SINDHI FATANDAS CHIMANLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a revision application by nine persons who were convicted by the Judicial Magistrate First Class Junagadh under secs. 4 and 5 of the Bombay Prevention of Gambling Act which will hereinafter be referred to as the Act. Applicant No. 1 Fatandas Chimanlal was convicted under sec. 4 and the others under sec. 5 of the Act. Holding that the conditions of sec. 6 of the Act had been satisfied and relying on the evidence that applicant No. 1 was the Secretary of the-Club known as Swastik Club in respect of which warrant had been issued the learned Magistrate convicted applicant No. I under sec. 4 and he convicted the others under sec. 5 of the Gambling Act because they were found in the house when the raid was conducted. In appeal the learned Sessions Judge confirmed by conviction and hence this revision application.

(2.) In regard to applicant No. 1 it has been contended that he was not present at the time of the raid that there was no proof that he was living in the premises and that as he was the Secretary of the Swastik Club he cannot be convicted under sec. 4 of the Act which it is contended does not apply to clubs. As regards the other applicants it is contended that at the time of the raid admittedly gaming was not going on in the premises and that therefore the conviction of the other applicants under sec. 5 of the Act is improper. It is also contended that the presumption has been rebutted learned counsel for the applicants on the following case:- (1) Mohd. Dawood v. Emperor A. I. R. 1948 Bombay 67 (2) Emperor v. Kallappa Gurappa A.I. R. 1939 Bom. 481; (3) Ismail Varyo and others v. Emperor A. I. R. 1934 Sind 130 and (4) Mani Ram v. State 1954 Criminal Law Journal 1209.

(3.) Common gaming house is defined in sec. 3 of the Act sec. 4 of the Act punishes certain persons like owners or occupiers of a common gaming house and persons who have the case or management of a common gaming house. Sec. 5 punishes persons found in any common gaming house either gaming or present for the purpose of gaming. Under sec. 7 of the Act when any instrument of gaming has been seized in any house room or place entered under sec. 6 or about the persons of any one found therein and in the case of any other thing so seized if the Court is satisfied that the police officer who entered such house room or place had reasonable ground for suspecting that the thing so seized was an instrument of gaming the seizure of such instrument or thing shall be evidence until the contrary is proved that such house room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming although no gaming was actually seen by the Magistrate or the Police Officer or any person acting under the authority of either of them.