1. These two rules arise with reference to the conviction of the petitioners under Sections 3 and 4, Bengal Public Gambling Act (2 of 1867). As the points which require consideration are similar in the two cases they have been heard together. In both cases it was alleged by the prosecution that certain premises at Howrah had been searched in pursuance of warrants issued under Section 5 of the Act, and that some papers had been found in these premises which, according to the prosecution case, were 'instruments of gaming' used in connexion with cotton gambling. In Criminal Revision Case No. 296 of 1940 the petitioner was the occupier of the premises on which these instruments of gaming had been found, whereas in the other case (Criminal Revision Case No. 438 of 1940) not only the occupier but certain persons have been convicted who were actually found on the premises. In both these cases the Courts below appear to have based their judgments to a large extent upon the presumption which arises under Section 6 of the Act, to the effect that, when any instruments of gaming are found in a house, which has been entered or searched under the provisions of Section 5 it shall be evidence, until the contrary is made to appear that such house .... is used as a common gaming house.
2. Both the warrants in these cases were issued on 8th October 1939. They purport to be warrants under Section 5, Gambling Act, but they state that the Magistrate who issued them had reason to believe that the premises, in respect of which these warrants were issued, were used as places for the purpose of cotton gambling. It is argued with considerable force that, in view of the terms of Section 5 of the Act, it is not legal to issue a warrant under this section, if the Magistrate concerned merely has reason to believe that a house is used for cotton gambling, or indeed for any other kind of gambling as such. It must be remembered that under the Bengal Public Gambling Act, gambling, in itself, is not illegal, but the Act only makes punishable certain specific kinds of gambling, for instance, gambling in a common gaming-house. The definition of the expression 'to gamble' which is given in the Oxford English Dictionary is as follows:
To play games of chance for money, esp. for unduly high stakes; to stake money (esp. to an extravagant amount) on some fortuitous event.
3. There is a note in the following terms:
As the word is (at least in serious use) essentially a term of reproach, it would not ordinarily be applied to the action of playing for stakes of trifling amount, except by those who condemn playing for money altogether.
4. In the cases with which we are now concerned, the offences in connection with which the petitioners have been convicted relate to alleged gambling in common gaming-houses and in order to prove that a particular house is a common gaming house, the prosecution must establish that in the house in question instruments of gaming are kept, or used for the profit or gain of the person owning, occupying, using or keeping such house. Similarly, inasmuch as it is a somewhat serious matter for a Magistrate to search or authorise a search of a private house in connection with an allegation to the effect that gambling is taking place therein, the Legislature has provided by Section 5 that the authority concerned must upon credible information, and after such inquiry as he may think necessary, have reason to believe that such house is used as a common gaminghouse, or, in other words, as a house which is used by its owner or occupier for the purpose of making profit out of gambling transactions, which take place therein, and it is only if the house has been entered, or searched under a warrant, properly and validly issued, under the provisions of Section 5 of the Act, that the presumption which is raised under Section 6 can arise. In the present cases, I am of opinion that the warrants issued under Section 5, Bengal Public Gambling Act, were illegal, as they do not indicate that the Magistrate had any reason to believe that the houses, which he directed to be searched were used as common gaming-houses. In these circumstances, it was not open to the Courts below to draw any presumption under Section 6 of the Act in respect of the betting slips which were found on the premises. The position, therefore, is that, although certain betting slips were found in the houses which were searched, and even if it be admitted that these betting slips were instruments of gaming within the meaning of Section 1 of the Act, it would have to be proved by independent evidence that the owner or occupier of the houses derived a profit from the use of these instruments of gaming.
5. In connection with the first of these cases, namely, Criminal Revision Case No. 296 of 1940, there appears to have been independent evidence of this character, which was considered by the trial Court; and the learned Magistrate after discussing this evidence held that the accused made a profit out of the gaming which was carried on at his shop. The learned appellate Magistrate, however, did not consider this evidence, but based the conviction of the petitioner Jitendra Bhusan Das, entirely on the presumption arising out of Section 6 of the Act, which, in the circumstances of the case, does not apply. Further, in the case to which Criminal Revision Case No. 438 of 1940 relates, it would appear that any independent evidence, which there may have been relating to profit made by the owner or occupier of the house, was not considered at all by the trial Court. When the matter came before the lower appellate Court the learned District Magistrate appears to have relied mainly on the presumption arising under Section 6, and in dealing with the question whether or not the keeper of the house derived a profit from the alleged cotton gambling, his finding is somewhat vague. It is in the following terms:
In this case we may presume that the profit from the gambling is a subsidiary profit to the shop. The law does not however allow that people should run a gaming house even for a subsidiary means of livelihood. As the odds given were 9 to 1 we may suppose that there was a steady income of ten per cent. stretched over a reasonable period.
6. The learned Magistrate in support of this finding does not refer to any evidence from which it would be reasonable to infer that any profit was actually made by the keeper of the house. If any entrance fee were charged, it would of course be easy to draw such an inference, but it would not necessarily follow from the figures relating to the 'odds' that the owner of the house derived a profit, unless there was clear evidence to the effect that in fact he did so. It follows therefore that the decisions of the lower appellate Courts will have to be set aside in both these cases, which must be remanded for further hearing of the appeals in accordance with law in the light of the above observations. The appeals should be re-heard by the learned District Judge of Howrah, who after discarding any presumption under Section 6 of the Act, will consider whether, apart from any such presumption, the evidence on the record is sufficient to justify the convictions of the petitioners. The rules are accordingly made absolute. The order for stay in both the cases will continue.