1. The learned State Prosecutor states that he cannot support the convictions and sentences of the Special Honorary Presidency Magistrate and I entirely agree with him.
2. The established facts are: The accused persons T. R. Farthasarathi, Srinivasalu, Go-vindaraj, Umapathi, Juvenile Ponnorangam and Murugavel are occupants of a house bearing door No. 4. Thandavaraya Pillai Street. The first of them Parthasarathi is the landlord and the others are tenants living in various parts of the same house. This house was raided on a search warrant on 1-10-1950 at 3-30 p. m. These six persons were found playing cards In an upstairs room on a carpet. The police detained these six persons and seized the forty playing cards (M. O. 1), the carpet (M. O. 2), cash Rs. 7-2-6 (M. O. 4) and a samll empty L. G. asafoetida tin box (M. O. 3) with rupee one in small change placed besides accused I. They were charged under Sections 45 and 46, Madras City Police Act, 3 of 1898 (hereinafter referred to as Act).
3. Section 45 of the Act lays down: 'Whoever opens, keeps or uses or permits to be used any common gaming house, or conducts orassists in conducting the business of any common gaming house or advances or furnishes money for gaming therein, shall be liable on conviction to fine etc. etc.'
4. Section 46 of the Act lays down: 'Whoever is found gaming or present for the purpose of gaming in a common gaming house shall on conviction be liable to fine etc. etc., and any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.' The case for the accused was that they were playing cards in that upstairs room and they were doing so for mere pleasure on a holiday, that all of them were co-tenante and that the room in question was a private room and that they werenot playing with money as quota money.
5. The learned Special Honorary Presidency Magistrate has by a process of reasoning, which is both obscure and forced, came to the conclusion that he believed the prosecution and found accused 1 guilty under Sections 45 and 46 of the Act and the other accused guilty under Section 46 of the Act.
6. There cannot be the slightest doubt in th-s case that this Honorary Special Presidency Magistrate has not understood the scope of Sections 45 and 46 of the Act. In order to bring the playing of cards within these sections it should first of all be proved that the premises raided was a common gaming house. Section 3 of the Act defines what a common gaming house is. It means any enclosure, room or place, in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using, or keeping such enclosure, room or place, whether by way of charge for the . use of instruments of gaming or of the enclosure etc. etc. In other words, unless there is sufficient evidence on record to make out the element of profit or gain to the accused, the offence of keeping or using a room as a common gaming house cannot be said to be proved: Vide -- 'Rathina Gramany v. Emperor' : AIR1932Mad675 . The mere fact, that occasionally people play cards in a house and perhaps for money, does not necessarily make it a common gaming house: Vide -- 'Emperor v. Subramania Sastri' : AIR1935Mad648 .
The evidence in this case is that this playing of cards was on a holiday and confined to the landlord and tenants of the house and was in a private room and that there have been no instances before of this premises being used as a common gaming house. The petty amount found is quite consistent with the explanation put forward by the accused and does not necessarily lead to the conclusion that it was quota money. The learned Honorary Presidency Magistrate without considering this essential element has embarked into a Disquisition about the meaning of the word 'place' and whether this was a public place, which has no relevance to this casn. It arises only where the meaning of the word 'public place' assumes importance and it has to be considered whether the real offence, which is annoyance to wayfarers and pedestrians, can be said to have been committed on account of the situation of the place, namely, accessibility and visibility to the public. There can be no doubt that in this case there is no proof whatsoever that the place where this game of playing cards was going on was a common gaming house as laid down in -- 'Chinnah In re'. AIR 1924 Mad 729 (C).
7. On that conclusion it follows that therecan be no conviction under Section 46 of the Act whichprescribes a penalty for being found in a common gaming house: see M.E. Sheik Mohamed, in re,--'AIR 1948 Mad 527 (D)'. On this conclusion it also follows that there can be no forfeiture and in fact the Act does not contemplate forfeiture following seizure as a matter of course. Before ordering forfeiture the magistrate must be satisfied that the money or other articles seized were used or intended to be used for gaming; see -- 'Subbier v. Emperor', AIR 1935 Mad 98 (E). And where money is found in the pockets of the persons convicted of gaming, it must be proved that it was likely to have been used in connection with the gaming: see -- 'Rex v. Jaggopal Prasad' : AIR1941Mad889 .
8. The net result of the analysis of the evidence is that certain friends occupying the same premises and finding nothing more useful to employ their time than a friendly game of cards were found playing and that apparently on account of ill wishers to them the Police have been tipped off and a raid had been arranged and search warrant had been granted without adequate care and attention and a wholly unnecessary prosecution had taken place and a wholly unwarranted conviction had followed. I have not therefore the slightest hesitation in setting aside the convictions and sentences of the lower court and directing the refund of the fines and seizures.
9. Before parting with this case, I must record my anxiety about this laxity in the construction of punitive provisions and the proneness to convict on wholly inadequate evidence. It is to be hoped that there will not be repetitions in fu-true.