In Re: Chellakani Sahib and Another

Happell, J.—The petitioner has been convicted of an offence u/s 9, Madras Gaming Act and sentenced to a fine of Rs. 10 and to seven days'' simple imprisonment in default of payment. In my opinion, the conviction cannot be sustained. It may be conceded that the petitioner was found with others playing cards for money in a room belonging to a dancing girl. For an offence u/s 9 to be completed, however, the accused person must have been found gaming or present for the purpose of gaming in a common gaining house and for a room to be a common gaming house within the meaning of Section 3, Madras Gaming Act, the cards, dice, or other instruments of gaming must be kept or used for the profit or gain of the person owning or occupying the room. Section 6 provides that if a warrant has been issued u/s 5, the cards, dice or other instruments of gaming found at the place shall be evidence that such place is used as a common gaming house. In the present case the Bench Magistrates do not seem to have drawn the presumption referred to in Section 6. After referring to an argument stressed for the defence that the Sub-Magistrate did not issue a separate warrant u/s 5, Gaming Act, they say that no doubt that is true, but then go on to say that, in consideration of the specific evidence of P. Ws. 1 to 3 and the evidence of P.W. 4, it was clearly established that the house was a common gaming house. In my opinion, the evidence of these witnesses does not establish that the room was a common gaming house since in the absence of the presumption u/s 6 the evidence does not prove that the instruments of gaming were being kept for the profit or gain of the person owning the room. Moreover, it seems to me clear that the Magistrates, although I do not agree with their appreciation of the evidence, were right in not relying on the presumption that in appropriate circumstances may be drawn u/s 6. All that the Sub-Magistrate has done in this case, as appears from Ex. A is to write "permitted" on the side of an application for permission to search the premises concerned in this case by the Sub-Inspector of Police. u/s 5 the Magistrate must have reason to believe that a place is used as a gaming house before the warrant referred to in Section 5 is issued; and Ex. A affords no guarantee that in the present case the Magistrate applied his mind to the question and so had reason to believe that a warrant should be issued. The conviction is therefore set aside and the appeal is allowed. The fine, if paid, will be refunded.