STATE OF GUJARAT Vs. MANCHHARAM CHHATUMAL LUWANA

JUDGEMENT

(1.) -The eight respondents and one other person named Bhagwandas who was under 16 years of age and therefore a child were prosecuted for an offence under sec. 5 of the Bombay Prevention Gambling Act (hereinafter referred to as the Act). Respondent No. 1 Manchharam Chhatumal was further charged with an offence under sec. 4(a) of the Act. The trial of the child accused was separated and that against the others was held by the Judicial Magistrate First Class Rajkot (Shri B. T. Shah) who has acquitted all of them. Against the acquittal the State has come in appeal. As respondents Nos. 2 and 8 could not be served with the notice of this appeal and were reported to be absconding the appeal as against them is kept on the dormant file and that against the rest has proceeded. The substantial ground on which the acquittal was founded was that the prosecution was not entitled to the presumption available under sec. 7 of the Act notwithstanding the fact that special warrant had been issued in this case under sec. 6 of the Act because according to the learned Magistrate the warrant in this case was defective. Mr. Shah the learned advocate of the respondents has not adopted that line of reasoning and concedes that the warrant in this case is not defective but his argument is that even so the terms of sec. 7 of the Act which must be satisfied for the raising of the presumptions are not satisfied in this case. This being the short question arising in this appeal the facts may be stated in brief in so far as they are relevant to the determination of that question. . . ... . ... . . ... ...

(2.) On the evidence of the police officer and the two panchas the broad facts relevant on sec. 7 of the Act which are established and the evidence in respect of which I do not see sufficient reason to disbelieve are firstly that a game was being played with dice secondly that money was being exchanged as part of that game and thirdly that one of the incidents of that game was that respondent No. 1 was taking the nal. The meaning of the expression nal has been referred to in the decision of this Court in State v. Jethanand (IX G.L.R. 832) where the learned Judges at page 846 say that the nal moneys are profits made by the occupier of the gaming house; that is indeed the sense in which the expression has been used by the police officer in this case as his deposition shows. Mr. Shah argues that even accepting these facts as having been proved they are not sufficient for the Court being satisfied that the police officer who entered the house had reasonable grounds for suspecting that the things seized in the present case namely the dice and the money were instruments of gaming. His argument is that unless it is established that exactly was the game that was being played and what was the nature of that game the necessary foundation for the police officer to entertain reasonable grounds for suspecting that the things seized were instruments of gaming as contemplated by sec. 7 of the Act is lacking. In support of that proposition he invited my attention to some observations of this Court in Ramlobhaya Thakordas v. State (VIII G.L.R. 145).

(3.) Before examining this submission and considering the observations of this Court on which reliance is placed it would be appropriate to consider what is gaming which is hit by the provisions of the Act. The expression has been defined in sec. 3 to include wagering or betting and sec. 13 of the Act states that nothing in the Act shall be held to apply to any game of mere skill wherever played. The concept of gaming has been analysed by this Court in Jethanand's case (supra) in para 18 of the judgment. Reference is first made to the dictionary meaning of that term and it is pointed out that gaming consists according to the dictionary meaning in using cards dice billiards or other instruments according to certain rules with a view to win money or other thing waged upon the issue of the contest. Reference is then made to the following observations in the Full Bench decision of the Bombay High Court in Emperor v. Kallappa Gurappa Kotagunshi (42 B.L.R. 970):-