KRISHNA MOHAN AND ORS Vs. STATE

JUDGEMENT

(1.) This is a reference by the Temporary Sessions Judge of Meerut recommending that the conviction and sentence of Bithal Under Section 3 of the Public Gambling Act and the conviction and sentence of Krishna Mohan, Ghurey, Munir, Kundan, Nathi Lal, Ramji and Patro Under Section 4 of the same Act be set aside.

(2.) The facts are these. The Station Officer of police station Kotwali obtained a search warrant Under Section 5 of the Public Gambling Act from the Superintendent of Police on 20-6-1952. On 23-6-1952 an informer told the Second Officer of Police Station Kotwali that gambling was going on in the house belonging to Bithal. The Station Officer thereupon endorsed the search warrant in favour of the Second Officer. The Second Officer proceeded to the spot with the police party and found the main door of the house slightly open and a boy standing guard over it. The boy immediately ran inside the house. The police party quietly went in. The prosecution contended that the police party found these persons gambling with kowris and succeeded in arresting them. The articles on the phar were taken possession of by the Second Officer. The arrested persons were searched and various sums of money were recovered from them.

(3.) One of the questions which was raised in the case was whether the Magistrate was justified in drawing the presumption arising Under Section 6 of the Public Gambling Act. The contention was that it is only an officer appointed by the State Government on its behalf who can be authorised to execute a warrant issued Under Section 5. Section 5 says that the Superintendent of Police might either himself enter, or by his warrant authorise any officer of police not below such rank as the State Government shall appoint in this behalf, to enter any house and may either himself take into custody or authorise any such officer to take into custody whom he or such officer finds therein whether or not actually gambling. Notification No. 2195/VI-349-1909 dated 14-6-1910 published in the UP Gazette part 1 page 9598 dated 25-6-1910 says that Inspectors of Police and all officers incharge of police stations not below the rank of Sub-Inspector, may be authorised to take action Under Section 5 of the Public Gambling Act. It will thus appear that though the police officer originally authorised under the warrant might endorse it to another police officer, yet it is necessary that the endorsement must be in favour of a person who has been appointed in that behalf by the State Government; and if it is endorsed in favour of a person who is not such a person then the mere endorsement will not make him an authorised police officer and the execution of the warrant by him would not fulfil the requirements of Section 5 or Section 6 of the Act. It is obvious in the present case that the Second Officer who was not incharge of the police station could not have been authorised to execute the warrant Under Section 3. It is only when he is "authorised" and he does execute it, that the presumption Under Section 6 can be attracted. The Second Officer namely, Sri Brij Raj Singh in whose favour the warrant was endorsed by the Station Officer and who had actually executed the warrant was not they Sub-Inspector incharge of Police Station Kotwali. It was really the S.O. who was incharge. The word '"officers incharge of police stations" occurring in the notification have not been defined by the Public Gambling Act. These words have been defined Under Section 4(p) of the Code of Criminal Procedure. This section lays down that Officer incharge of a police station includes, when the officer incharge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. Manifestly the Station Officer was not absent from the police station because he made the endorsement the same day the warrant was executed. It was not shown that he was either ill or was unable due to some other cause to perform his duties. Consequently the endorsement was not legal. That being so, the presumption Under Section 6 of the Public Gambling Act could not be attracted. The presumption Under Section 6 encroaches upon the liberty of a person and has got to be strictly construed. As has been held by a Division Bench of this Court in Kimat Mal v. State 1956,AWR 219 there is nothing in Section 5 which empowers a person authorised by the Magistrate to make a search to further delegate that power to another officer. The provisions of Section 79, Code of Criminal Procedure have not been made applicable to a warrant issued Under Section 5 of the Public Gambling Act. Therefore if the warrant issued Under Section 5 in favour of particular officer has been endorsed in favour of another officer and the search has been made by such an officer such a search cannot be regarded as one in accordance with Section 5, and the presumption Under Section 6 will not be available to the prosecution in such circumstances.