or management of, or in any manner assists in conducting the business of, any such house, room or place opened, occupied, kept or used for the purposes aforesaid. If any of these ingredients is proved, the persons would be guilty under Section 4 of the Act, although he was not present at the time of the raid. Where the presumption applies it is not necessary to prove that he receives 'nal' or makes any profit out of the gaming. There is therefore no merit in the contention of the Learned Counsel in regard to applicant No. 1.

7. As regards the other applicants also, it is contended that admittedly gaming was not going on at the time of the raid and that therefore the other applicants cannot be held to be guilty. For a conviction under Section 5 of the Act, it is not necessary that the person should be actually found gaming. A person who is present in a house for the purpose of gaming would be guilty under Section 5, even though none may be actually gaming at the time of the raid. In view of the presumption under Section 7, however, a person found in the house, room or place in question is presumed, unless the contrary is proved, to be present therein for the purpose of gaming, although no gaming was actually seen at the time of the raid. Section 7 even makes it clear that the presumption can be drawn, although gaming may not be actually seen. There is therefore no merit in the contention of the Learned Counsel for the applicants. The revision application is, therefore, dismissed.


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