1. The six petitioners in this case have been convicted--petitioners Nos. 1 to 5 under Section 9 and petitioner No. 6 under Section 8 of the Madras Gaming Act (III of 1930)--and have been sentenced to pay a fine of Rs. 50 each The learned Magistrate has also confiscated under Section 10, all the moneys found either in front of or on the persons of the various petitioners at the time and at the place searched by the Police.
2. Two points arise for consideration in this Criminal Revision Case. The first is whether the warrant under which the room in which the play was going on was searched is or is not legal, and the second is whether the Magistrate was right in ordering the confiscation of the money.
3. On the first point great emphasis is laid upon the words to be found in the warrant itself. The warrant begins as follows:--'Whereas information, has been laid before me that certain premises are being used is a common gaming house and gambling is also going on there and it has been made to appear to me that a search of the premises is necessary, I authorise you... to search'. It is argued that in this warrant the Stationary Sub-Magistrate who issued it does not say in the words of Section 5 that he had 'reason to believe' that the place in question was used as a common gaming house. It seems to me, however, that the mere omission of these particular words in the warrant is by no means conclusive on this matter and the real question is whether as a matter of fact, the Magistrate had or had not reason to believe. I find from Ex. A that the Sub-Inspector of Police, Kumbakonam Town, brought a letter to the Magistrate in which he stated that he was reliably informed that this particular house was used as a common gaming house. This letter was received by the Magistrate, who before issuing any warrant examined the Sub-Inspector of Police on oath and when the Sub-Inspector repeated on oath that the information he had received was true and that he wanted the issue of a warrant, the Magistrate endorsed upon Ex. A. 1. issue warrant under Section 5 of the Gaming Act III of 1930'. It seems to me impossible to argue on a consideration of these facts that the Magistrate was not aware of the serious nature of the step he was taking and that he had no reason to believe that the information which was given him was true. It appears to me, therefore, that the warrant which was issued satisfies the provision of Section 5 of the Act.
4. I have been referred to a judgment of Pandrang Row, J. in the Public Prosecutor v. Subramania Sastri : AIR1935Mad648 . That was a case in which a search warrant was issued not under Section 5 of the Madras Gaming Act III of 1930 but under Section 96 of the Criminal Procedure Code, but the premises to be searched were premises in which it was alleged that gambling was going on. The learned Judge finds that the information which was laid before the Magistrate who issued the warrant in that case was not information that the place was a common gaming house but only information that gambling was going on there. He, therefore, holds quite rightly if I may say so with respect, that it is impossible in the circumstances of that case when that information and that information only reached the Magistrate, that the Magistrate could have any reason to believe that the premises for which a search warrant was asked for were used as a common gaming house. In the present case, a definite assertion was made by the Sub-Inspector before the Magistrate that the premises were being used as a common gaming house and I am not prepared to hold that the decision in the Public Prosecutor v. Subramania Sascri : AIR1935Mad648 case can be appealed to as any authority on the facts of the present case.
5. I have been referred to a case reported in Walvekar v. Emperor 53 C. 718 : 96 Ind. Cas. 264 : 53 C 718 : 30 C.W.N. 713 : A.I.R. 1926 Cal. 966 : 27 Cr. L.J. 920. This is a case relating to the issue of a wrarant under Section 46 of the. Calcutta Police Act whereas in the present section (Section 5) it is necessary that the Magistrate who issues the warrant must have reason to believe that the premises to be searched are used as a common gaming house. In that case the warrant' which was issued was expressed as follows:
Whereas it appears to me upon due enquiry and by information on oath that there is cause to suspect that such and such premises are used as a common gaming house
6. It is again pointed out by the learned. Judges who decided that case that the section must be construed strictly and that, where it is necessary, that the Magistrate should have 'reason to believe,' it cannot be said that he has that reason when he himself says that there is only 'cause to suspect'. In the present case, there is no' such language used in the warrant and no phraseology in the warrant itself which is in any way inconsistent with the fact that the Magistrate had reason to believe that this house was a common gaming house. It seems to me, therefore, that neither of these cases affords any real help to the petitioners. In the result, learned Joint Magistrate was right in applying the presumption referred to in Section 6 of the Act, If that is so, it is not further contended that the convictions are not right and proper.
7. The second point is with regard to the confiscation of money. It appears from the evidence in the case that a total sum of about Rs. 300 was actually found in front of the first, second and the third accused who were engaged in gambling and that the rest of the money was seized from the persons of the various accused. The authority for ordering forfeiture of money is Section 10 of the Act, and that in its turn depends upon Section 5. Section 5 authorises the seizure of 'all moneys reasonably suspected to have been or intended to be used for the purpose of gaming'. Under Section 10 it is of course obvious that it is only money which is or reasonably suspected of having been used or intended to be used for the purpose of gaming which can be forfeited and the Magistrate is not entitled, without some kind of material for a finding on this point, to order the confiscation of all moneys seized. In the present case, the learned Magistrate, has not considered the importance of the expression which I have just quoted from Section 5. He has merely in a single sentence at the end of his judgment ordered the confiscation of all the moneys found. It is not, I think, necessary to order a re-trial for a decision on this minor point. I think the ends of justice would be met if the order of forfeiture is confined to the money found actually out in front of the players when it was seized, and with respect to the rest of the moneys seized from the persons of the petitioners, the order of forfeiture is here by cancelled and the moneys directed to be returned to them.