Banerjee and Wilkins, JJ.
1. The accused have been convicted under Section 4 of Bengal Act II of 1867 and sentenced to pay a fine of Rs. 10 each. The learned Sessions Judge recommends that the conviction and sentence be set aside on the ground that the house in which the accused were found is not shewn to be a common gaming house within the meaning of Section 1 of the Act.
2. To sustain a conviction under Section 4 of the Act, no doubt two thing have to be established, first, that the accused were found gambling, an (sic) second, that the place where they were found was a common gaming house within the meaning of the Act. The first is clearly established as has be (sic) found in the judgment of the Magistrate. As to the second, the mere fact (sic) gambling having taken place in the house on previous occasions was not, (sic) the Magistrate appears to think, sufficient to make it a common gaming (sic) house within the meaning of the Act, as the condition that it must be (sic) 'for the profit or gain of the person owning, occupying, using, or keeping ' it, though inferrible from it, would not be necessarily established by that fact. But if cowries are instruments of gaming within the meaning of the Act, the finding of cowries in the house upon search made under the warrant issued in this case will, under Section 6 of the Act, raise a rebuttable presumption that the house is used as a common gaming house. Now, though coins are not instruments of gaming, as has been held in Queen-Empress v. Vithal Bhaichand (1881) I.L.R. 6 Bom. 19 cowries are different from coins, and may (sic) treated as instruments of gaming, where they are used as counters, or as (sic) means to carry on gaming. See Queen-Empress v. Bala Misra (1897) I.L.R.(sic) 19 All. 311. And in the present case, having regard to the fact that (sic) were found both pice and cowries, and the latter were being used as (sic) gaming, we think the presumption under Section 6 of the Act may (sic) a presumption which is further supported by the fact of the house (sic) used for gaming on previous occasions.
3. We therefore decline to interfere in this case.