EMPEROR Vs. SAVLARAM KASHINATH JOSHI

JUDGEMENT

(1.) I have had the opportunity of reading the judgment about to be delievered by my brother Lokur J. I am in entire agreement with it and have nothing further to add. Lokur, J.

(2.) THIS is an appeal by the Government of the Province of Bombay against the order of the Additional City Magistrate, First Class, Poona, acquitting the twelve accused who were charged under Sections 4 (a) and (b) and 5 of the Bombay Prevention of Gambling Act. The Sub-Inspector of Police Mr. Gole received information that gambling was going on in Room No.14 of House No.672 in Budhwar Path. He obtained a special search warrant under Section 6 of the Bombay Prevention of Gambling Act, 1887, from the Deputy Superintendent of Police, Poona City Sub-Division, Mr. Crone, and raided that room on November 11, 1944. He found all the twelve accused gambling with playing cards there. He arrested them, made a panchnama and sent all the twelve accused for trial. It was conceded that accused No. 1 was the occupant of the room and was, therefore, charged under Section 4 (a) and (b) of the Act, while the other eleven accused were charged under Section 5 of the Act. The learned Magistrate refused to raise a presumption under Section 7 of the Act on the ground that the warrant issued by Mr. Crone was not legal and valid for two reasons.

(3.) THE second objection urged against the validity of the warrant is that Mr. Crorie was not specially empowered to issue a warrant under Section 6.Prior to 1926a warrant under Section 6 could be issued only by a Magistrate of the First Class or a District Superintendent or an Assistant Superintendent "empowered by Government in this behalf. " By the amending Act V of 1026, the words "assistant or Deputy Superintendent" were substituted for the words "assistant Superintendent. " THEn by Notification No.8842/2, H. D. , dated August 23, 1028, Assistant Superintendents and Deputy Superintendents at six specified places including the Poon City were by virtue of their office empowered to issue warrants under Section 6.THEn the amending Act I of 1936 replaced the old section by an entirely new one, and the change, with which we are concerned in this appeal, was that the word "empowered" was altered to "specially empowered. " I do not think that any significance was intended to be attached to the change in the language. In Emperor v. Udho [1943] A. I. R. Sind 107 relied upon by the learned Magistrate, the expression "specially empowered" was interpreted to mean specially empowered by name and not by virtue of his office. If so, the notification of 1928 which empowers any Assistant or Deputy Superintendent posted at the six specified places would be ultra vires, and with all respect, I do not think that the expression is intended to carry: that meaning. THE words are evidently taken from Sub-section (J) of Section 89;of the Criminal Procedure Code, which says: In conferring powers under this Code the Provincial Government may, by order empower persons specially by name or in virtue of their office, or classes of offices generally by their official titles.