SINDHI LOBHANA CHOITHRAM PARASRAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant and six other persons were charged under Ss. 4 and 5 of the Bombay Prevention of Gambling Act 1887. The Sub-inspector of police Shri Anjaria received information that the appellant was keeping a common gaming house. He obtained a special search warrant from the Deputy Superintendent of Police, Porbandar, Shri S.M. Pandya, and raided the appellant's house in Bantwa on June 4, 1961 at 1.p.m. The raiding party found the door leading to the upper floor closed. The inmates pressed against the door from the inside and did not open it until a black smith broke open the latch. Shri Anjaria seized torn and burnt pieces of playing cards lying on the floor of the central room, two packs of cards from a wall cabinet, some burnt cards lying on the floor and in the folds of a bed in the drawing room, four jokers and three packs of cards from trunks in the kitchen, some cash, burnt cigarette ends, bidis and matches and empty cigarette cases. All the accused were found in the upper floor. The appellant as the occupant of the house was charged under S.4 of the Act and the other six accused were charged under S.5. of the Act. The learned magistrate refused to raise a presumption under S.7 of the Act on the ground that Shri Pandya was not specially empowered by name to issue a search warrant. He acquitted all the accused. On appeal, the High Court held that Shri Pandya as the deputy superintendent of police, Porbandar was specially empowered to issue the search warrant and the prosecution was entitled to the benefit of the presumption under S.7. The High Court convicted the appellant of the offence under S.4 of the Act and sentenced him to simple imprisonment for one month. The present appeal was filed by the appellant by special leave. The High Court convicted the other six accused under S.5 of the Act and sentenced each of them to pay a fine of Rs. 200 in default simple imprisonment for one month. The present appeal was filed by the appellant by special leave.

(2.) A search warrant under S.6 (1) (i) of the Act can be issued by a "Deputy Superintendent of Police especially empowered by the State Government in this behalf". By a notification dated January 22, 1955, the Saurashtra Government empowered specially certain assistant superintendents and deputy superintendents of police including the deputy superintendents of police, Porbandar Division, Porbandar, to authorise by issue of special warrants in each case a police officer not below the rank of a sub-inspector of police to do the various things necessary in order to raid a house where the police officer suspected gaming to be carried on and which house, room or place was suspected as being used as a common gaming house. The magistrate relying upon Emperor vs. Udho, AIR 1943 Sind 107 held that under S.6., the officer must be specially empowered by name. The High Court relying on Emperor vs. Savalaram Kashinath Joshi, 49 Bom LR 798 held that an officer may be specially empowered under S.6 either by name or in virtue of his office. It is because of the conflict of opinion between the Sind and the Bombay decisions that special leave was granted in this case.

(3.) Section 15 of the Bombay General Clauses Act 1904 shows that a person may be appointed to execute any function either by name or by virtue of office. A person may therefore be empowered by name or by virtue of his office of deputy superintendent of police to issue a special search warrant. Section 6 of the Bombay Prevention of Gambling Act requires that the deputy superintendent of police must be "specially empowered" to issue the warrant. In AIR 1943 Sind 107 (supra), the expression "specially empowered" was interpreted to mean specially empowered by name and not by virtue of his office, and an authorization " the deputy superintendent of Police, Rohri" was said to be insufficient for the purposes of S.6.. This decision does not lay down the correct test. A person may be specially empowered not only by name but also by virtue of this office. In 49 Bom LR 798 (supra), it was rightly held that notification authorizing the deputy superintendent of police of the Poona city to issue a search warrant under S. 6, specially empowered the holder of that office by virtue of his office to issue the warrant. We think that where power is conferred on a person by name or by virtue of his office, the individual designated by name or as the holder of the office for the time being is empowered specially. Judged by this test, the notification dated January 22, 1955, specially empowered Shri Pandya as the holder of the office of the deputy superintendent of police, Porbandar, to issue the search warrant under S. 6.