Chandrasekhara Aiyar, J.
1. The learned Sub-Divisional Magistrate has misdirected himself on the meaning, scope and effect of Section 6 of the Gaming Act. All that the section says is that ' any card, dice, gaming table or cloth, board or other instruments of gaming found in any place entered or searched under the provisions of Section 5, 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, although no play was actually seen by the police officer or any of his assistance.' It is only a piece of evidence in support of the prosecution. He was wrong in thinking that it was a conclusive piece of evidence warranting a finding of guilty without anything more. On the other hand, in this case, the trial Court found on the evidence adduced that the third accused was not using the house for purposes of any profit. These are his words ' The evidence adduced shows that the accused is not deriving any profits by running a gaming house.
2. Under the definition of a common gaming house, the element of profit or gain is an essential ingredient and, when this has been negatived, there is nothing to warrant a conviction under Section 9, which postulates of course the position that the persons found gaming were present for the purpose of gaming in a common gaming house.
3. The convictions are set aside and the fines, if paid, will be refunded. The property seized will be delivered back to those from whom they were seized.