State vs Bhaganwanlal Chhotalal and Others

Chhatpar, J.—This is an appeal u/s 417 Cri.P.C. by the State of Saurashtra from an order of acquittal passed by the First Class Mag., Limbdi, acquitting all the resps. for offences under Sections 4 & 5, Bombay Prevention of Gambling Act as applied to the State of Saurashtra. The resp. 10 Chunilal Lakhmichand was charged with an offence u/s 4 of keeping a common gaming house & the other resps. were charged, with offences u/s 5 of gambling in a common gaming house.

A preliminary objection has been raised as regards the validity of the special warrant issued to the S.I. of Police, Limbdi Police Station u/s 6 of the Act, by authority of which the Police Officer raided the place alleged to be a common gaming house, where he instituted a search & is alleged to have found instruments of gambling & the accused persons assembled there. The objection as to the validity of the warrant is that it does not state the name of the Police Officer, but merely states his designation. Section 6 provides that it shall be lawful for a Police Officer, not below the rank of a S.I. of Police authorized by a special warrant issued by a Mag. of the First Class to enter any house, room or place which he has reason to suspect is used as a common gaming house, to make a search, take into custody persons found therein & to seize things which are reasonably suspected to have been used or intended to be used for the purpose of gaming. There is an important proviso attached to the section which says that no Officer shall be authorised by a special warrant unless the Mag. upon any complaint made before him on oath & upon making such inquiry as he may think necessary is satisfied that there are good grounds to suspect that the place is being used as a common gaming house. It has been held that the section must be construed strictly & the conditions imposed must be strictly complied with. Reference may be made to the cases reported in Emperor Vs. Pokka Kuslappa Bant, ; ''Emperor v. Kaitan Duming Fernad'' 31 Bom 438 & ''Emperor v. Thavarmal Rupchand'' AIR 1929 Bom 157. It appears to me on a correct interpretation of the section that a special warrant should be one, which is specially directed to a Police Officer by name. In the present case, it is admitted that the name of Sub-Inspector was not mentioned in the warrant. The warrant was simply addressed to the S.I. of Police, Limbdi Police Station. In this view I am supported by two Sind decisions & one decision of the Bombay H.C. In the case of ''Emperor v. Mithu'' 10 CriLJ 3, a Bench of the Ct. of the J.C. of Sind held that a warrant issued u/s 6, Bombay Prevention of Gambling Act, must specify the Officer to whom the authority is given, & the only person who can execute the warrant is the Officer therein named. The Officer cannot delegate the authority to execute the warrant to Anr. Officer. It was observed at p. 5 of the report as under:

Further, the position of the words by special warrant indicates that they are intended to put some limitation on the process of conferring the authority; the things to be done in pursuance of the authority are laid down in the section itself, & it appears contemplated that every warrant issued should authorise the executing officer to do all the things therein detailed. But the officer who searches a place under the section must be authorised by ''special warrant'' that is, he must be armed with a warrant that authorises him specially. A warrant issued u/s 98, Cr.P.C., or u/s 5 of Act 111 of 1867 is not a special warrant at all, for no officer can declare himself authorised by special warrant, if he merely holds warrant that can be endorsed over to any other police Officer of similar rank.

The intention of the Legislature was evidently, that the officer to be selected to make a raid should be a specially reliable officer who could be trusted not to abuse the special opportunities presented by the possession of a search warrant, & whose statement could fairly be taken as the foundation of the presumption which is permitted by Section 7.

We are of opinion, therefore, that a warrant issued u/s 6, Bombay Prevention of Gambling Act must specify the officer to whom the authority is given, & that the only person who can execute the warrant is the officer therein named." I am in agreement with these observations. This case has been followed in a later case of the same Ct. reported in ''Assudomal v. Emperor'' AIR 1930 Sind 59, which held:

A special warrant must be a warrant which is specially directed to a person by name & not one which can be endorsed over to any other police Officer of similar rank. A warrant is not a special warrant & if it is not on the face of it a special warrant & if it is directed to a special officer, extraneous evidence cannot be admitted to prove that it was meant to be executed by a special police Officer personally & only by him.

In the case of ''Emperor v. Thavamial Rupchand'' AIR 1929 Bom 157, the validity of a special warrant issued under the same Act was attacked on the ground that the premises which were authorised to be searched were not sufficiently described in the warrant. Mirza J., in dealing with the requirements of a special warrant at pp. 165 & 166 observed as under:

The term ''special warrant'', in my opinion, has reference only to the limitation as regards the person or persons who would be competent to execute it. The special warrant when issued authorises the officer or officers named therein to do all the things that are detailed in the warrant. The warrant issued u/s 98, Cr.P.C. is not a special warrant as it can be endorsed over to any other police-officer of similar rank. In the case of a special warrant the only person who can execute the warrant is the officer who is named in the warrant.

Following the above rulings, I hold that the warrant issued in the present case did not supply the requirements of a special warrant u/s 6 of the Gambling Act. The learned Advocate General has admitted that if this is so, the presumption u/s 7 of the Act cannot arise, & there is no sufficient evidence on the record to convict the accused persons. In view of this, the appeal fails & is dismissed.

Shah, C.J.

I agree.