Emperor vs Asgaralli Mahammedalli Heralwala

John Beaumont, Kt., C.J.—This is an application in revision against the conviction of the applicant u/s 4 of the Bombay Prevention of Gambling Act of 1887.

The applicant was convicted by the Resident Magistrate, First Class, Godhra, and the question of law which arises is whether a special warrant can be issued u/s 6 of the Gambling Act by the Additional Superintendent of Police of Broach and Panch Mahals. The position of such Additional Superintendent of Police is this. Originally Broach and Panch Mahals were separate revenue districts, but in 1933 they were amalgamated. But, as appears from the Government Resolution of January 3, 1934, it was not considered advisable to amalgamate the two police charges, and accordingly it was provided that the Panch Mahals should be retained as a separate police charge under the control of an Additional Police Superintendent; and that position is still maintained.

Now an Additional Superintendent of Police can be appointed by Government under the Bombay District Police Act of 1890, Section 6, as amended by an Act of 1920. Section 6, as amended, provides that a Provincial Government may appoint for each district a Superintendent, an Additional Superintendent and such Assistant and Deputy Superintendents of Police as it may think fit; and an Additional Superintendent of Police may, by a general or special order of Government, be empowered to exercise and perform in the district for which he is appointed or in any part thereof, all or any of the powers and duties under this Act of a Superintendent of Police. I presume that the Additional Superintendent of Police of Broach and Panch Mahals has been given by Government all the powers and duties of a Superintendent of Police under the Bombay District Police Act in respect of the District of Panch Mahals, but Section 6 of the Bombay District Police Act does not confer on the Provincial Government the right to confer on the Additional Superintendent of Police powers arising outside the Bombay District Police Act, and the powers arising u/s 6 of the Bombay Prevention of Gambling Act are outside the Bombay District Police Act. The provisions of Section 6 of the Gambling Act are these :

It shall be lawful for a Police Officer elsewhere (than in the City of Bombay) not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a Magistrate of the First Class or a District Superintendent of Police or by an Assistant or Deputy Superintendent of Police specially empowered by Government in this behalf.

I think the words " specially empowered by Government in this behalf" only cover the Assistant or Deputy Superintendent of Police. The repetition of the word " by " seems to indicate that. So that a Magistrate of the First Class or a District Superintendent of Police can exercise the power without any special authority from Government; but there is nothing said about an Additional Superintendent of Police. Although the Additional District Superintendent of Police is carrying out all the powers under the Bombay District Police Act in respect of Panch Mahals of a District Superintendent of Police, he is not in fact a District Superintendent of Police, and he cannot be given power to issue a warrant u/s 6 of the Bombay Prevention of Gambling Act. The learned Government Pleader seeks to get out of the difficulty by relying on Section 17 of the Bombay General Clauses Act, 1904, which is somewhat obscurely worded, but provides that for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, it is sufficient to mention the official title of the officer at present executing the functions. Well, the officer at present exercising the functions is the Additional Superintendent of Police, but the only officer mentioned in the Section is the District Superintendent of Police. Therefore it seems to me clear that Section 17 of the Bombay General Clauses Act, 1904, does not apply to this case at all. The difficulty which has arisen is no doubt purely technical; but, in my opinion, the Additional Superintendent of Police, Panch Mahals District, has no power to authorise the issue of a search warrant u/s 6 of the Bombay Prevention of Gambling Act; and as the conviction in this case turned upon the presumption arising u/s 7 of the Gambling Act on a search u/s 6, the conviction must be set aside, as the presumption does not arise. The fine, if paid, to be repaid.

Sen, J.

I agree.