EMPEROR Vs. POKKA KUSLAPPA BANT

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge at Karwar recommending that the conviction of the six accused by the Sub-Divisional Magistrate, First Class, Karwar Town, under Section 5 of the Bombay Prevention of Gambling Act, should be set aside and the accused acquitted and discharged. The charge against the accused was that accused No.3 had kept a common gaming house at Keni, a suburb of Ankola, and that all the accused were found there engaged in playing cards for stakes. The Police Sub-Inspector of Ankola received information that three cottages in survey No.166/a belonging to Dani, Yeshwant and Janaki were used as common gaming houses, and on August 20, 1945, he obtained a warrant from the First Class Magistrate, Ankola, to search these houses and seize the instruments of gaming found there. On August 23, 1945, the Police Sub-Inspector got information that gambling was going on in Dani's house. It was then about 11 p. m. and he proceeded to that house with a party of constables and panchas. Peeping through a hole, he found that all the six accused were then engaged in playing with cards what is known as pat game with two annas stakes. The party entered the room and found the six accused sitting in a circle playing cards, with a sum of Rs. 3-11-0 placed in the centre. As soon as the party entered the room, the accused began to run away. They were all caught and a panchnama was drawn up. After completing the investigation, a charge sheet was sent against all the six accused, accused No.3 being charged under Section 4 of the Bombay Prevention of Gambling Act and the other accused under Section 5.

(2.) THE learned Magistrate who tried the accused found that the house belonged to Dani, and accused No.3, who was thought to be the son of Dani, was really not her son and had nothing to do with that house. THE charge under Section 4 was, therefore, held not proved against (him, but as all the six accused were found playing there for stakes and the instruments were seized on a search made under a warrant issued under Section 6 of the Act, a presumption under Section 7 was raised and all the six accused were convicted under Section 5 of the Act.

(3.) IN the absence of such presumption there is nothing to show that the house was used as a common gaming house. It is true that there is a finding of fact that the six accused were playing cards for stakes. But there is nothing to show that any profit was made out of that gaming by the owner or occupier of the house. It was suggested that such a presumption would arise from the fact that a tin-box with a slit in its lid was found in the neighbouring room, which would indicate that the money thrown into the tin-box through the slit was to go to the owner of the house. But the panchanama shows that there was a pillar in that room which was worshipped and some coconuts were placed at its foot by the worshippers. The accused say that the tin-box was kept in front of that pillar so that any devotee might put some small coins into it for the purpose of purchasing coconuts for the deity. The contents of the panchnama bear out this allegation, and a presumption that the money would go to the owner of the house as the profits of the gaming would not be justified.