1. This is a Revision Petition preferred by the petitioner-accused 1 and 2 against the judgment of the learned Principal Sessions Judge, Bangalore, in Criminal Appeal No. 180 of 1954, confirming that of the learned Additional First Class Magistrate, Bangalore, in C. C. No. 4413/ 54, convicting the first petitioner under Section 63(1), Mysore Police Act and sentencing him to undergo simple imprisonment for one month and also to pay a fine of Rs. 200/- and in default to suffer simple imprisonment for a further period of one month, and convicting the second petitioner under Section 63(2), Mysore Police act and sentencing him to undergo simple imprisonment till the rising of the court and also to pay a fine of Rs. 50/-and in default to suffer simple imprisonment for three weeks.
2. The case for the prosecution was that on 4-7-1954 at about 1 P.M. the accused were found gaming on horse betting in a shop in the occupation of the first petitioner in Choudeswari temple street, that the said shop was being used as a common gaming house and that the accused thereby committed an offence punishable under Section 63, Mysore Police Act. Both the accused pleaded not guilty but the learned Magistrate ultimately convicted and sentenced the petitioners as stated above.
As against that decision, the petitioners went in appeal and the learned Sessions Judge confirmed the convictions and sentences passed on the petitioners and dismissed their appeal. As against that judgment, this revision petition is preferred.
3. The main point that arises for consideration is whether the guilt of the petitioners has been brought home to them. So far as A-1 is concerned it appears to me that there is no substance in this petition. He has been convicted and sentenced under Section 63(1), Police Act for having used his shop as a common gaming house. It appears to me that the evidence adduced in the case fully justifies the conviction of this accused tinder the aforesaid section. That he is in occupation of shop No. J2 in Choudeswari temple street has been proved by the evidence of P.W. 2, the owner of that shop. His testimony is that he has leased that shop to A-1,
The 1st accused also admits the lease and his having been in possession of it on the date of the occurrence. So the only point that arises for consideration is whether the 1st petitioner used or allowed the shop to be used as a common gaming house.
4. What a 'common gaming house' is, has been defined under expln. (3) to Section 4, Mysore Police Act, according to which it means.
a building, enclosure, room, place or vehicle in which any instruments of gaming are kept or used for the profit or gain of the person owning or occupying such building, enclosure, room, place or vehicle or of the person using such building, enclosure, room, place or vehicle, whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instrument of gaming or of the building, enclosure, room or vehicle or otherwise nowsoever.
All the ingredients necessary to constitute the shop of the 1st petitioner as a 'common gaming house' have been satisfied. It was contended by the learned Counsel for the petitioners that the search warrant issued by the District Superintendent of Police as per Ex. P-2 is highly defective and that the presumptions arising under the explanations to Section 63 Police Act do not arise and that the proceeding taken in pursuance of that warrant was void 'ab initio.'
There seems to be considerable force in the contention of the learned Counsel for the petitioners that the warrant is defective. But I am not prepared to accept his contention that the convictions of the petitioners should be set aside just because the search warrant is defective.
5. Exhibit P-2 is issued by the District Superintendent of Police, Bangalore City, under the provisions of Section 38, Police Act. In my opinion, this warrant does not comply with the requirements of the law. Section 38 contemplates the warrant being issued a particular police officer by name and designation above the rank of constable who is authorised to make the search.
In the present case, the warrant Ex. P-2 is not addressed to anybody. It only contains the name and designation of the officer who issued it. This omission seems to make the warrant highly defective. Section 38 does not authorise the issue of a search warrant to all police officers above the rant of a constable in general; nor can such a warrant be executed by a person who is in possession of it without being addressed to him. What it contemplates is that the warrant for execution should be issued to a particular police officer any name and designation and thus authorise him to conduct the search. In this connection, I would like to refer to the form prescribed for writing out the warrant. That form contemplates and provides that it should contain the name and designation of the police officer or other person or persons who have to execute the warrant. In this case, as pointed out already, Ex. P-2 is not addressed to any police officer in particular and that it is therefore defective.
