1. The petitioners have been convicted under Section 3 and 4, Bengal Public Gambling Act (Act 3 B.C. of 1867), petitioner 1 under Section 3 and air the other petitioners under Section 4 of the said Act. The question for consideration in this rule is whether the convictions are supportable in so far as they are based upon finding that the place where gambling used to go on was a common gaming house within the meaning of the Act. Offences under Sections 3 and 4 have for their foundation as one of the ingredients the fact that the place where gaming goes on is a common gaming house within the meaning of the definition given in Section 1.
2. As regards this matter the learned Sessions Judge held in the first instance that:
petitioner 1 or those who were interested in the venture along with him have not been proved by any evidence to have either drawn commission or worked so as to ensure more or less certain profits.
3. He found, however, that instruments of gaming were found in the premises which were in the occupaton of petitioner 1, who is said to be the lessee of the premises; and as those instruments were found on a search purporting to have been carried out under the provisions of Section 5 of the Act, he applied to the case the presumption provided for in Section 6 thereof. The said presumption is to the effect that when instruments of gaming are found in a place searched in accordance with a warrant issued under Section 5, the place is to be regarded as a common gaming house until the contrary is proved. The question, therefor, is whether the presumption upon which the learned Judge has relied really arises in the present case.
4. The search warrant that was issued under the provisions of Section 5 of the Act did not state that the premises were used as a common gaming house; but it was stated therein that the user of the premises was for unauthorized race-gambling. The learned Sessions Judge held that user for unauthorized race-gambling and user as a common gaming house mean one and the same thing. The reasoning upon which the learned Sessions Judge came to that conclusion is that unless the premises were a common gaming house the Magistrate could not issue the search warrant; or, in other words, that if the premises were used merely for unauthorised racegambling without it being shown that they constituted a common gaming house the learned Magistrate could not have very well issued the search warrant. The learned Sessions Judge has observed further that it must be assumed that the Magistrate was aware of the law. On an assumption of this character the learned Sessions Judge came to the conclusion that the search warrant must have been issued because the Magistrate was satisfied that the premises were a common gaming house as defined in Section 1 of the Act.
5. I am clearly of opinion that in the process of reasoning that the learned Sessions Judge has adopted he has begged the very question he had to determine. The question is whether the presumption under Section 6 arises in the case. The law says that it will arise if the warrant authorized the search on the footing of the premises being a common gaming house, and when the search held under warrant has resulted in a find of instruments of gaming. The reason of the presumption is that where the Magistrate is satisfied on the materials before him that the premises constitute a common gaming house, and there is the find, there is a prima facie case. The argument that because there is a find and because the search was in execution of a warrant it should be taken that the Magistrate must have been satisfied that the premises were a common gaming house, and that therefore the Court which tries the case will also take it that they were a common gaming house, is to ignore the reason of the presumption which is a statutory presumption and to proceed on a wholly different line and create a new rule of evidence altogether.
6. The presumption of law arises only in the peculiar circumstances that are mentioned by the statute itself. In the present case the requirements of Section 5 of the Act have not been strictly complied with, and the Magistrate has not said anywhere in the proceedings that in issuing the search warrant he was satisfied that the premises were used as a; common gaming house. In circumstances such as these, the presumption mentioned in Section 6 of the Act, in my opinion, does not arise. If this presumption does not arise, as I hold that it does not, and as there is no evidence showing that the premises were kept for the profit or gain of petitioner 1 or his confederates, as the learned Sessions Judge has himself observed in his judgment, it must be held that it has not been established that the premises were a common gaming house. The petitioners' convictions therefore fail.
7. The rule is, accordingly, made absolute.
8. The convictions of and sentences passed upon the petitioners are set aside, and it is ordered that the fines if. paid be refunded.