Holmwood and Imam, JJ.
1. The question upon which this Rule was issued is whether a certain form of gambling which has become well-known in Calcutta as cotton-gambling comes within the provisions of Section 44 of Act IV of 1866 as amended by Act III of 1897 (B.C.).
2. We may say at the outset that this is a pure question of law and has nothing to do with the nature and effect of the particular form of gambling now under consideration, which may be, and in our opinion is, a most pernicious form of gambling, and yet may not be rendered penal by the Act under which these convictions have been held.
3. The offence which is created by Section 44 of the Calcutta Police Act is that of owning or keeping of being employed in a common gaming house, or advancing or furnishing money for the purpose of gaming with persons frequenting that house.
4. The question then that arises in this case is whether the premises in which the defendant carried on this cotton-gambling is 'a common gaming house' within the definition given in the Act. That definition is 'The words 'common gaming house' shall be taken to mean any house, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning or keeping such house, room or place, whether by way of charge for the use of the instruments of gaming, or of the house, room or place or otherwise' (Section 3, Act IV of 1866). By Act III (B.C.) of 1897 the following was added to the definition of 'common gaming house' in Section 3 of the Calcutta Police Act, 1866: 'or in which rain-gambling, that is to say, wagering on the occurrence or non-occurrence of rain, is carried on for the profit or gain of any such person as aforesaid.'
5. 'After the said definition was inserted: ''gaming' shall include rain-gambling; 'instruments of gaming shall include books or registers in which rain-gambling wagers are entered, all other documents containing evidence of such wagers, and anything used as a means of rain-gambling.' Clearly, therefore, by this enactment the Legislature declared that it was doubtful whether rain-gambling came within the scope of the Act before this amendment, and if it was doubtful there could be no conviction.
6. In the year 1889 the Bombay High Court had held in the case of Queen-Empress v. Narottamdas Motiram (1889) I.L.R. 13 Bom. 681 that Bombay Act IV of 1887 a similar Act to the Calcutta Police Act, did not apply to betting, and that there was no law in India which made betting illegal. There is a distinction between betting and gaming, and to constitute a game there must be a contest and an active participation of certain persons is also necessary--merely watching rainfall was no contest and no active participation taken by the bettors. Rain-betting is therefore not a game, and the place where it is carried on is not a 'common gaining house.' In the year 1904, seven years after the Amending Act III of 1897 dealing with rain-gambling had been passed, this ruling was considered by a Bench of this Court in the case of Hari Sing v. Jadu Nandan Sing (1904) I.L.R. 31 Calc. 542 : 8 C.W.N. 458 where it was held that the machine known as, 'little horses' was an instrument of gaming and that the act complained of was done in a public place.
7. These, as pointed out by Ghose J., were the only points for decision, and he held that the questions decided in the Bombay case which was much pressed before this Court was not in point, as it certainly is not, if the ratio decidendi is confined to the dicta which we have cited above from the placitum. But it was pointed out in a concurrent judgment by Stephen J. that the Bombay Court had gone further, and he felt bound to express doubts which he felt as to the soundness of the judgment in Queen Empress v. Narottam Das Motiram (1889) I.L.R. 13 Bom. 681.
8. We do not quite follow him in his dictum that a more satisfactory distinction between gaming and betting is to be found by considering the popular rather than the scientific use of the word 'game.'
9. He lays down, as all the cases have laid down, that the Gambling Act has nothing to do with betting or wagering which may be considered synonymous terms. It is concerned only with gaming. It would appear therefore that all forms of betting and wagering which do not depend on the manipulation of instruments of gaming are excluded from the Act. He clearly holds that apart from legislation rain-gambling is gaming if a complete apparatus is used for the purpose, otherwise it is not. Here we are in entire agreement with him, and we are not prepared to hold that the Bombay case so far as it decided that a special apparatus consisting of a gutter and (a rain gauge used for the purpose of gambling), and for no other purpose is not an instrument of gaming was righly decided.
