STATE OF MAHARASHTRA Vs. GAURI KOM KRISHNA BHANDARI

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal passed by the Judicial Magistrate, First Class, Karwar, in Criminal Case No. 982 of 1955. Thirteen persons were tried by the Learned Magistrate for offences under Ss. 4 and 5 Bombay Prevention of Gambling Act, 1887. The case for the Prosecution was as follows; Sub-Inspector R. N. Desai of Ankola police Station, haying received infer, mation that a house in the village of Avarsa belonging to the first accused Gauri kom Krishna Bhandari was being used as a common gaming house, applied on 23-8-1955 to the Sub-Divisional Magistrate, Karwar Division, for a warrant under Section 6, Bombay Prevention of Gambling Act. The Sub-Divisional Magistrate issued a warrant on 25-8-1955 authorising Sub-Inspector Desai to enter House No. 548 Block No. 3, 107 of Avarsa village by night or by day with such assistance as may be required and to use, if necessary, reasonable force for that purpose, and to search every part of the house and to seize and take possession of any property and also of any instruments and materials which he "desai may reasonably believe to be kept for the purpose of gambling and forthwith to bring before this Court such of the said things as may be taken possession of returning this warrant", with an endorsement certifying what has been thereunder "immediately upon its execution. " armed with this warrant, Sub-Inspector Desai went to Avarsa on 26-8-1955 with a Police party. He called the panchas, and the police party then surrounded the house. Sub-Inspector Desai and two panchas went towards the western side of the house and saw 12 or 13 persons sitting on the verandah of the house and they also saw some persons throwing coins on the floor and heard them littering the words "andar" and "bahar". Sub-Inspector Desai signalled the police party to raid the house. When entering the house, he found that some persons were trying to run away. Two of those persons were arrested; they were accused Nos. 6 and 11. Two other persons accused Nos. 9 and 10 who had gone into the house were also arrested, Accused Nos. 1, 2, 3, 4, 5, 7 and 8 were on the Varandah, were also arrested. On the floor of the verandah were lying two packs of playing cards and Rs. 23/8/ - in coins. The playing cards and the money found on the scene were attached under a panchanama. Two more persons were arrested from the village on 27-8-1955. They were accused Nos. 12 and 13. A complaint was lodged against the persons arrested for offence under the Bombay Prevention of Gambling Act, 1887. It was alleged that the first accused was the owner of the house which was raided and that she allowed her house to be used as a common gaming house in consideration of annas 4 to 8 paid to her by the persons accustomed to use her house for gambling, and the other accused were present in the house for the purpose of gaming.

(2.) AT the trial, the prosecution examined B. N. Desai Sub-Inspector in charge of the raid, Narayan Govind police Patil of the village avarsa, Beeranna Honnappa Naik a panch and B. K. Fotdar, the Sub-Divisional Magistrate who issued the search warrant, besides certain other witnesses. In the view of the learned trial Magistrate, the warrant issued by the Sub-Divisional Magistrate Mr. Potdar was a defective warrant and the state was not entitled to rely upon the presumption arising out of the finding of instruments of gaming in the house raided. He held that there was no evidence led by the prosecution to establish that any particular accused "offered stakes" on the alleged game of "andar Bahar" and that there was no independent and reliable evidence to show that the house of the first accused was used as a common gaining house. In the view of the learned Magistrate, the mere finding of playing cards or coins lying on the floor or even of monies on the persons of the accused did not necessarily lead to the inference that the accused or any of them were gambling in a common gaming house. The learned Magistrate on that view of the evidence ordered that all the 13 accused be acquitted and discharged. Against the order of acquittal this appeal has been filed by the State of Bombay.

(3.) WHEN any instrument of gaming has been seized in any house, room or place which has been entered under Section 6 or about the person of any one found therein, the Court may raise a presumption that the house, room or place is used as a common gaming house and the persons found therein were present for the purpose of gaming, although no gaming was actually seen by the police officer or by any person acting under his authority. Section 6 of the act enables a police officer outside the area of Greater Bombay specially authorised in that behalf by a warrant issued by a District Magistrate or a Sub-Divisional Magistrate or a Taluka Magistrate specially empowered by the State Government