1. For a very long time the Assistant Commissioner of Police, Southern Range, Madras had been watching the activities of the 1st and 2nd accused in connection with what was known as the Aryan Sports Club; and when he thought he had received sufficient information about the doings of these accused and their organization he arranged that a number of police officers should join with him and the present premises of that organization in No. 7, Second Street, Ibrahim Salt Colony, Egmore. Constables who had been stationed at that house from the early morning had seen numbers of people coming and going. When the first police party forcibly entered the house, they met with some resistance, and persons inside attempted to get away by forcing themselves past the police officers. Two persons, the second accused and another who was acquitted in the lower Court, succeeded in escaping; but with the assistance of other police officers all those found inside the house were rounded up and charge-sheeted before the Presidency Magistrate. During the course of the search the police found large quantities of materials used in connection with betting on horse racing, a long list being given in the evidence of P. W. 1, amounting to about 150 articles or groups of articles. The 1st and 2nd accused were charged under Section 37 (2) and Section 45 of the Madras City Police Act as being the persons who owned or occupied the Chouse and used it for the purpose of betting on horse races. All the other accused were charged under Section 37 (3) with being found gaining on horse races and under Section 46 with gaming or being present for the purpose of gaming in a common gaming house. The 1st and 2nd accused were sentenced to two months' rigorous imprisonment each, while the other appellants were sentenced to fines of Rs. 100 or Rs. 150 each. Some, other persons were charged as being connected with this association for the purpose of gaming; but they were acquitted on the ground that they were not present on the day on which the raid was made. It is not quite clear why they were acquitted. If, as the Magistrate held, they were agents of this business and had actually been receiving bets in connection 'with the races that were being held or had been held at about the time when the raid, was made, they were guilty under Section 37 (3) notwithstanding the fact that they were not present in, the house, when the raid was made. All the convicted persons have appealed ;
2. The police have examined a number of witnesses, many of whom were police officers who took part in the raid on that day. Other persons were taken as approvers, persons who admitted having had something to do with that organization and who speak to what had been going on in that house and to the parts, played by the various accused in that organization. Some witnesses were examined to show that the 2nd accused was present in the house on that day. Some saw him there; others speak to the manner in which he escaped from the house and very hastily engaged a taxi to take him to Renigunta, where he succeeded in catching the train to Poona. The 2nd accused set up a plea of alibi and much of the discussion in the lower Court related to that plea. He examined a number of persons of status of Poona, who supported his plea of alibi; but Mr. Jayarama Aiyar has very rightly not attempted to support this plea of this accused because the evidence against him on this point is overwhelming. The Assistant Commissioner and others saw him in the house; some others saw him outside the house; and the driver of the taxi which took him to Renigunta and others speak to his negotiations for the hire of the taxi for that purpose. That the taxi was used on the day when the raid was made is proved beyond all doubt by the production of petrol receipts for that day, showing that a large quantity of petrol was purchased.,So the 2nd accused, like the other accused, has to accept the position that he was present at the time of the raid; and therefore the only question in regard to him, as to the other accused, is whether they committed offences punishable under Sections 37, 45 and 46 of the Madras City Police Act.
3. One of the important questions that arises in this case is whether this house No. 7, Second Street, Ibrahim Sait Colony, Egmore, was a common gaming house within the meaning of the definition of that expression in Section 3 of the Act. ; The evidence let in by the prosecution shows that the organization did its work principally outside the building. A number of agents were employed by either the 1st or 2nd accused or by both who accepted bets all over the city of Madras and elsewhere and brought to this house betting slips after the betting, contracts were completed. There--and also in other houses--calculations were made after the races had been run and it was-ascertained what amounts were due to various punters who had had dealings with the agents. The agents were then paid the sums due on the winning horses and they took the money away, and distributed it to their clients outside. P.W. 3 has deposed that a number of accused, when told to pick up the slips with which they were connected, picked up the various; betting slips from, out of the bundles that lay on the floor in that chouse,. P.W. 16 pointed out a, number of persons who he said were agents of this organization, and P.W. 3 gave a list of the accused engaged in Calculating the winnings due to the punters and to the agents on their behalf. It therefore seems probable that at the time when the raid was made there was no betting actually going on; but that does not show in itself that this house was not; a common gaming house. For example, P.W. 3, although his evidence is rather bare of detail, deposes that he betted with the 1st and 2nd accused, though his principal business, seems to have been to act as, an agent for the organization to deal with punters outside.
