1. The three petitioners have been convicted of conducting a common gaming house Under Section 45, Act 3 of 1880. The Police Inspector P.W, 1 raided the hut on 2nd December 1931. He found A-2, A-3 and 8 others playing cards with stakes. He seized the playing cards with some cash which was on the ground. His enquiry showed that A-2 and A-3 were conducting the gaming house and that A-1 and the absent accused Kuppuraju were also connected with the management. This Revision Petition has been put in against the conviction and I think it must be allowed. There is no evidence that the hut was searched on a warrant and consequently the presumption which could be raised Under Section 43 from the finding of instruments of gaming that the place was used as a common gaming house does not arise and it must be shown independently that the accused were guilty of the offence Under Section 45 by opening, keeping or using or permitting to be used this hut as a common gaming house.
Common gaming house' is defined as 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 ownin', 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, room or place, or otherwise howsoever.
2. The evidence of the Inspector on this point is admittedly hearsay. But the prosecution relies on the evidence of P. W. 2 who said in chief:
I know the hut in question. Gambling for money has been going on there for the last 8 or 9 years. Kuppuraju and A-l are responsible for conducting it and A-2 and A-3 are in charge of the collections. I have seen them on several occasions gambling for money and making collections.
3. There is nothing further on the point in cross-examination. The question therefore, is whether this evidence sufficiently brings home to the accused that they were conducting this common gaminghouse for which it is essential to prove that they made a profit out of it: vide Puran Mull Biwani v. Emperor : AIR1929Cal644 where it is said that profit or gain is the cardinal constituent of the definition of a common gaming house. Therefore unless there is sufficient evidence on the record to make out this element of profit or gain against the accused, a conviction for keeping or using a room as a common gaming house cannot be had: vide also the ruling in In reNanjappa Goundar  1 Weir 918.
4. In a criminal prosecution the case must be strictly proved against the accused. However unlikely it might be it cannot be said to be impossible that the losses of the gamblers might be devoted to some charitable object. It might also be that the gamblers intended to square up their accounts with each other at the end of certain periods, the accused in the meanwhile having charge of the losses incurred by the various gamblers. I think it should be specifically proved that profit was made by the accused because that is the essence of the offence and until that evidence is given the accused are not really in a position to meet the change that they were deriving profit from conducting the gaming house. Under these circumstances, I do not think it is necessary to go into the further contention raised that the hut spoken to by P.W. 2 is not the same as spoken to by the Inspector.
5. The conviction must be set aside and the fine, if paid, refunded.