1. This is a rule calling upon the District Magistrate of 24-Pergannas to show cause why the conviction of the petitioners under Section 3, Bengal Act, 2 of 1867, should not be set aside. It is extremely regrettable to find that, although the case has been tried three times, apparently neither the learned Magistrate nor the officer responsible for the prosecution took pains to see that what it was that the prosecution had to establish. There is a clear finding of fact that some game of chance was being played for money in the premises concerned. There is a further finding that petitioner 3 was the lessee of the premises and that the other two petitioners were in charge of the gaming. Upon those findings the petitioners have been convicted. But the learned Magistrate omitted to notice that he must first find that the premises in question were being used as a common gaming house within the meaning of the definition in Section 1. In order to establish this point, the prosecution would have to prove that the instruments of gaming found in the place were kept or used for the profit of petitioner 3. The meaning of this expression is further explained in the definition, The learned' Magistrate has come to no such finding and I am quite satisfied that there is no evidence which would justify it.
2. It had to be conceded by Mr. Ahmed that there is no direct evidence whatever. Reliance was placed upon the provisions of Section 6. For this purpose it is to be noted that the house was searched by P.W. 9 who at the time was the Additional Superintendent of Police of the District. I shall therefore assume that an Additional Superintendent of Police is a District Superintendent within the meaning of Section 5. Before Section 6 can be invoked in aid of the prosecution, it must be established that before the search this officer had reason to believe that the premises in question were used as a common gaming house. He gave evidence to the effect that he had reason to believe that gambling was going on there. It is thus clear that he him-self was not prepared to say that he had reason to believe that the premises in question were being used as a common gaming house. There are therefore no materials on the record which would entitle the prosecution to use Section 6. Then in the second place, Section 6 merely provides that the finding of the instruments of the gaming shall be evidence that the premises used is a common gaming house. It would be for the Magistrate to say whether he was prepared to come to such a finding or not. The learned Magistrate, who tried this case, made no attempt to come to any such finding. In view of the previous history of the case, I shall certainly not order a retrial. The rule is accordingly made absolute, the conviction and sentence are set aside and the fines, if paid, will be refunded. The order forfeiting the money found in the cash box and other articles is also set aside.