4. It will be noticed that the definition of a common gaming house falls into 'two parts, the second of which is included in brackets, because it was added to the definition of a common gaming house in 1936. 'Prior to 1929, betting on horse-races was not an offence at all; but in that year a definition of 'gaming' was added to the Act, so as to include wagering or betting on a horse-race. At that time, however, no change was made in the definition of a common gaming house; and it is argued by Mr. Jayarama Aiyar that the definition of a common gaming house, until it was extended in 1936, did not include a place in which betting slips were kept or used; and that the only offence punishable before 1936 in connection with horse racing was betting on horse-races, punishable under Section 37 (2) and (3) of the Act. I find, however, that Cornish, J., in In re Subbier (1934) 68 M.L.J. 58 : I.L.R. Mad. 867 which was a case decided in 1934, before the definition of a common gaming house was extended, took it for granted that a house in which betting slips were found was a common gaming house within the then definition of that expression in Section 3; for he proceeded to apply Section 43 to the facts of that case and found that because betting slips were found in the house,' there was evidence that the house was being used as a common gaming house. Even if the matter were res integra, I would be of the same opinion; for by the definition then existing of 'gaming', betting slips would be instruments of gaming and a common gaming house then inched any room or place in which instruments of gaming were kept or used for the profit of the person owning or occupying or using or keeping it. So that if a person used a house for keeping betting slips for his profit, then the building in which he was operating would come 'under the definition of a common gaming house. Mr. Jayarama Aiyar argues that since the part which was added to the definition in 1936 deals exclusively with horse racing, it is an indication that the Legislature did not intend that the first part, which was in existence before 1936, should be applied to horse racing; but the learned Crown Prosecutor has pointed out that the portion added was necessary, even though a house in which' letting slips were kept was a common gaming house; for under the definition' of a common gaming house as it stood before 1986; a house in which mere betting on horses took place would' not !be a common gaming house, as it was then a necessary unction of a common gaming house that instruments of gaming should be kept there. I therefore hold that the first part of 'the' definition of a common gaming house also applies to horse racing and that therefore the keeping of betting slips in a house for the owner's profit makes that house a, common gaming house.
5. The evidence discloses that while a search was being made, betting slips were found in an almirah inside the house and these were not then being used as a basis for calculations. If an agent merely brings his betting slips into a house in order that calculations may be made and he then takes them away again, it could hardly be said that then betting slips were kept in the house, but when slips are taken and placed in an almirah--not for immediate use, but for future use,--then it is clear that they are kept, there., : If those betting slips were kept there,; then the house could be presumed to be a common gaming house; for under Section 43 of the Act the fact that these things were found there would be evidence that the house was used as a common, gaming house. Moreover, even though the prosecution evidence shows that the principal business of that day was the calculation of winnings and the distribution of money to the agents, it is not at all certain that betting never took place there. The betting slips that were found on the floor were all initialled, whereas the slips kept in the almirah were not, unless at the end of the adding up of the amounts of the various slips, the letters 'O.K.' are the initials of an agent, which there is no reason to think was the ease. In either view of the matter, therefore, whether because of the definition of a common gaming house and the presumption, if it may be so called, arising under Section 43 of the Act or whether because of the evidence of P.W. 3, this house, No. 7, Second Street, Ibrahim Sait Colony, Egmore, was a common gaming house.
6. It does not however follow that because this was a common gaming house, all the persons engaged therein would be guilty under Section 37 (2) or Section 3? (3) of the Act, or under Sections 45 and 46. Although their mere presence in the house is evidence of their being there for that purpose under Section 43 of the Act, the definite evidence' let in by the persons who admitted having connections with this organisation that at the time of the raid the persons who were there were not there for the purpose of gaming or betting but for the simple purpose of making calculations or being paid what was due to them or their! clients, rebuts the statutory evidence. In Criminal Appeals Nos. 367 and 376 of 1941 I held that calculators were not guilty of any offence. The facts of that case are different from the present, ease, in that here there is a common gaming : house used as the headquarters of the organization. But although calculating is an essential part of the organization of the Aryan Sports Club, it is not a necessary ingredient of the work of a common gaming house. So that even in this case persons who were merely calculating were not, I think, guilty of any offence. This would mean that accused 6, 12, 13, 15 19, 20; 22-and 23 should have been acquitted. The 22nd accused has another just; ground for appeal; and that is that he was a gardener of the house; and not likely therefore to have been in the house for the purpose of betting or having anything to do with betting transactions other than that on which he appears to have been engaged, namely, that of calculating. Their appeal is therefore allowed and their convictions and sentences set aside. The fines that they have paid should be refunded to them.
