1. In this case the accused has been convicted under Section 44 Calcutta Police Act, for owning and keeping a common gaming, house, and fined Rs. 50 each. This rule has been issued on the first four grounds mentioned in the petition of which two are of much importance. The first is that the search warrant purported to have been issued under Section 46 of the Act is defective and therefore no presumption should have been raised by the Magistrate under Section 47 of the Act. The second is that the learned Magistrate should not have used the admission made by the accused's brother in another case, to the effect that the house was a common gaming-house. We think that both these objections should prevail.
2. As to the first objection it is unfortunate that since the ruling in Walvehar v. Emperor A.I.R. 1926 Cal. 966, the form of the warrant has not been changed. In the one issued in the present case the words 'there is cause to suspect' still exist. According to the authority cited the words 'has reason to believe' should have been substituted in their place. The result is that, leaving out of consideration the finding of the articles in the house and the consequent presumption under Section 47, there is no legal evidence that the house was a common gaming-house. With regard to the second ground of objection; there can be no question that the admission of the accused's brother in another case should not have been used against accused. The result therefore h that the foundation of the finding of the Magistrate is removed and we have to consider whether on the evidence in the case the conviction can be sustained. There were two witnesses examined in the case. The first witness is the Inspector who raided the house on the strengh of the warrant and arrested 22 people who were gambling in the house. The two accused managed to escape. The second witness is the informant who deposes to have visited the accused's den and played there with dice. This evidence is not sufficient to establish what according to Section 3, Calcutta Police Act (4 of 1866), must be found to constitute a common gaming-house, A 'common gaming house' is defined to mean any house...in which cards etc. are kept for the gain or profit of the persons owning or keeping such a house whether by way of charge for the use of the instruments of gaming or of the house or otherwise. In this case there is no evidence that this house was kept for the purpose of profit or gain by the persons owing or keeping the house The evidence therefore falls short of proving that the house was common gaming house and that the accused were the owners or keepers of the house. Though the matter is a serious one and we have strong suspicion that the accused are guilty of the offence charged, we do not think that this is a case in which we should order a retrial and give an opportunity to the prosecution to adduce further evidence.
3. The result is that this rule is made absolute and the conviction and the sentence passed upon the petitioners are set aside, The fine if paid will be refunded.