1. In this case, the petitioner has been convicted under Section 45, Calcutta Police Act (Bengal Act 4 of 1866). It is said that he was found in a common gaming house which was Used for the purpose of gambling in connexion with horse-racing. In the case of this sort, the onus clearly lay upon the prosecution to show that the house in which the petitioner was found was a common gaming house as denned in Section 3 of the Act. In order to satisfy the requirements of this Section, it would be for the prosecution to show that instruments of gaming were kept or used in that house for the profit or gain of the person owning, occupying using or keeping such house.
2. It is said, that the petitioner was found with Ex. 2 which is a slip of paper containing certain figures and the names of race-horses and also with a sum of money in his pocket. I have examined the slip of paper; and, in my opinion, it cannot be said that it fulfils the requirements of the definition of 'instruments of gaming' under Section 3 of the Act nor is there any evidence on the record to show that the slip in question was in fact an instrument of gaming or that the petitioner was using it for the purpose of profit or gain. Similarly, there is DO evidence to indicate that the money found on the person of the petitioner was for the purpose of gambling. Having regard to the considerations mentioned above, this rule must be made absolute and the conviction of the petitioner set aside. The fine if already paid and the money found on the person of the petitioner must be refunded.