R.N. Dutt, J.
1. This re visional application is directed against an order of conviction and sentence under Sections 3 and 4 of Act 32 of 1957.
2. The prosecution case is as follows:
3. Petitioner No. 1, Muralidhar Garodia, is a lessee in respect of a Gaddi at 68, Cotton Street, Calcutta. On certain information that the gaddi in question was being used as a common gaming house, the officer-in-charge of Bara Bazar Police Station searched the gaddi on July 22, 1962 and arrested the petitioners while Gambling in Rains and seized some instruments of gaming, some cash money and some documents.
4. Petitioner No. 1 was thereafter tried under Sections 3 and 4 of the said Act and the other petitioners under Section 4 of the said Act. The petitioners pleaded not guilty. Their defence was that there was no gambling in the gaddi where normal business in silver was transacted. The learned Magistrate has convicted petitioner No. 1 under Sections 3 and 4 of the said Act and sentenced him to a fine of Rs. 100, in default, to simple imprisonment for two weeks under Section 3. No separate sentence was passed under Section 14. The learned Magistrate also convicted the other petitioners under Section 4 of the said Act and sentenced each of them to fine of Rs. 100 in default to simple imprisonment for seven days. He further directed the cash money seized, to be confiscated and the other articles seized to be destroyed.
5. Mr. Talukdar, who appears for the petitioners, first submits that the conviction cannot be sustained as it has not been proved that the Gadi was a 'common gaming house' as defined in Section 1 of the Act. 'Common Gaming House' includes a room, here the gadi in question, where instruments of gaming are kept or used for the profit or gain of the person owning, occupying or using the room whether by way of charge for the use of the instruments of gaming or of the room or otherwise howsoever. Mr. Talukdar argues that there is no evidence that the alleged instruments of gaming were kept or used for the profit or gain of petitioner No. 1. He refers to the decision in Abdul v. Emperor : AIR1943Cal121 . Henderson, J. held in that case that for a conviction under Section 3 of Act II of 1867 which is now replaced by Act 32 of 1957, the learned Magistrate should first find that the premises in question were being used as a Common Gaming House and in order to establish this point the prosecution would have to prove that the instruments of gaming found in the place were kept or used for the profit of the accused. There is of course no direct evidence in this case to prove that the instruments of gaming were kept or used for the profit or gain of petitioner No. 1. Mr. Mukherjee, who appears for the State, submits that there is a presumption under Section 6 of the Act that the room was used as a Common Gaming House and the persons found therein were there for the purposes of gaming. He submits that instruments for gaming were found in the room when the room was searched in accordance with Section 5 of the Act and as such there is a presumption that the room is Common Gaming House and this presumption has not been rebutted. Mr. Talukdar relies on the observation of Handerson J., that Section 6 merely provides that the find of the instruments of gaming shall be evidence that the premises are used as a Common Gaming House and it is for the Magistrate to say whether he was prepared to come to such a finding or not. The Trying Magistrate came to no such finding in that case. But in this case we find that the learned Magistrate has come to a definite finding that the gaddi in question was used as a Common Gaming House, I should add that Mr. Talukdar has not argued that the search was not in accordance with the provisions of Section 5 of the Act. If the search is in accordance with Section 5 and if as a result of the search instruments of gaming are found the presumption under Section 6 arises. This conclusion finds support in the case of Gaugadas Banerjee v. Emperor : AIR1930Cal365 which is a case under Act II of 1867, and in the case of Ah Yung v. Emperor : AIR1930Cal369 which is a case under the Calcutta Police Act containing similar provisions. Here, as I have said the search was in accordance with Section 5 of Act XXXII of 1957 and as a result of the search instruments of gaming have been found in the gaddi. A presumption, therefore, arose under Section 6. There is no evidence on record from which the contrary is made to appear and the learned Magistrate has come to the finding that the gaddi was being used as a Common Gaming House at the relevant time. There is, therefore, no reason to hold, that the 'Gadi' has not been proved to be a 'Common Gaming House'.
6. Mr. Talukdar next argues that the cash money of Rs. 1080.82 np. cannot be forfeited in law and the order of confiscation should be set aside. He refers to the decision in the case of Sukumar Bose v. Emperor : AIR1948Cal116 . That was a conviction under Section II of Act II of 1867. Section 8 and Section 11 of the Act were compared and it was said that there was difference in the two sections, i. e. whereas in Section 8 a clear provision was made for conversion of securities for money and other articles seized and for the disposal of the proceeds thereof with all cash monies seized therein, in Section 11 no mention whatever is made of monies. It was, therefore, held by a Division Bench of this Court that in case of a conviction under Section 11, there can be no forfeiture of the money seized .from the person of the accused. This is, however, not a case under Section 11 of the new Act corresponding to the old Section 11, but this is a'-conviction under Sections 3 and 4 of the Act. Section 8 of the new Act corresponding to Section 8 of the old Act makes provision for disposal of cash money seized in the Common Gaming House. Under the powers given in that section the trying Magistrate has jurisdiction to pass an order forfeiting the money seized. Moreover, even apart from the special provisions of the Act XXXII of 1957 the trying Magistrate has powers to pass appropriate orders in respect of such cash money under Section 517 of the Code of Criminal Procedure, This finds support in the decision in Re : Narasimha Chattiar A.I.R. 1944 Mad 125.
7. There is, therefore, no substance in this revisional application which is dismissed and the rule is discharged.