1. Of the several grounds upon which the conviction of the petitioners which is under Section 45, Calcutta Police Act, (4 B.C. of 1866) in this case has been assailed, none is of any substance except one which in my judgment goes to the very root of the matter and is positively fatal.
2. The learned Magistrate in dealing with the question which is the primary question in the case, namely, whether the place can be called a 'common gaming house' has observed:
Section 47 of the Act lays down that if gaming instruments are found in a house, the presumption is that it is a common gaming house.
3. This proposition is entirely correct provide I the finding of the instruments is in conformity with the provisions of Section 46, as Section 47 itself provides for by the use of the words 'under the provisions of the last preceding section.' To go back to Section 46 for a second, the search as a consequence of which the find takes place must be of the place, etc., in respect of which the search warrant was issued under that section. In the present case, the search warrant was for premises No. 71/4 Bentinck Street and and the search was of premises No. 71/5 Bentinck Street. This is not a technical defect but a matter of substance, the law attaching serious consequences and importance to the discretion that a Magistrate or the Commissioner of Police exercises in the matter of issuing a search warrant under this section. The result is that what would hold good in respect of premises No. 71/4 cannot hold good as regards 71/5 unless of course the latter is included in the former of which, however, there is no evidence.
4. Apart from the presumption under Section 47 upon which the learned Magistrate has relied, the evidence aliundi does not satisfy the requirements of the definition of a common gaming house as given in Section 3 of the Act.
5. The result is that the convictions of the petitioners must fail. The rule is made absolute. The petitioner's convictions and sentences are set aside. The fines, if paid should be refunded.