STATE OF GUJARAT Vs. JETHANAND SHAMALDAS

JUDGEMENT

(1.) These two appeals are filed by the State of Gujarat against the orders of acquittal passed in favour of the respondents by the Sessions Judge Bhavnagar in Criminal Appeals Nos. 145 of 1964 and 121 of 1964 filed against the orders of conviction and sentence passed against the respondents by Mr. D. A. Chhaya Judicial Magistrate First Class Bhavnagar convicting respondent No. 1 in Criminal Appeal No. 444 of 1965 and respondent No. 1 in Criminal No. 442 of 1965 for the offence punishable under sec 4 of the Bombay Prevention of Gambling Act 1887 (hereinafter referred to as the Act) and the rest of the respondents for the offence punishable under sec. 5 of the Act.

(2.) The facts in both the cases are similar and the same points of law arise in these two appeals. They are therefore heard together and this judgment will dispose of both these appeals.

(3.) In Criminal Appeal No. 442 of 1965 there are 20 respondents. The Police Sub-Inspector Shaikh obtained a Special Warrant under sec. 6 of the Act from the District Superintendent of police at Bhavanagar on 8 January 1964 and raided the premises mentioned in the Warrant and found the present 20 respondents present in that premises. Out of these 20 respondentn 12 pepsons were actually playing with cards and counters. Respondent Nos. 1 and 2 were sitting on chairs near a table and 7 persons including the punter were found watching the game of those 12 persons. The Police Sub-Inspector seized the cards counters monies and other articles from the premises and thereafter a case was submitted to the Judicial Magistrate First Class Bhavnagar on the allegation that the premises raided by the P.S.I. were a common gaming house and that the respondent No. 1 was the keeper thereof and that the respondents Nos. 1 to 20 were present in that gaming house for the purpose of gaming. The learned Magistrate raised a presumption under sec. 7 of the Act and came to the conclusion that the charges against the respondents are proved. Respondent No. 1 was convicted for the offence punishable under sec. 4 of the Act and was sentenced to pay a fine of Rs. 200.00. All the 20 respondents were convicted for the offence punishable under sec. 5 of the Act and each one of them was sentenced to pay a fine of Rs. 200.00. An appeal was filed by the 20 respondents to the Sessions Judge at Bhavnagar who held that the Special Warrant obtained by the Police Sub-Inspector was defective and therefore not valid. He therefore came to the conclusion that no presumption could be raised under sec. 7 of the Act. He further came to the conclusion that there was no reliable evidence to show that the respondents were guilty of the offences for which they were convicted. He therefore allowed the appeal and acquitted all the respondents.