1. The petitioner Puran Mull Biwani has been convicted under Section 44,. Act 4 of 1866, and sentenced to pay a fine. The offence complained of against him was under the first part of Section 44, viz., that he being the owner or occupier of a room kept or used it as a common gaming house. As I understand the case no question of permitting any other person to keep or use the room as a common gaming house, under the latter part of the section, enters into the case.
2. The fact that a note book (Ex. 3) was found in the room in which the petitioner's name appeared in print on the pages in the absence of any evidence as to the contents of the notebook (for the police officer says that he could not read the Hindi writing in it and did not have it translated) is very poor evidence to establish that the notebook was an 'instrument of gaming.' This is a serious difficulty in the way of the prosecution.
3. A still greater difficulty in upholding the conviction arises when the definition of 'common gaming house'' is considered. The definition as given in Section 3 of the Act plainly shows that the room must be one in which instruments of gaming are kept or used for the profit or gain of the person owning or keeping the room whether by way of charge for the instruments or for the room or otherwise. The learned Magistrate in his explanation has stated the following:
It was clear from the facts and the circumstances of the case that the room in question was kept and used for the profit and gain of the man who kept or used it. It is not always possible to get direct evidence of that in such cases. It has been proved that the room was known as the accused's gadi.
4. Now, I do not find any evidence on the record of 'profit or gain' which is the cardinal constituent of the definition of a common gaming house.' It is quite true that it is often very difficult to get direct evidence of this fact, but at the same time it is not enough to satisfy the requirements of the law that two witnesses (P. W's. 2 and 3) should have deposed that it was the accused's gadi. The matter should have been explained further and evidence should have been given, if it was at all possible to do so, to make out this element of 'profit or gain' as against the petitioner.
5. As the evidence shows it must be held that it is wholly insufficient for the petitioner's conviction which as well as the sentence passed on the petitioner, are accordingly set aside.
6. The rule is made absolute. The fine, if paid will be refunded.