Further it is seen that it does not bear the seal of the office from which it is issued or of the officer who issued it. This also renders the warrant defective. The learned Assistant Advocate General too did not seriously dispute about the warrant being defective for the reasons stated above. Under these circumstances, I hold that Ex. P-2 is a defective warrant.
6. The next point that arises for consideration is as to what the consequences are which ensue on account of the warrant being defective. It is not correct to say that the entire proceedings conducted in pursuance of this defective warrant should be held void 'ab initio' or that the irregularity & illegality in the search vitiate the trial and affect the conviction.
The only contention that the petitioners can put forth, as indeed it was put forward, as a result of the warrant being defective is that the presumptions arising under the explanation to Section 63 do not arise and the said proposition has to be accepted as sound in view of the decision reported in 'Sannappa v. Govt. of Mysore' 10 Mys L. J. 99 (A).
But it does not necessarily follow that the convictions should be set aside because even without the help of these legal presumption's, a conviction can be sustained if there is evidence that the petitioners are guilty of the offences with which they are charged & also on the basis of natural presumptions. So the point for consideration is whether there is other evidence in the case to Implicate the petitioners.
7. P. W. 3 is the Inspector of Police who conducted the search and P. W. 1 is another independent witness who speaks to what he saw in the shop of A-1. P. W, 3 has sworn that A-1 was writing the betting slip M. O. 2 on which the names of the horses that had to run on that day have been noted. He has also sworn that M. O. 3, the carbon paper, was used for writing the betting slip and that M. 0.1, the two Race Books were found there.
This evidence is corroborated by the evidence of an independent witness like P. W. 1. It is further seen from their evidence that some money was also found and that A-1 was also gaming. In view of the evidence of P. Ws. 1 & 3 & also from the fact that these various articles of gaming were found in the shop of A-1. it can safely be inferred that the shop was being used as a common gaming house. It is not possible or easy to get over the evidence of P. Ws. 1 and 3 so far as A-1 is concerned. It appears to me that the charge against him has been made out.
8. As regards A-2, however, I am of opinion that his conviction cannot be sustained. As stated already, the accusation against him is that he was gaming in a gaming house. He has been convicted under Section 63(2), Police Act. That section provides that whoever is found in any common gaming house gaming or present for the purpose of gaming shall be punished with imprisonment which may extend to six months and fine, etc.
There is no evidence worth the name to show that A-2 was gaming in the common gaming house that was being run by A-1 or that he was present there for the purpose of gaming. That A-2 was present in the shop of A-1 has no doubt been proved by the evidence of P. Ws. 1 and 3. This fact is also conceded on tile side of the second petitioner. But that is not sufficient in the circumstances of this case to hold that A-2 is guilty.
The only evidence as against A-2 is that he was holding a Race Book. Even on this point the evidence is not quite consistent. P. W. 1 is not definite as to whether the book that A-2 was holding was a Race Book. Moreover by the mere fact that A-2 was holding a Race Book it cannot be presumed that he was gaming or that he was present for the purpose of gaming.
P. W. 1 has further sworn that A-2 gave the name of some horse to A-1, but immediately thereafter he has stated that he does not remember if A-2 really gave the name of the horse or not. This portion of the evidence of P. W. 1 is not at all corroborated by the evidence of P. W. 3 nor is this fact mentioned in the mahazar Ex. P-1.
Thus it is seen that the evidence to implicate A-2 is not sufficient. If at all there is anything against A-2, it is mere suspicion, and suspicion, however strong cannot be the basis of a conviction. Therefore I am of opinion that the conviction of the 2nd petitioner cannot be sustained.
9. In the result, the conviction of the first petitioner and the sentence passed on him are confirmed and this petition, so far as he is concerned, stands dismissed. He will surrender to the bail and undergo the unexpired portion of the sentence. The conviction of the second petitioner and the sentence passed on him are set aside and the petition to that extent is allowed. His bail bonds are cancelled. The fine, if recovered, shall be refunded to him.