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In Re: K.M.T.T. Kulandaivelu Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1938Mad705; (1938)2MLJ266
AppellantIn Re: K.M.T.T. Kulandaivelu Chettiar and ors.
Cases Referred and Kesanna Chetty v. Emperor
Excerpt:
.....from the facts, i should still be of opinion that the room in which the gambling took place was a 'common gaming house'.section 6 clearly makes the finding of cards or instruments of gaming not merely evidence that cards or instruments of gaming were found; that contention may be right, although in the majority of cases quoted before me by the learned advocates for the petitioner as well as for the crown, the effect of finding the articles mentioned in section 6 is referred to as raising a presumption. 8. clearly, the 13th accused, who was gambling in that house, could have been convicted under section 9 of the gaming act as the other accused were. if, by the application of section 6, the court is satisfied that the room in question was a common gaming house, then it would follow that..........and it has been found by both the courts below that these persons were engaged in gaming in a 'common gaming house' within the meaning of section 3 of the madras gaming act, 1930. accused 1 to 12 were convicted under section 9 of the act of gaming in a 'common gaming house' and the 13th accused was convicted under section 8, which punishes the opening, keeping, using or permitting to be used any common gaming house or conducting or assisting in conducting such, etc. the 13th accused contends that the building in which the gaming took place was not a common gaming house and that n any event the 13th accused was not the keeper of that gaming house.2. most of the arguments have turned on the legal effect of section 6 of the gaming act which is thatany cards, dice, gaming table or cloth,.....
Judgment:
ORDER

Horwell, J.

1. The petitioners were found in a small room of a building in Devakottai described as the 'Jubilee Club' with all the paraphernalia of gambling such as cards, coloured chips, beans, and cash and it has been found by both the Courts below that these persons were engaged in gaming in a 'common gaming house' within the meaning of Section 3 of the Madras Gaming Act, 1930. Accused 1 to 12 were convicted under Section 9 of the Act of gaming in a 'common gaming house' and the 13th accused was convicted under Section 8, which punishes the opening, keeping, using or permitting to be used any common gaming house or conducting or assisting in conducting such, etc. The 13th accused contends that the building in which the gaming took place was not a common gaming house and that n any event the 13th accused was not the keeper of that gaming house.

2. Most of the arguments have turned on the legal effect of Section 6 of the Gaming Act which is that

Any cards, dice, gaming table or cloth, board or other instruments of gaming found in any place entered or searched under the provisions of the last preceding section, or on any person found therein shall be evidence that such place is used as a common gaming house and that the persons found therein were there present for the purpose of gaming.

3. Section 5 empowers a salaried Magistrate, not below the rank of a Second Class Magistrate, and certain police officers to issue a warrant to a police officer upon the belief that a certain place was used as a common gaming house, to search such a place and seize any property therein which are instruments of gaming, moneys, securities connected therewith and to arrest all persons found there. The words 'common gaming house' are defined in Section 3 as any room, etc., 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, etc., that room. It is said that the prosecution have not been able to prove that any person has received any money or profit for the keeping of this room for the purpose of gaming; but 1 cannot altogether agree that this is so. The club appears to have been a bogus one; the 13th accused's participation in the gaming is proof that he knew the purpose for which he was letting the building. In accepting rent for the use of a building for gambling, he was making a profit from the gaming.

4. Apart from this common sense deduction from the facts, I should still be of opinion that the room in which the gambling took place was a 'common gaming house'. Section 6 clearly makes the finding of cards or instruments of gaming not merely evidence that cards or instruments of gaming were found; but that the building in which they were found was a 'common gaming house', provided that these articles were found there in a search conducted upon a warrant issued under Section 5. That means that although there may not be any independent proof that any person makes a profit from this gambling or from the use of the room for gambling; yet the mere finding of cards and instruments of gambling in a house searched on such a warrant is evidence that the room was used for gambling and that some person was deriving a profit from it.

