THAKORDAS SUGNAMAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Armed with a general order In writing issued by late Mr. Niranjan Das Police Commissioner Ahmedabad under sec. 6(1) of the Bombay Prevention of Gambling Act (hereinafter to be referred as the Act) Mr. Dharia the P. S. I. Ahmedabad City accompanied by the police officers and the panchas raided the house bearing No. 2375/B/3 Kalupur-I at about 8-30 p. m. on 28th December 1964 in pursuance of some information received by him that it was used as a gaming house and that the accused and other persons were gaming or present for the purpose of gaming. Finding them gaming with cards and money he made a panchnama in respect of all that was found there. He also searched those persons who were found gaming in cards and money. The complaint was then lodged against accused No. 1 for offences under secs. 4 and 5 of the Bombay Prevention of Gambling Act and under sec. 5 of the said Act against the remaining accused Nos. 2 to 9. The accused pleaded not guilty to the charges levelled against them. After considering the effect of the evidence the learned Magistrate found accused Nos. 2 to 9 guilty for an offence under sec. 5 of the Act and each one of them was sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 500.00 or in default to suffer further rigorous imprisonment for one month. Accused No. 1 was acquitted. Feeling dissatisfied with that order passed on 1-6-1965 by Mr. P. M. Mehta City Magistrate 2 Court Ahmedabad the accused Nos. 2 to 9 have come in appeal before this Court.

(2.) Mr. Thakore the learned advocate for the appellants contends that the order of conviction of these appellants-accused is mainly based on the presumption raised under sec. 7 of the Act inasmuch as the search was carried out under a general order issued in favour of Mr. Dharia by the Commissioner of Police Ahmedabad under sec. 6(1) of the Act. That order was issued on 14th September 1964 and according to him at the date when this search was effected by Mr. Dharia viz. on 28-12-64 Mr. Niranjan Das the Commissioner of Police who had empowered him by a general order or authority under sec. 6(1) of the Act was dead and that therefore that authority cannot be said to continue on that day. Since the search effected under sec. 6 of the Act was invalid no presumption can be allowed to be raised against the accused-appellants under sec. 7 of the Act Now sec. 7 of the Act runs thus:

(3.) The search effected was thus unauthorised and invalid and consequently no effect can be given to the same as contemplated under sec. 7 of the Act viz. to presume that the thine so seized was an instrument of gaming and that such house or place was used as a common gaming house and the persons present were there for the purpose of gaming until the contrary is proved.