1. We concur with the Judge that the order of the Deputy Magistrate of Ranaghat, dated the 7th September 1876, in the above-mentioned case is illegal, and must be quashed.
2. One of the questions raised before the Judge was, that Beng. Act II of 1867 has not been extended to Ranaghat in accordance with the provision of Section 11 of that Act. Upon this point the Judge has expressed no opinion, and we have before us no materials from which we can say it has been extended to Ranaghat. But taking it for granted that it is applicable to Ranaghat, we still think the conviction in this case cannot stand.
3. It is clear that proceedings were commenced by an act on the part of a police officer, who, under Section 5 of the Act, was not authorized to do it. The Notification referred to in the explanation of the Deputy Magistrate submitted to the Judge would make the deputation of a Sub-Inspector of Police for entering and searching an alleged gaming-house legal, but he must receive his authority for that purpose from a Magistrate of a District or a District Superintendent of Police. In this case such authority was not given.
4. This being so, we cannot say that there is any evidence on the record, that the house which was entered and searched was a gaming-house within the meaning of the Act. We have gone through the record, and we find no evidence bearing upon this matter. It cannot, we think, be presumed under Section 6 of the Act, because that presumption only arises when the proceedings are authorized by the preceding section, which, as we have observed before, was not the case here.
5. The order of the Deputy Magistrate, therefore, must be quashed; the fines, if realized, must be refunded; and the properties, which have been declared to be forfeited to Government, must be restored to the parties from whose possession they were taken.