1. The Inspector of Police, Ponneri, who was examined as P.W. 1 in this case, obtained a warrant from the Deputy Superintendent of Police under Section 5 (i) of the Madras Gaming Act (III of 1930) to search the house belonging to the 1st and the 2nd accused. He went to that house and saw two persons lying inside the door and others busy writing something. He posted a constable and a bus conductor to see that nobody ran away and went to the front of the house. There he found the first and the 3rd accused keeping watch. He knocked on the door and it was opened by the 2nd accused after the 1st and the 3rd accused had called to those inside. The Inspector entered the house and found accused 6 and 9 lying down on the pial while others were busy writing slips of paper. He made a search and amongst other things found a large number of papers of various kinds relating to the business of betting on horse racing. He made out a charge sheet, and on his evidence the Stationary Sub-Magistrate of Ponneri has found the 1st and the 2nd accused guilty under Section 4 (i) and accused 4 to 19 guilty under Section 9 of Madras Act III of 1930. All the convicted accused have filed this revision petition.
2. The principal point argued in this petition is whether the house that was searched and raided was a 'common gaming house' within the meaning of the definition found in Section 3 of that Act. The main part of the section no doubt reads as if it did not apply to horse racing, because it refers to a 'room or place in which cards, dice, tables or other instruments of gaming are kept or used'; such expressions being hardly applicable to the slips drawn up in connection with betting on horse racing. But the second paragraph of that section, which is found only in this Act of 1930 says, that 'gaming... includes wagering or betting on a horse race...' That being so, one must conclude that a house in which wagering or betting on horse race takes place is a common gaming house.
3. The objection to the above conclusion is the wording of Sections 4 (i) and 4 (ii) which undoubtedly does suggest that Section 4 was intended to deal with gaming on a horse race alone thus suggesting that the rest of the Act applied to gaming other than gaming on horse races. The learned Public Prosecutor has however pointed out that it is not necessary to draw this conclusion. Section 4(ii) makes liable to punishment any person found gaming on a horse race, the wording of this sub-section being entirely different from that of any other provision of the Act dealing with gaming in general. Section 4 (i) is worded very much the same as Section 8, and it has therefore been argued that if Section 8 applied to horse racing also, Section 4 (i) would be redundant; but, for some reason not very clear, the punishment awarded in Section 4 (i) is different from that for gaming in general under Section 8. It cannot be said therefore that the wording of Sections 4 (i). and 4 (ii) makes it impossible to apply the definition of a common gaming house to a house in which wagering or betting on a horse race takes place. The apparent reason for this difficulty in construing the Act as a whole arises from the fact that Act III of 1930 is based on an older Act of 1890, the wording of which has to a great extent been embodied in Act III of 1930, insufficient care having been taken in the grafting of the new provisions on to the old Act.
4. The importance of the point whether a 'common gaming house' can be applied to a house in which betting on horse racing takes place relates to Section 6, for under that section 'cards, dice, gaming table or cloth, board or other instruments of gaming' are evidence that such place is used as a common gaming house; so that if the house in question was a common gaming house, the mere fact that papers relating to horse racing were found inside would in itself be evidence that the house was being used as a common gaming house and that all the persons found therein were present for the purpose of gaming.
5. It is argued on the authority of Benoy Krishna Roy v. Emperor : AIR1941Cal32 ., that the mere fact that certain papers relating to horse racing were found inside the house in question is not sufficient, even if we make use of Section 6 of Act III of 1930, to warrant a conclusion that the house was used as a common gaming house. In the present case a large variety of papers were found in the house relating to horse racing and, above that, a number of persons were found actually making betting calculations. It is possible to conceive of cases where a person may have a common gaming house in one place and then take to his private house certain books when the day's proceedings are over. In such a case his private house would not be a common gaming house; but in the present case all the circumstances point to the fact that this house was used as a common gaming house. It is of course possible, as has been argued, that the betting actually took place somewhere else and that the slips and other papers were taken away to the house searched after the business was over and that the only purpose for which the house itself was used was for calculating the results of the bets and determining to whom money was due. I think it however more reasonable to draw the conclusion the learned Magistrate did, especially in view of the provisions of Section 6, which enables a Court to take as evidence of a building being a common gaming house the mere fact that the paraphernalia of betting were found in it. There is no evidence which points to or suggests a contrary conclusion.
6. The facts found by the lower Court were that the 1st and the 2nd accused were keeping a common gaming house and that the petitioners were in that house for the purpose of gaming. So far as the 1st and the 2nd accused are concerned, there can be no doubt that this finding was correct. The fact that the other accused were in this house calculating what was due by or to various persons as a result of the betting on horse races only shows that these persons were present in that house for the purpose of assisting the persons who were conducting the betting; but not that they themselves were actually gaming. Despite the fact that the presence of the other accused is evidence under Section 6 of the fact that they were there for the purpose, if I were trying the case myself, I would be inclined to find the other accused guilty under Section 8 rather than under Section 9; but I do not consider that this is a sufficient reason for interfering with the conviction or the sentences imposed by the trial Magistrate. The appellants, who have been fined only Rs. 75 in the case of accused 1 and 2, and Rs. 50 in the case of others, may be considered to have got off lightly. The petition is accordingly dismissed.