1. The petitioner is first accused in C.C. No. 348 of 1929 on the file of the Sub-Magistrate, Gudivada. The Appellate Court has sentenced him to three months' rigorous imprisonment. It has also confirmed the order of the Trial Court whereby sums of money amounting to Rs. 1906-9-6 found in the house of accused 1 have been confiscated.
2. Apparently the accused was convicted in the alternative under Section 6, Madras Act III of 1889 Madras Towns Nuisances Act (III of 1889) or Section 8, Madras Act III of 1930 Madras Gaming Act (III of 1930). The offence was on 8th November, 1929 and Madras Act (III of 1930) received the assent of the Governor-General on 21st March, 1930.
3. The Appellate Court finds that there was nothing wrong in passing sentence under the 1930 Act, because its sections 8 and 9 are identical with sections 6 and 7 of the 1889 Act. There is no reason for presuming that Act III of 1930 is retrospective and its similarity to a previous Act cannot make it so. The Act under which accused is liable is clearly Act III of 1889. Under Section 9 of that Act a Police Officer may seize all moneys reasonably suspected to have been intended to be used for the purpose of gaming. Under Section 517 (1), Criminal Procedure Code, a Court can confiscate any property which has been used for the commission of an offence. The Lower Courts should specifically have passed orders under Section 517 instead of leaving it vague under what law they were proceeding; but that omission does not affect the validity of the order. The more difficult question is to determine whether these moneys were intended to be used for gambling. The Sub-Magistrate finds that they were so intended because the accused refused to open the safe, because the safe contained cowries, and because each currency note was folded by itself 'indicating its passing through business at the time'. The Appellate Court does not go into the question. Apparently the game played was pitch and toss. Whether the petitioner held the bank and gambled with his clients or whether they gambled with each other, and he took a commission as his payment for providing facilities is not clear. The point is important in discovering what money was likely to be used in the business. There is no evidence about the appearance of the safe when it was opened. How much had been hurriedly bundled away, and how much was folded singly. It is not made clear why this folding proves that the notes were used for gambling. That the safe contains cowries does not necessarily mean that its whole contents must have been used for gambling. For instance, the empty purse M.O. 5 could hardly have been so used. M.O. 1 is Rs. 175-15-9 taken from persons present other than the petitioner apparently including a sum found under a bed. M.Os. 2, 3 and 4 are money taken from each shelf of the safe Rs. 1,730-9-9 in all. There is really no evidence that this large sum was all used for gambling. In any circumstances confiscated money is practically a fine, and, for a first offence to give a man the maximum term of imprisonment together with confiscation which is three times the maximum fine is hardly what the law contemplates. Moreover for these statutory crimes outside the Penal Code imprisonment should be the last resort in cases of contumacy rather than the general penalty. Gambling is a public nuisance but it hardly ranks with the ordinary crimes against person and property. Instead of the remainder of the sentence of imprisonment accused 1 will be fined Rs. 500 and, that being paid, the contents of the safe will be returned to him (except for the cowries). Because it is impossible to say on the evidence how much was used or intended to be used for gambling, and the onus is upon the prosecution.
4. The accused's bail is released.