EMPEROR Vs. CHIMANLAL SANKALCHAND

JUDGEMENT

(1.) THIS is an appeal by the Government of the Province of Bombay against an order of the Additional Sessions Judge, Ahmedabad, acquitting the accused of an offence punishable under Section 4 of the Bombay Prevention of Gambling Act, 1887. On May 14, 1942, the Sub-Inspector of Police obtained from the Assistant Superintendent of Police a warrant under Section 6 of the Act to raid and search the room occupied by the accused. Armed with that warrant, the Sub-Inspector sent a bogus punter with six marked rupees and some slips on which figures for American future were entered. As instructed by him the bogus punter went to the room of the accused, offered him those six rupees and offered bets on the figures which he had taken down on the slips. The accused accepted the bets and wrote out the figures on the cover of a book of songs. The bogus punter then gave a signal and the police raided the shop along with panchas. The marked coins and the book were then found by the panchas lying near the accused. A panchnama was drawn up and after some further investigation a charge-sheet was sent up against the accused both under Sections 4 and 5 of the Act. The learned Magistrate convicted him under both the sections and sentenced him to pay a fine of Rs. 200 or in default to suffer rigorous imprisonment for six weeks under Section 4 and to pay a fine of Rs. 25 or in default to suffer rigorous imprisonment for one week under Section 5 . The accused having appealed to the Sessions Court, the learned Additional Sessions Judge confirmed the appellant's conviction and the sentence passed on him under Section 5, but set aside his conviction and sentence under Section 4 on the ground that the accused was not proved to have been using the room to make a profit out of the gambling there. He observed that there was no evidence worth the name to prove that the accused made any profit or gain by the use of his room for the purpose of gambling. In his opinion the accused who received bets would be a mere gambler, but what is required for conviction under Section 4 is not a mere proof that he is a gambler but that he made some profit by making use of his room for gaming.

(2.) IN Section 3 of the Act a common gaming house is defined as meaning a house, room or place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying or keeping such house, room or place or of the person using such house, room or place whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instruments of gaming or of the house, room or place or otherwise howsoever.

(3.) IT is argued by Mr. Pochaji on behalf of the accused that even in that case it was observed that "the prosecution must establish that the purpose was profit or gain and that that might be done either by showing that the owner was charging for the use of the instruments of gaming or for the use of the room or place or in any other manner. " The words "or in any other manner," (which were used there instead of the words appearing at the end of the definition "or otherwise howsoever") cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem generis with what precedes those words, and hence even the hope of making a profit out of the gambling itself is sufficient to satisfy the requirement of the definition of common gaming house. IT may happen that the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making a profit, although he may not necessarily make it every time. Such a hope is sufficient to make the house a common gaming house and the occupier liable for keeping such a house.