1. In this case the petitioner has been convicted under Sections 3 and 4, Public Gambling Act (Act 2 of 1867). It is said that he was the owner of a common gaming house. The expression 'common gaming house' has been defined in Section 1 of the Act in the following terms:
'Common gaming house' means any house .... in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house .... whether by way of charge for the use of such house.... or otherwise howsoever.
2. Obviously therefore in this case the onus lay heavily on the prosecution to show that the instruments of gaming were kept in the house for the profit or gain of the petitioner.
3. It is said that certain instruments of gaming, such as a race-book, were found in the house, and in this connexion reliance is placed on Section 6 of the Act. Under this section the fact that certain race-books and betting slips were found in the house might be treated as evidence. But this section would not make the evidence on this point conclusive. The judgment contains no finding to the effect that the petitioner's house was a common gaming house, and, in my view, the materials upon which reliance has been placed are quite insufficient to show in fact that the house had been used by him for this purpose.
4. The rule must therefore be made absolute. The order made by the learned Magistrate dated 10th July 1940, is set aside and the fine, if already paid, must be refunded.