1. This is an appeal filed by the Government through the Assistant Advocate General against the order of acquittal passed by Magistrate first class Srinagar.
2. Accused No. 1 was challaned under Section 3 of the Gambling Act for owning or keeping a common gaming house and other respondents under Section 4 being found in a common gaining house.
3. It appears that the District Superintendent of Police, Srinagar, received credible information that the hotel owned by accused No. 1 is used as a common gaming house and a number of persons actually go there for the purpose of gambling. The District Superintendent of Police accompanied by Mr. Tek Chand, Munsif magistrate first class, Srinagar and some police officers entered the hotel and the accused persons were arrested from inside. The place was searched and instruments of gaming were seized of which an Inventory was prepared and signed by the District Superintendent of Police. The accused persons arrested in the hotel were sent up for trial. The trial Magistrate has acquitted the accused on the ground that the inventory of the instruments of gaming was not prepared by the District Superintendent of Police in his own handwriting and he has further held that the search was not conducted by the District Superintendent of Police personally and as the provisions of Section 5 of the Gambling Act were not strictly complied with presumption under Section 6 on the basis of the recoveries could not be raised against the accused. The accused were accordingly acquitted, and the Government has filed the present appeal.
4. It has been argued by the Assistant Advocate General that the judgment of the trial court does not proceed on a correct appreciation of law and as such should not be sustained. It is con-tended that it was not necessary for the District Superintendent of Police to have prepared the list of the instruments of gaming in his own hand and Section 103, Criminal P. C. was not applicable to the search conducted under the Gambling Act.
5. Section 5 of the Gambling Act No. 18 of 1977 provides that if inter alia an officer Invested with the full powers of a Magistrate or the District Superintendent of Police or a Police Officer higher in rank upon credible information and after such enquiry as he may think necessary, has reason to believe that any house or room etc. is used as a common gaming house, he may either himself enter or by his warrant authorise the specified police officers to enter such house or room etc. or may either himself take into custody or authorise such other officer to take into custody all persons whom he or such officer finds therein, and further may search or authorise such officer to search all parts of the house, room etc., and may seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search.
6. This section authorises the District Superintendent of Police to search the house but it does not provide as to how the search has to be conducted. Provisions in regard to search to be made by Magistrates are contained in Sections 102 and 103, Criminal P. C. and by Police Officers in Section 165, Cr. P. C.
7. The question for consideration is whether or not the provisions of the Criminal Procedure Code relating to searches are applicable in cases of searches made under the Gambling Act. Section 6, Criminal P. C. lays down that (1) all offences under the Ranbir penal Code shall be investigated, Inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be Investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
8. Section 5 of the Gambling Act authorises me District Superintendent of Police to search the house on receipt of credible information that the house is used as a gaming house but does not provide as to how the search has to be conducted, In the absence of any provision regulating the manner in which the search has to be conducted, the provisions of the Criminal Procedure Code relating to search will apply.
9. Rulings have been cited at the bar to show that Section 103, Cr. P. C. will not apply to searches made under the Gambling Act. We have gone through all these rulings and it appears that the provisions of Section 5(2), Criminal P. C. have not been brought to the notice of their Lordships which make the provisions of the Code applicable in case there is no provision regulating the manner in which search has to be conducted in the special Act. As pointed out above in the Gambling Act of our State there is no provision as to how the search has to be conducted by a Police Officer, so the search has to be made under the provisions of the Criminal Procedure Code.
10. Under Section 165, Cr. P. C. Police Officers are authorised to conduct a search and the general provisions as to searches contained in Section 102 and Section 103 are made applicable to a search made under Section 165.
11. The District Superintendent of Police in the present case went himself along with some Police Officers and a Magistrate to the hotel and conducted the search. The instruments of gaming were seized and an inventory was prepared by Mr. Tek Chand, Magistrate first class, which was subsequently signed by the District Superintendent of Police. The question for consideration is whether the District Superintendent of Police was required to make the inventory of the seized articles in his own hand-writing under the provisions relating to search in the Cr. P. Code. The search had to be conducted by the District Superintendent of Police in accordance with Section 165, Cr. P. Code and under the general provisions of Section 103 of the Code. In Section 103 Clause (2), Criminal P. C. it is provided that the search shall be made in the presence of the witnesses and a list of all things seized in the course of such search and of the place in which they are respectively found shall be prepared by such officer.
In our view the words 'shall be prepared by such officer' do not mean that the officer should prepare the list in his own hand-writing. If such a narrow interpretation is placed on these words then a typed list or a list prepared at the dictation of the Police Officer would be completely excluded. This could not be the intention of the legislature. The words 'shall be prepared' would mean that the officer conducting the search should under his personal supervision, control and direction prepare the inventory of the articles seized during the search. The trial Magistrate, therefore, has erred in holding that the search was not according to law inasmuch as the list was not In the hand-writing of the District Superintendent of Police.
12. The next question for consideration is whether the District Superintendent of Police who entered the house under Section 5 of the Gambling Act conducted the search himself. The evidence of Mr. Tek Chand shows that he got the Inventory prepared and at a later stage it was signed by the District Superintendent of Police. It appears, therefore, from the evidence that the search was not conducted under the direct supervision and control of. the District Superintendent of Police who was the only competent officer to conduct the search under the Act. The search, therefore, has not been conducted in the manner provided by law. In these circumstances the trial Magistrate has rightly held that no presumption . oil the basis of the recoveries can be made against the accused under Section 6 of the Gambling Act,
13. This appeal is, therefore, dismissed. The bail bonds of the respondents shall stand cancelled.