1. This Rule was issued on the Chief Presidency Magistrate to show cause why an order convicting the petitioners under Section 45, Act 4 of 1866 (Calcutta Police Act), and sentencing them to pay a fine of Rs. 100 each, should not be set aside on the ground that there was no evidence to show that gaming was taking place at the time the accused were prosecuted, and also on the ground that there was no evidence to show that the premises where the gaming is alleged to have been taking place was a common gaming house within the meaning of Section 3 of the Act. The evidence is that a Sub-Inspector of Police sent one Banku Behary Pal to 28, Chutarpara Lane, with a slip of paper containing the names of 16 horses and with an amount of betting to be placed on horses and also a marked Rs. 5 note asking him to go inside the house and to bet there.
2. Banku says that he handed over the money to accused 2 Brojo Mohan Saha and that when he went there a barber was giving five annas to the accused Brojo Mohan and that the other accused was also there, and that when Brojo Mohan went to bring change he called in the Sub-Inspector, prosecution witness 2, R.C. Chowdhury. The Sub Inspector says that having sent in this man Banku with a marked note and a slip of paper they followed and found the accused Hari Charan Banerjee and Gonesh seated there and the accused Brojo Mohan standing in front of them. The latter dropped the five rupee note, the betting slip and also Re. 1 and one pice. No other incriminating articles were found in the premises except a racing -book Ex. 3. This is all the evidence on which the accused have been found guilty under Section 45 of Act 5 of 1866 (Calcutta Police Act). This evidence appears to me to be totally insufficient to show that the accused were found gaming in a common gaming house or present during any gaming or playing therein or were found present in the gaming house for the purpose of gaming. A common gaming house as defined in Section 3 is a house in which any iustruments of gaming are kept or used for the profit or gain of the person owning, occupying or using such house. There is no evidence that any instrument of gaming was kept or used in this house for the purpose of gaming. At the most what was found was that one of the accused accepted a five rupee note with instructions to put the money on certain horses. For all that we know it may have been intended to put this money on certain horses at the race course and in that case no offence has been committed. In any case, there was quite insufficient evidence to show that the place was a common gaming house.
3. The conviction and sentence are, therefore, set aside and the fine, if paid, will be refunded. The money found with the accused will be returned.