STATE OF MAHARASHTRA Vs. ABDULGAFAR ABDULREHMAN

JUDGEMENT

(1.) This is an appeal by the State against the order of acquittal passed by the learned Judicial Magistrate, first Class, 9th Court, Ahmedabad, acquitting the respondents of the offence under Sections 4 and 5, Bombay Prevention of Gambling Act. On behalf of the State we have been told that the State is not anxious to secure the conviction of the respondents as much as to get the point of law decided; and, according to the appellant, the point of law is of some importance because the view taken by the learned trial Magistrate as to the effect of the provisions of Sections 6 and 7, Prevention of Gambling Act is wholly erroneous and indeed is not supported by any decisions of this Court. The point, in substance, is in regard to the artificial presumption which is allowed to be rais-ed statutorily under Section 7 of Bombay Act 4 of 1887. The learned Magistrate has taken the view that, though a warrant had been issued under Section 6 of the Act, the presumption under Section 7 cannot, and should not, be drawn because in effect he held that a warrant should not have been issued under Section 6 and it is this approach which is challenged before us by the State in the present appeal.

(2.) The facts leading to the prosecution are very few. Mr. Shaikh, the Police Inspector of Crime Branch, Ahmedabad, received information on 14-7-1954 that respondent 1 was running a common gaming house at Miya's Wadi for his benefit. On the next day he verified the matter personally, and having satisfied himself that the in., formation was true, he obtained a search warrant under Section 6 of the Act from the S. D. P. O. Special. The warrant was issued after the authority approached in that behalf had received the complaint on oath from Mr. Shaikh and was satisfied on making additional suitable inquiry that the facts alleged in Mr. Shaikh's complaint appeared to be true. After the warrant was issued, Mr. Shaikh went to the place along with the panchas and effected a raid. At the raid the respondents and others were arrested. Rs. 41-8-0 were actually found at stake. In front of accused No. 1 there was one cigarette packet wherein Rs. 45-12-3 were found. This, according to the prosecution, was the Nal money drawn by accused 1 as his profits. All the respondents were individually starched and different amounts were found with them. Cards were also found in the hands of accused 1. A panchanama was made and a charge-sneet was submitted under Section 4 against accused 1 and under Sec-lion 5 against the other accused persons.

(3.) The learned Magistrate appears to have thought that the cross-examination of Inspector Shaikh showed that he had no personal knowledge in this matter and he held that since Shaikh himself had no personal knowledge in the matter and since presumably the other evidence adduced before the authority issuing a warrant under Section 6 was not, in the opinion of the learned Magistrate, sufficient or satisfactory, the warrant itself was improperly Issued; and it is on this view of the matter that he substantially refused to draw the statutory presumption under Section 7. The learned Magistrate, in coming to this conclusion, has made certain general and vague observations in his judgment which should have been avoided. He should have addressed himself to the very narrow question which he had to consider, and if the learned Magistrate had examined Section 6 carefully and had attempted to derive assistance from reported judicial decisions on this point, he might have easily escaped falling into the error which has effected his Judgment. It is because the learned Magistrate is likely to try several cases of this kind under this Act that the State thought it necessary to prefer an appeal in order that the view taken by the learned Magistrate should be corrected.