1. These twenty-three petitioners are accused 1 to 9, 11, 12, 13, 15 and 17 to 26 in C.C. Nos. 2053 to 2078 of 1957 on the file of the Second Class Magistrate, Tirumayam. They were all convicted under Section 9 of the Madras Gaming Act and sentenced to pay a fine of Rs. 100 each. In addition accused 26 was convicted under Section 8 and sentenced to pay a fine of Rs. 200.
2. The accused are said to have been playing cards in a common gaming house run by accused 26. The Sub-Inspector raided the place and it is said that the Deputy Superintendent of Police also was in the party of the police who raided the place. Instead of issuing a warrant under Section 5(1) of the Madras Gaming Act, under Sub-section (2) of Section 5, any police officer having power to issue a warrant under Sub-section (1), may instead of doing so, himself exercise all or any of the powers exercisable under such warrant. The Deputy Superintendent of Police, therefore, instead of issuing a warrant may well exercise all or any of the powers exercisable under such warrant, that is, he can raid the place and seize the instruments of gaming and other things. In short instead of issuing a warrant to subordinate police officers by virtue of which a Sub-Inspector or other police officer below the rank of a Deputy Superintendent of Police can go to a common gaming house, arrest the persons and seize the instruments, the Deputy Superintendent of Police himself can go in person and raid that place. Under Section 6, the instruments of gaming which are seized shall be evidence, that is, if they are seized in pursuance of a warrant under Section 5. As the Deputy Superintendent of Police can himself go and seize the instruments without issuing a warrant, the provisions of Section 6 will be applicable to him if all the conditions mentioned in Section 5 are satisfied. That is to say, the Deputy Superintendent of Police must be satisfied and must have reason to believe that the place in question is used as a common gaming house. In his evidence he does not say that he received information that the place was used as a 'common gaming house.' The offence under the Act is gaming in a 'common gaming' house. Common gaming house is defined in the Act thus:
Common gaming house means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever 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 house, room, tent, enclosure, vehicle vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel or place opened, kept, or used, or permitted to be opened kept or used for the purpose of gaming ;...
3. As it is difficult to prove that the person owning the premises is earning a profit out of it, a provision like Section 6 is introduced. In order, therefore, to raise, if I may use the word, the presumption under Section 6 that the various instruments seized will be evidence that the place was used as a common gaming house without any further evidence about it, the officer issuing a warrant or making the raid shall satisfy himself that the place was used as a common gaming house. The expression ' common gaming house ' is used with a particular meaning given to it in the Act. Mere gaming in a place will not make it a common gaming house. The Deputy Superintendent of Police in his evidence merely says that he had information that the place was used occasionally as a gaming house. He does not say that he had information that the place was used as a common gaming house which is the essential pre-requisite for the issue of warrant. Nor does the Deputy Superintendent of Police say in his evidence that he was satisfied or he had reason to believe the information given to him that the place was used as a common gaming house. In the circumstances, therefore, even if the Deputy Superintendent of Police raids the place along with the other police officers without issuing the warrant the necessary presumption under Section 6 cannot be drawn. But in this case the prosecution has put in P.W. 4 to prove by other evidence that accused 26 is running a common gaming house, that is to say, to establish that accused 26 is making a profit out of the game played in his house. If P.W. 4is evidence is acceptable, then undoubtedly the place is run as a common gaming house, and whatever is seized will be evidence to show that the house is used as a common gaming house. He is a witness who has been once convicted of rioting. He also says that he has given evidence in a murder case. A reading of his evidence does not impress one as evidence which could be accepted in a case of this nature. If therefore the evidence of P.W. 4 is excluded there is no other evidence to show that the place is used as a common gaming house. The presumption not being available in this case, and as there is no other evidence to show that the place is used as a common gaming house, the fact that these accused were merely playing cards would not amount to gaming in a common gaming house. There is nothing wrong and no offence is committed if a number of persons join together and play cards even if the stakes are high unless the game is played in a common gaming house. Since it is not proved by evidence under Section 6, for the reasons I have already mentioned, it cannot be said that the offence has been brought home to these accused.
4. The convictions and sentences of these accused are, therefore, set aside and the accused are acquitted and the fines if paid will be refunded.
5. The monies and other articles seized from the various persons will be returned to them.