STATE OF MAHARASHTRA Vs. TOKARAM ZINGRAJI MOHKAR

JUDGEMENT

(1.) THE Sessions Judge, Akola has sent this reference with a recommendation that the conviction passed by the Judicial Magistrate First Class. Akola on the three-accused-opponents for an offence punishable under Section 12 (a) of the Bombay Prevention of Gambling Act (hereinafter called the Gambling Act should be set aside.

(2.) THE police Headconstable Govindrao Nimbalkar had received an information about gambling at village Palso Badhe. He, therefore went to that village on 13-8-1967 and found the accused gaming with cards at about 2. 30 P. M. on a road in front of a hotel there. The cards and the money which were lying there along with the cards and money which were on the person of the accused were all seized in the presence of the panches. A case was thereafter launched. The accused denied having committed any offence. Their explanation was that they were only taking tea in the hotel and they were not gaming outside. The learned Magistrate after hearing the evidence came to the conclusion that the prosecution did establish that the accused were found gaming at a public place in front of the hotel of one Waghmare on that day. He accordingly therefore passed an order of conviction for an offence punishable under Section 12 (a) of the Gambling Act. The accused went in revision before the Sessions Judge against their conviction and sentence which was only of a fine of Rs. 35

(3.) THE learned Sessions Judge came to find in this revision application that the applicants were found at a public place. He is however of the view that the prosecution have not established that the accused were gaming at a public place with cards for money. According to him, the prosecution have not established what type of gamine was going on at that place. According to him. the prosecution in order to establish that the accused were gambling also should establish the nature of gaming. He relied on Narayan v. State of Maharashtra 1969 Mah LJ 40 and according to him the circumstances in that case were more or less similar to the circumstance in the instant case before me. The learned Sessions Judge was of the view that since the prosecution have not established the gaming by the accused, therefore, on the application of certain observations in the above cited case, the accused here also should be acquitted. Accordingly, therefore he recommended that the conviction of the accused-opponents should be set aside.