BANWARILAL KEDARNATH PARDESHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision application has been preferred by the three petitioners who were originally accused Nos. 1 to 3 in Summary Case No. 697 of 1974 tried by the learned Judicial Magistrate, First Class, of Igatpuri. They along with four others were prosecuted for the offences punishable under sections 4 and 9 of the Bombay Prevention of Gambling Act, 1887. According to the prosecution, accused No. 1 is the occupant of a house bearing No. 203 in Ward No. 2 of Igatpuri town. In the front portion of this house the business of selling medicines is carried on, while in the rear portion, the business of gaming is conducted. One Limaye, a duly authorised officer under section 6 of the Act, normally stationed at Nasik, raided this house on 23rd May, 1973 along with two panchas one from Nasik and one from Igatpuri. After the raid, he found accused No. 1 in possession of certain amount of cash and a publication bearing, according to the P.S.I., Matka figures. The publication itself was named "Bholaram Matka Jokar", accused Nos. 2 and 3, i.e. petitioners Nos. 2 and 3 were found sitting with three slip books having perforation. Other accused were present, according to the prosecution, for the purpose of gaming.

(2.) In support of its case, the prosecution examined P.S.I. Limaye, incharge of the raid, and also the pancha who had been brought from Nasik. P.S.I. Limaye specifically mentioned that he had received information that Worli Matka game was being carried on in this house and after verifying the same, he raided the house. He has along with the pancha proved the seizures of slip books, ball pens and money. The learned trial Magistrate accepted the prosecution case and convicted accused No. 1 under section 4 of the Act for keeping the house for the purpose of a common gaming house. He sentenced accused No. 1 to rigorous imprisonment for three months and to pay a fine of Rs. 500/-. In default of the payment of fine, rigorous imprisonment for one month was directed. All the other accused were convicted for the offence punishable under section 3 of the Act and were awarded various sentences. This order of conviction and sentence was recorded by the learned trial Magistrate on 20th July, 1977 has been confirmed by the learned Additional Sessions Judge of Nasik by his judgment and order dated 14th February, 1978 in Criminal Appeal No. 124 of 1977 preferred by accused Nos. 1 to 3. It is this order that is the subject matter of challenge in the present petition.

(3.) Mr. R.M. Agrawal, the learned Advocate appearing for the petitioners, has challenged the conviction which has been recorded on the basis of presumption arising under section 7 of the Act. According to Mr. Agarwal, on the facts and circumstances of this case, a presumption under section 7 could not have been raised by the Court because the entry made by P.S.I. Limaye into the house of accused No. 1 was not strictly under section 6 of the Act. In order to enable the Court to raise a presumption under section 7 of the Act, P.S.I. Limaye has said the following in his testimony recorded on oath :