1. The facts out of which this appeal arises are that the house occupied by the accused was searched by the police acting under Section 5(1) of the Madras Gaming Act on the night of 25th September, 1943, and a considerable quantity of betting slips, registers, telegrams, calculation sheets, etc., was seized. The accused was charged with keeping a common gaining house punishable under Section 8 of the Act, the particular form of wagering being what is known as the New York Cotton Speculation Business in which wagers were laid on the New York closing prices each day. The exact method followed does not appear in the evidence, but a detailed description of the modus operandi is to be found at pages 976 and 977 of the report in Ram Pralap Nemani v. Emperor I.L.R. (1912) Cal. 968. The accused was acquitted and in this appeal by the Crown against the acquittal the only point which arises for decision is whether ' gaming ' as defined in Section 3 of the Madras Gaming Act includes wagering or betting.
2. Gaming is defined in Section 3 of the Act in these words:
Gaming does not include a lottery, but includes wagering or betting on a horse-race except when such wagering or betting takes place,--
1. On the date on which such race is to be run; and
2. In a place or places within the race enclosure which the authority controlling such race has with the sanction of the Provincial Government set apart for the purpose.
On behalf of the accused Mr. K.S. Jayarama Aiyar contends that gaming is not betting or wagering, and that as it has been defined in the Act as including wagering or betting on a horse-race only under certain limited conditions his client cannot be convicted of keeping a common gaming house where there was wagering or betting on events other than a horse-race. In the Oxford English Dictionary gaming is defined as:
The action or habit of playing at games of chance for stakes; gambling.
Sir William Anson's definition of a wager or bet is:
A promise to give money or money's worth upon the determination or ascertainment of an uncertain event.
The principal distinction between gaming and betting or wagering is thus immediately apparent; in gaming the stake Is laid by the players upon a game, the result of which may depend to some extent upon the skill of the players; but in a bet or wager the winning or losing of the stake depends solely upon the happening of an uncertain event. In Ram Pratap Nemani v. Emperor I.L.R. (1912) Cal. 968, the learned Judges gave the following definitions:
Gaming is playing at any game, sport, pastime or exercise, lawful or unlawful; for money or any other valuable thing, which is staked on the result of the game, i.e., which is to be lost or won according to the success or failure of the person who has staked. Reg v. Ashton (1852) 1 El. & BI. 286 and Lackwood. Cooper. (1903) 2 K.B 428 Wagering which includes betting is making a contract on an unascertained event past or future (in which the parties have no pecuniary interest other than that created by the contract) by which the parties are to gain or lose according as the uncertainty is determined one way or the other. Carlill v. The Carbolic Smoke Ball Co. (1892) 2 Q.B. 484.
This decision is of particular interest in the present ease because it arises out of almost identical facts on which persons had been charged under Section 44 of the Calcutta Police Act for keeping a common gaming house. In that Act no definition of ' gaming ' was attempted, and the learned Judges held that this form of speculation in cotton prices was ' betting pure and simple ' which did not come within the accepted meaning of the term ' gaming.' This decision was in 1912 and in 1913 the Act was amended and the following definition of 'gaming ' included:
'gaming' includes wagering or betting (except wagering or betting upon a horse-race, when such wagering or betting takes place--(a) on the date on which such race is to be run, and (b) in an enclosure which the Stewards controlling such race lave, with the sanction of the Local Government, set apart for the purpose), but does not include a lottery.
3. The corresponding amendment of the Madras City Police Act was not effected until 1941, prior to which the definition was identical with that still contained in Section 3 of the Madras Gaming Act. In 1941, the following definition was substituted:
'Gaming ' does not include a lottery but includes wagering or betting except wagering or betting on a horse-race when such wagering or betting takes place--
(1) On the date on which such race is to be run, and
(2) In a place or places within the race enclosure which the authority controlling such race has with the sanction of the Provincial Government set apart for the purpose.
4. For the purposes of this definition, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise, in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution.
5. That gaming does not include betting appears also from the decision in Koop v. Stevens 100 Law Times Rep. 491. In that case the accused had been convicted under Section 17 of the Licensing Act, 1872, which is in these words:
If any licensed person--(1) suffers any gaming or any unlawful game to be carried on on his premises; or (2) opens, keeps, or uses, or suffers his house to be opened,kept, or used in contravention of the Act of the session of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and nineteen intituled : 'An Act for the suppression of betting bouses' (that is, the Betting Act, 1853) he shall be liable to a penalty not exceeding for the first offence ten pounds and not exceeding for the second and any subsequent offence twenty pounds.
It was held that betting on horse-races was not ' gaming' within the meaning of Section 17, Sub-section 1 of the Licensing Act, and that a licensed person who merely allows bets on horse-races to be made in his licensed premises does not ' suffer gaming to be carried on on his premises ' within the meaning of that sub-section.
6. There is ample authority that gaming as at present defined in Section 3 of the Act does not include wagering or betting and it follows that the accused cannot be convicted under Section 8 read with Section 3 of the Madras Gaming Act, 1930.
7. In the result the appeal against the acquittal of the accused is dismissed.