10. But we cannot agree that the difference between gaming and betting depends on the event on which the bet is made. Betting must always be on an uncertain event, and betting in itself, apart from stakes being laid on a particular game or instrument of gaming in a public place, is not penal. Playing cards for money, whatever the game, is not penal unless the game is played in a public place. Playing with cards, dice or money is penal, if done in a public place, whether it is ostensibly for money or not. It may be that horse racing if it degenerates into nothing but an occasion for betting becomes gaming, but that is because the race-horses may as Stephen J. points out then probably become instruments of gaming. We do not say that they do, but the criminality if any lies not in beating but in placing stakes publicly upon instruments of gaming for the pecuniary benefit of those who keep the racing establishment.,
11. The offence as created by the Calcutta Act is a purely technical one and nothing has ever been done on this side of India to include any form of betting or wagering without instruments in the offence except in the single case of rain-gambling without a machine, and in order to include this extraordinary legislation has had to be undertaken to make the books and registers in which rain-gambling wagers are entered and all other documents containing evidence of such wagers instruments of gaming.
12. This they could not possibly be except for this express enactment, for evidence of a transaction cannot be the causa causans or instrument for carrying out that transaction.
13. This has a most important bearing on this case since as we shall presently see the only alleged instruments of gaming produced in this case are the books and papers, notice boards and lists of prices which furnish evidence of the gambling upon cotton quotations which is the subject of this rule.
14. The distinction between gaming and wagering is clearly laid down by certain English authorities, and though the English Statutes do not apply in this country the distinction between wagering and gaming which has never been defined in any Indian Act may very well be gathered from the considered findings of English Judges.
15. Gaming is playing at any game, sport, pastime or exercise, lawful or unlawful, for money or any other valuable thing, which is staked on the result of the game, i.e., which is to be lost or won according to the success or failure of the person who is staked. Reg. v. Ashton (1852) 1 El. And Bl. 286 Lockwood v. Cooper  2 K.B. 428. Wagering which includes betting is making a contract on an unascertained event past or future tin which the parties have no pecuniary interest other than that created by the contract) by which the parties are to gain or lose according as the uncertainty is determined one way or the other: Carlill v. The Carbolic Smoke Ball Co.  2 Q.B. 484. The general effect of the legal meaning of these terms as interpreted by the Judges is well set out by Mr. W.F. Craies, the well-known authority on the Interpretation of Statutes, whose remarks we may adopt as expressing our own view on the subject. 'It is somewhat difficult,' he says, 'exactly to define or adequately to distinguish these terms of allied meaning. The word 'game' is applicable to most pastimes and many sports irrespective of their lawful or unlawful character. 'Gaming' is now always associated with the staking of money or money's worth on the result of a game of pure chance or mixed skill and chance, and 'gambling' has the same meaning with a suggestion that the stakes are excessive or the practice otherwise reprehensible, while wager and wagering are applied to money hazarded on any contingency in which the person wagering has no interest at risk other than the amount at stake. Betting is usually restricted to, wagers on events connected with sports or games, and 'lottery' applies to speculation to obtain prices by lot or chance.'
16. We mention this last because reference has been made at the bar to the case of Anonymous Reference by the Recorder of Rangoon (1869) 12 W.R. Cr. 34 dated 28th July 1869, upon Act III of 1867, an Act which contained similar provisions to Act IV of 1866. There it was held that lottery tickets by reference to which it is to, be decided whether the holder or purchaser wins the whole or any part of any stakes are instruments of gaming similar to cards. This is not a judicial decision inasmuch as no specific case was before the Court, but any dictum of Barnes Peacock C. J., and Dwarka Nath Mitter J. carries with it weighty authority. But all that this amounts to is that a lottery is a game inasmuch as an apparatus (usually a barrel) containing numbers corresponding to the tickets purchased by the share-holders is used for drawing and the drawers are players who are on the same footing as persons drawing from a pack of cards to see who gets the highest or lowest card. But we may accept this dictum without in any way impugning the facts of this case.
17. So it was held in Tollett v. Thomas (1871) 6 Q.B.514 that a 'Pari mutuel' machine for registering bets is an instrument of gaming, but it has never been held that a betting book or a notice in the newspapers giving the odds are instruments of gaming though it has been held under a special Statute which has no application to India that boards showing the odds at race courses are instruments of gaming. Now what are the facts here? People are invited to bet on the odds offered by the defendant, who is pro tanto a bookmaker, on certain figures. They can choose any figure from 1 to 10 or any combination of figures and they can wager any sum from 2 annas up to Rs. 10, receiving a voucher in return on which is entered in one column the amount they have paid and in an opposite column the amount they will win if the result of the quotations for the day divided by 5 ends in the figure they have selected. Exhibit 2 is one of these voucher books and in the examples we have seen as much as 40 to 1 is given by the bookmaker and the system seems perfectly open and above board. Five quotations appear to be received daily, two from New York and two from some other American market, and there is one quotation which is known as 'spot,' but this is immaterial as they are all of a similar Character. At twelve o'clock daily the result of the addition of these five quotations divided by 5 is posted on a board and those who have betted on the winning digit get the sum marked on their voucher. The odds given are so liberal that at first sight it would appear a very advantageous business for the bettors, but it is alleged in Exhibit 15, an extract from the Empire newspaper dated 17th February 1912, that wholesale cheating goes on in this respect, the winning number being surreptitiously changed if too much money has been laid on it.
