The Public Prosecutor vs Subramania Sastri and Others

Pandrang Row, J.—This is an appeal by the Public Prosecutor from the order of acquittal passed by the Sub-Divisional Magistrate of

Gobichettipalayam in a case in which 20 persons were charged by the Police with an offence punishable u/s 9 of the Madras Gaming Act, III of

1930. The Sub-Magistrate convicted all the accused, and on appeal all of them were acquitted by the Sub-Divisional Magistrate.

The two questions that arise in this appeal are: (1) whether the presumption referred to in Section 6 of the Gaming Act is available to the

prosecution in this case and (2) whether the evidence of P.W. No. 2 which alone refers to the alleged common gaming house, was wrongly

disbelieved or discredited by the Appellate Court. As regards the first point, the Appellate Magistrate has relied on the ruling in Gangadas

Banerjee and Others Vs. Emperor, and my attention has not been drawn to any decision pointing the other way. Even apart from the decision

relied upon by the Sub-Divisional Magistrate, I am of opinion that the presumption referred to in Section 6 can only apply to searches conducted in

pursuance of a warrant issued u/s 5 of the Act. In this particular case the warrant does not purport to have been issued under this section of the

Act, but on the contrary purports to have been issued u/s 96 of the Code of Criminal Procedure. There is, moreover, no mention whatever in the

warrant itself of the Magistrate who issued it having been satisfied that there was a common gaming house which required to be searched; in fact it

is extremely doubtful whether his mind ever dwelt on this question when he signed the warrant. The fact that reference was made to Section 5 in

the application for a warrant does not, in my opinion, show that the Magistrate actually issued the warrant under that section. His remarks on this

point in his judgment are irrelevant; if as a matter of fact he had satisfied himself that he was issuing the warrant u/s 5 of the Act, he ought not to

have tried the case himself but offered to give evidence as a witness in the case. His remarks in the judgment are not entitled to rank as evidence,

especially in view of the fact that they attempt to supply the omissions or defects found in the warrant itself, and to vary its terms. The warrant is to

be in writing and must contain all the matters that the law requires to be stated therein. Oral statements intended to vary the terms of a warrant

required by law to be in writing are not admissible.

As regards the second point, after going through the evidence of P.W. No. 2 I see no reason to differ from the observations of the Appellate

Magistrate regarding his evidence, namely, that it is entitled prima facie to no weight and that no credit could be given to his uncorroborated

testimony. It cannot in my opinion be said with any reason that the Appellate Magistrate was wrong in discrediting him. No doubt the trial

Magistrate has expressed the opinion that the witness was a straightforward and honest man, but this is a matter of opinion not connected with the

demeanor of the witness, and his evidence does not show that he is particularly honest or particularly straightforward. On the other hand, some

portions of his evidence are incredible, especially his statement that every player used to pay one rupee to the gardener on every day the play went

on in the salai or bungalow. There can be no doubt that once the presumption u/s 6 is found to be not available in this case and the evidence of

P.W. No. 2 cannot be relied upon, the correctness of the acquittal of the accused cannot be seriously questioned. Apart f torn the presumption

and the evidence of P.W. No. 2, there is really no evidence to show that the bungalow in question was ever used as a common gaming house. The

mere fact that occasionally people used to play cards there, and perhaps, for money, does not necessarily make it a common gaming house. I

therefore see no reason to interfere in appeal with the order of acquittal passed by the Sub-Divisional Magistrate.

The appeal is accordingly dismissed u/s 423 of the Code of Criminal Procedure.