M.C. Ghose, J.
1. This is a petition under Sections 435 and 439, Criminal P.C. by two men, Profulla Kumar Mukherjee and J. E. Skipp. The case is that petitioner 1 is a respectable gentleman living at Hari Ghose's Street and petitioner 2 is a respectable European merchant residing in No. 5 Kyd Street in Calcutta, that on Saturday, 18th December 1937, at about 1.30 P. M. petitioner 1 while on his way to the races, stopped in front of the premises of petitioner 2 and gave him a lift in the car as they were both going to the races. It is alleged by the prosecution that while petitioner 1 was waiting in the car in Kyd Street and petitioner 2 had just taken his seat, witness Bamzan approached the petitioners and gave them a marked ten-rupee note as his betting money and went away. Then as the car was proceeding towards Chowrin-ghee along Kyd Street, the Police Officer, prosecution witness 1, put his hackney carriage across the road and stopped the car. Then he along with other men got down and searched the persons of the two petitioners and recovered the said marked ten rupee note, racing guides and bits of papers with names of horses and cash in all about Rs. 240. The petitioners were put under arrest on the charge that they were carrying on an illegal gaming on race horses in their private motor car. They were put up on trial before Mr. H. K. De and convicted under Section 11, Bengal Public Gambling Act, (Act 2 of 1867) and fined Rs. 50 each. The defence was that the petitioners were absolutely innocent of the charge; they denied having received any marked ten rupee note from witness Ramzan, that they were proceeding along Kyd Street towards the race course when they were stopped by the police in the middle of the road and were arrested and searched.
2. The judgment of the learned Magistrate gives no assistance in the matter. He says that no motive to make a false case has been suggested or proved. It is urged that it is not necessary to urge anything more than the police officers stand to gain a reward if they can get a conviction in a gambling case, and it is necessary in each case to consider the evidence carefully. The learned Magistrate merely says that in the evidence there is a substantial case against both the accused. The whole of the evidence has been read in this Court. The police officer deposes that he had certain information and acting on that information he gave a marked ten rupee note to witness Ramzan to bet with the accused men with the same and that he saw Ramzan go up to the motor car and hand over the note. Immediately after that he had the car stopped as it was proceeding and searched and found racing guides on both the accused .and a slip of paper with names of horses and amounts of bets, Ex. 3, and sums of money including the marked Rs. 10 note. The two search witnesses corroborate him that on search of the two accused racing guides and a certain sum of money and a slip of paper were found. Ramzan, the alleged informer, is the fourth witness. He makes out that he frequently bets with the accused and on the day in question he went with a ten rupee note, handed over to him by the police officer and paid the bet. He did not bet any money of his own. He says that he handed over the ten rupee note for betting on three horses but he did not name any horse on any of the races and he did not receive any slip as to the amount of his bets. He gave the reason that there was no time. It is the prosecution case that the accused men were unauthorized bookmakers; it is hardly worth credit that a bookmaker would receive a ten rupee note for bets on three horses without himself making a note of the sum or giving any token to the person who hands over the money. In this case betting notes were found with the accused men, and no tokens were found with Ramzan. The whole affair took place in Kyd Street near about the house of the Commissioner of Police. The accused men on their own showing are two gentlemen who were going in their own motor car to attend the races. Their having racing guides and notes on horses does not necessarily justify the inference that they were taking unauthorized bets. It is not unlawful for men to possess racing guides and notes on horses specially when they are on their way to the race course to attend the races. The evidence of Ramzan is not, in my opinion, sufficient to convict the two men. The fact that the petitioners picked up a Rs. 10 note which Ramzan dropped into their car does not by itself justify the inference that they were gambling in unathorized bookmaking. The rule is made absolute, the convictions are set aside and the fines, if paid, will be refunded.