In Re: Annum Kesanna Chetty and Others

Newsam, J.—This petition raises an interesting question as to the scope and meaning of certain sections in the Madras Gaming Act (III of

1930). A ""common gaming house"" is defined as a place where cards or other instruments of gaming are kept for the profit of the person who owns

or occupies the place. In other words it is a place open to all comers for gambling purposes and run by some person for profits either by hiring the

room or by hiring the cards, etc. The persons punishable under the Act are the keeper or owner of such aplace and persons who frequent such a

place for gaming. Gaming in a private house or in a club is not an offence punishable under this Act. Section 9 of the Act contains a pre sumption

that anyone found in a common gaming house during gaming was there for the purpose of gaming. Section 7 states that a man may be convicted of

keeping a ""common gaminghouse"" even though it be not proved that anyone played for money in that place. These two sections clearly show that

the legislature was oppressed by the difficulty of obtaining proof in such cases. The greater part of this short Act is in fact devoted to overcoming

that initial difficulty by creating special rules of evidence. But it is Section 6 which presents the greatest difficulty. That section read with Section 5 is

to the effect that any cards or instruments of gaming found in any place searched under a search warrant issued by a salaried Magistrate or Deputy

Superintendent of Police who has reason to believe that the place is used as a common gaming house shall be evidence that such place is used as a

common gaming house and that the persons found therein were there for the purpose of gaming even though no gaming was seen by the search

party. The drafting of these sections is certainly defective. It is quite clear, pace the phraseology of Section 6, that cards or instruments of gaming

cannot of themselves be evidence of anything. The obvious meaning is that the finding of cards or of instruments of gaming in such circumstances

shall be deemed to be evidence; shall be a ground for the inference that the place is a common gaming house. Now, in most private houses cards

or other instruments of gaming are to be found, and therefore there must be some special circumstances to justify the inference that the place is a

common gaming house. It is clear that the mere finding of cards or of other instruments of gaming is not sufficient to justify such an inference. The

one safeguard provided in the Act for people who have cards in their private houses is that before their houses are searched ""a salaried Magistrate

or a ""Senior Policeman"" must have reason to believe that their house is a common gaming house. If he thinks he has reason to believe that and

issues a search warrant and cards are found, that is, evidence that the house is a common gaming house. But is it sufficient evidence by itself?

Obviously not. The reasons which prevailed with the Magistrate or with the ""Senior Policeman"" to issue the warrant must normally be put before

the Court and Kesanna must be tested before a man can be convicted of keeping for a common gaming house on such flimsy evidence. Otherwise,

the conviction would be based partly on purely artificial evidence and partly on secret information, which cannot possibly have been the intention of

the legislature. Nor does the language of Sections 5 and 6 support such a conclusion. There is a world of difference between saying that a certain

fact is evidence of something and saying that it is proof of something. In my judgment each case must be decided on its merits and regard must be

had to all the circumstances and the discretion of the Magistrate to accept a case as proved or to reject it as not proved is wholly unfettered and

unaffected by Section 6. All that I am concerned to point out is that if the reasons which induced a Magistrate or a Senior Police Officer to issue a

search warrant are not put before the Court, the mere finding of cards or instruments of gaming in the execution of such a search warrant, though

evidence, ought never by itself to be treated as sufficient evidence, that is, as proof that the place is a common gaming house.

Turning to the present case, the first petitioner has been fined for keeping a common gaming house and eight others for being found gaming

there. The search warrant (Ex. B) was issued by a Magistrate who stated therein that he had been led to believe that the house of first petitioner

was used as a place for gambling on a large scale. I think it unfortunate that he should confess that he was only led to believe this and shrank from

saying plainly that he had good reason to believe. it. It is also a strange suggestion that the scale on which gambling was indulged in was a relevant

consideration. The really important and relevant matter seems to have escaped the Magistrate altogether, namely, whether there was reason to

believe that the house was a common gaming house. Moreover, I find that the only evidence offered by the prosecution was the evidence of P.W.

1, the Inspector of Police, who conducted the search. He says that at 11 P.M. on the night of the search he was informed that gambling was going

on in first petitioner''s house on a large scale. He hastily obtained a search warrant and raided the house at 12-30 A.M. In these circumstances and

in this state of the evidence, if the Inspector had found only cards or instruments of gaming, I would certainly not have been able on the principles

above laid down to support the convictions in this case. But what he did find was this. The doors were shut and bolted inside. Through a window

the nine petitioners were observed gambling. Eight of them were pilgrims who were visiting that town for a religious festival. When the Police broke

in, the gamblers scattered, put out the lights, hid and pretended to be asleep. In all, the police seized Rs. 171-4-10 from the petitioners and by far

the bulk of this (Rs. 107-3-2) was found on theperson of the first petitioner the owner of the place. In these circumstances, I think it is a proper

inference that the place was kept by the 1st petitioner as a common gaming house. I am not prepared therefore to interfere in revision with the

convictions or with the sentence imposed. I dismiss this petition.