7. The remaining accused were found to have been convicted with actual betting in some way or other, presumably as agents. Some of them, have been definitely pointed out by witnesses, as being agents, while others proved their complicity by taking up betting slips from those on the floor in answer to the direction of the police to them to pick up the slips with, which they,were connected. These accused. were therefore properly convicted both under Section 37 (3) and under Section 46. The sentences, are,very, inadequate. The evidence shows that huge profits were made from these betting transactions, several thousands of rupees as profits being made on each race. It is a well-known fact that agents have many other means, too, of making a profit out of the man in the street with whom they are dealing. A fine of Rs. 100 or Rs. 150 is therefore no deterrent at all; these accused should have been sent to jail. As I have had frequent occasion to observe, crime is indeed a very profitable business in Madras, except for the very poor.
8. If, as I have found, the house that was raided was a common gaming house, then there can be no doubt at all that the first accused was guilty under Section 45 of keeping and using a common gaming house. He has been proved to have been the lessee of the house; and the evidence very definitely shows it is he who, for the most part, now organizes and conducts this club. If, however, no betting on horse races took place within the house, but was done entirely outside by the agents, he would not be guilty under Section 37 (2)', but under Section 37 (3) read with Section 109, Indian Penal Code. As, however, I have held that betting did take place in the house he was rightly convicted under Section 37 (2) of the Act. In any event, whether he was properly convicted under Section 37 (2) or not, it is certain that the sentence of two months' rigorous imprisonment is not excessive.
9. The evidence against the second accused is certainly not as strong as against the 1st accused; and a very strong plea has been made on his behalf. The evidence shows that at the inception it was the second accused who was running this Aryan Sports Club. Both he and the 1st accused, who is his young brother-in-law seem to have come to Madras for the express purpose of running this organization, for it is certainly strange that a young man of Poona, like the 1st accused, should come; to a College in Madras for the purpose of study. However, P.W. 16 who was a former agent of the club, while saying that the club is owned by the 2nd accused, says that 'in 1939 he was conducting the business-and not now. Accused 2 comes and stays with accused 1; but he did not do anything connected with the business'. P.W. 13 says that he was a punter and had had dealings with the 25th accused, who was an, agent of the Aryan, Sports Club. He deposes that as he was not quite certain, about the good faith of this institution, the 25th accused offered to take him there, and he did so. Both the 1st and the 2nd accused told him that he might safely lay bets and that there, was no; difficulty about money. 'The evidence shows that at the time of the raid the 2nd accused was discussing with this very agent, viz., the 25th accused, about some payment. Mr. Jayarama Aiyar contends that it has not been said that the payment related to a payment due on a horse race. That is true, but the house was full of agents who had comb to discuss' payments of money; and it is most unlikely that. the 25th accused and the 2nd accused were then sitting there discussing a payment unconnected with the purpose for which so many persons had gathered there. It is also improbable that the 2nd accused would leave Poona during Christmas and spend the whole of it in Madras with his brother-in-law on a friendly visit. The fact that he was originally entirely managing the business himself and was subsequently paying 'visits to the house from time to time makes it very difficult to resist the conclusion that he was still connected with and conducting the business in conjunction with the 1st accused. At first, the business needed the undivided attention of the 2nd ' accused; but as the 1st accused, a young man of 22, gained experience, it became less and less necessary for the 2nd accused to spend a long time in Madras personally supervising the business. I have no doubt, therefore that the 2nd accused was at least as much connected with the organization as, the 1st accused although the details of the business may have been left to the 1st accused. The 2nd accused was therefore properly convicted and the sentence is certainly not excessive.
10. In the result, except in the case of accused 6, 12, 13, 15, 19,, 20, 22 and 23 the appeals are dismissed. The ancillary orders made by the Magistrate in connection with the confiscation and the reward are affirmed.