5. It is however contended that the section does not raise a presumption that a room in which these articles were found was a common gaming house. That contention may be right, although in the majority of cases quoted before me by the learned Advocates for the petitioner as well as for the Crown, the effect of finding the articles mentioned in Section 6 is referred to as raising a presumption. Even though there is no such presumption of guilt, there is nothing in the Act which prevents a Magistrate convicting upon that evidence also. I do not propose to decide the abstract question whether such evidence alone would be sufficient or not to sustain a conviction; for, in almost every case, there must be some other evidence lessening the effect of the evidence operated on by Section 6 or increasing it. In the present case, there is evidence to the effect that this room in which the gambling took place was not part of a club at all; and it would appear that the name 'Jubilee Club' was intended merely to screen from the public the nature of the building and the purpose for which the building was used. The Circle Inspector deposes that when the police party entered, the petitioner signalled to the other accused and they tried to extinguish the petromax light which was burning and to conceal the articles of gambling by standing round them. This is further evidence upon which the Magistrate was entitled to act; and I cannot say that on the evidence before the Magistrate he was not justified in convicting the accused of gambling in a common gaming house.

6. It is further argued that before the presumption under Section 6 can be availed of, there must be some evidence for the prosecution that the warrant was issued under Section 5 upon proper information, sufficient to lead a Magistrate to believe that the room in question was used as a common gaming house. This contention has some support from some observations found in Walvekar v. Emperor I.L.R.(1926) Cal. 718 Emperor v. Dattatraya Shankar Paranjpe (1923) 25 Cr. L.J. 531 and Kesanna Chetty v. Emperor (1937) M.W.N. 1068; but I see no reason why the presumption raised under Section 114, Illustration (e) of the Evidence Act that judicial and official acts have been regularly performed should not be here applied. It would be against public policy in most cases if the prosecution were compelled to let in evidence in regard to the material on which a Magistrate acted. If the nature and the source of such information were not concealed, the police might be unable in future to obtain information at all.

7. Another contention is that a common gaming house cannot include any gaming house in which there was any restriction on its use by any section of the public. The definition of a common gaming house in Section 3 warrants no such limitations. Any room is a common gaming house if instruments of gaming are kept or used there for the profit of a person owning, occupying, etc., that house. If a common gaming house had the limited meaning ascribed to it, it would be possible for any person to avoid the application of the Gaming Act by introducing some petty restrictions on certain classes of persons. Members of a particular caste might be excluded or even more fanciful restrictions might be applied, such as by excluding persons above or below a certain height or weight. I cannot accept this contention.

8. Clearly, the 13th accused, who was gambling in that house, could have been convicted under Section 9 of the Gaming Act as the other accused were. He has, however, been convicted under Section 8 simply because the Magistrate thought that Section 8 was a more serious offence and that the greater offence included the lesser. It has been argued that it has not been satisfactorily proved that he derived any benefit from this gaming house. If, by the application of Section 6, the Court is satisfied that the room in question was a common gaming house, then it would follow that gaming was conducted there for some person's profit. The person mentioned in the warrant as using the gaming house is the Secretary of the Club; but as the police were given to understand that he had not been present in the room for 10 or 15 days, he was not charged. The petitioner, who was found participating in the gaming, was charged as the owner of the room and one who had derived a profit, from the gaming that was going on there. The petitioner has produced a document under which the house in question purports to have been sold to his daughter; but whether the sale is a genuine one or not matters little; for it is clear that it was the petitioner who was acting as the owner of the place - whether on behalf of himself or his daughter - and as presumably rent was being paid for that building, the owner of the house was receiving profit from it. Even otherwise, the petitioner had the control of the house and knew that gaming was going on there. He would therefore be guilty under Section 8 because he was permitting his property to be used as a common gaming house. He was therefore rightly convicted under Section 8.

9. The punishments awarded are not excessive. Section 8 prescribes a maximum fine not exceeding Rs. 500 or imprisonment not exceeding three months; and the 13th accused has been sentenced only to a fine of Rs. 75. This cannot be said to be heavy. The other petitioners were sentenced only to a fine of Rs. 50.

10. The petition is therefore dismissed.


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