18. How far these allegations are true we are unable to say, but the allegations as well as the article in which they are exhibited are wholly irrelevant for the purposes of this case.
19. What is charged in the newspaper is cheating and there is no charge of cheating before us, and it has been held on the highest authority in England and India, the Judicial Committee of the Privy Council in the case of Ram Lall Thakoorseydas v. Soojunmull Dhanumall (1848) 4 Moo I.A. 339 that the question, whether frauds might be committed or attempted from the desire of gain in such speculations was irrelevant if the wager in question is not in itself illegal and that it was for the Legislative Council in Calcutta to consider how far it may be conducive to the benefit, of our Indian Empire to legislate on English line against such wagers.
20. The judgment was pronounced by Lord Campbell in February 1.848, and appears to have been speedily followed by the enactment of Act XXI of 1848, entitled an Act for avoiding wagers, which was passed fry the Governor-General in Council on the 10th October.' 1848.
21. This Act opens with the words 'Whereas it is expedient to discourage gaming and wagering for money,' thus making a clear distinction between the two and it proceeds to make all agreements by way of gaming or wagering null and void. Its only other section abolishes the trial of issues on feigned wagers for ascertaining any disputed facts.
22. Having clearly recognised this distinction the Legislature in India has made gaming in public places penal and has intentionally, we must presume, refrained from passing any penal legislation against wagering or betting.
23. Finding that the system pursued in this cotton-gambling appeared to be pure betting we at an early stage of the hearing asked learned Standing Counsel to have produced before us the exhibits to which roman figures are attached which were alleged by him to be instruments of gaming. It was his first contention that the house was an instrument of gaming, but this proposition carries its own refutation on the face of it. The house is the place which is alleged to be a common gaming house and it has to be proved that (i) instruments of gaming were supplied for money or money's worth in that place, and (ii) that that place is a public place: now the alleged instruments of gaming are Exhibits I to IX and they may be briefly described as follows:
Exhibit I.--A tin board hung up in the room containing the day's cotton figures. This is no more an instrument of gaming than the original telegram or an extract from a newspaper would be.
Exhibit II.--A similar wooden board hung up outside the premises in the open street and not challenged by the Police authorities for several months.
Exhibit III--Is a canvas signboard showing the name of the firm.
Exhibit IV--Is a board showing the odds on a, series of figures.
Exhibit V--Is a small board for writing the figure of the day. When seized this had on it 1079/2
Exhibit VI--Is a small tin ticket with 9 the winning digit on it.
Exhibit VII--Is the board giving the odds on place betting.
Exhibit VIII--Is a board giving the odds on mixed double and triple events.
Exhibit IX.--A box containing Rs. 410.
24. Every one of these things is exactly what may be found on the stall of any bookmaker at the races and though such boards may have been declaimed illegal in England they have certainly not been made penal by any Statute in force in Calcutta. What the effect of the introduction of the word 'wagering' into the Bombay Act may be it is not for us to enquire.
25. They are mere evidence of gambling and are on exactly the same footing as the books and papers used for recording the bets.
26. In the case of rain-gambling these have been specially made instruments of gaming by the Legislature in Act III (B. C.) of 1897, and it is therefore clear that they are excluded from the operation of the Police Act in the case of cotton-gambling. To sum up therefore we find that this cotton-gambling is not a lottery, it is not a game or contest and it is not as form of gambling in which instruments of gaming are kept or used for the profit or gain of the person owning or using the place.
27. It is betting pure and simple, and if it gives rise to all the evils which are ascribed to it by the learned Magistrate, in his very thoughtful judgment, it is as Lord Campbell said, for the Legislature to consider-what measures should be taken to put a stop to it. Under the law as at present constituted we are unable to find that any offence Las been committed within the meaning of Section 41, Act IV of 1866, as amended by Act III (B. C.) of 1897, and we accordingly make the rule absolute, set aside the conviction and sentence and direct that the petitioner be acquitted and released.
28. This judgment will govern Rule No. 637 which was issued on the same grounds.