EMPEROR Vs. IBRAHIM HAJI ABDUL RAHIMAN

JUDGEMENT

(1.) THIS is an appeal by the accused against his conviction under Section s 4 (a) and 5 of the Bombay Prevention of Gambling Act. The appeal raises a question which has become rather common in these gambling cases -the question being as to the rights of the accused over the passage in which the gambling took place.

(2.) THE facts are not really in dispute. THE accused occupies a room on the second floor of a certain building, and he was found by the police, with accused No.2, in a passage on the ground floor of that building. He was writing something on a piece of paper and talking with accused No.2, and on search of the passage certain instruments of gaming were found in the passage. THE first question which arises is whether he was guilty under Section 4 (a) of the Gambling Act as being a person who was the owner or occupier or had the use of the place where instruments of gaming were found;, that is to say the passage, which is no doubt a place within the meaning of the Section. THE second question is whether he was present in a common gaming-house for the purpose of gaming so as to be guilty under Section 5.Now a very similar case was decided by this Court : Emperor v. Gulam Hussein Rawji (1939) 41 Bom. L. R. 1326. In that case we held that in Section 4 (a) the words "or having the use of" must be read ejusdem generis with the preceding words " owner or occupier " and included only a person having some right over the place-a right less than a right of ownership or occupation but still a definite right, for example a right arising under a licence. In that case the accused had no interest whatever in the passage ; he did not live in the building in which the passage was situate, and he was for all purposes a trespasser in the passage. In the present case the accused lived in a room to which the passage led, the room being on the second floor, and the passage being on the ground floor, and one can safely infer that the accused would have a right of passing along the passage for the purpose of getting to and from his room. Whether he was expressly granted that right or not, we do not know ; but at any rate it would be a right implied from the fact that the room in this building was let to him; but prima facie that would be the extent of his right. In the absence of any evidence to the contrary, we could not infer that the accused had any right, express or implied, to remain in the passage for the purpose of gambling or carrying on his business or for any other purpose. It was only a right to pass and re-pass along the passage. But it is argued by the learned Government Pleader that the accused having a right of way over the passage was a person " having the use" of the passage, and in Emperor v. Krishnaji Madhusudan (1939) 41 Bom. L. R. 1114 Mr. Justice Broomfield suggested that the fact that the accused had a right of way over the passage might constitute a sufficient right of user within Section 4 (a), but the point did not arise for decision in that case. It was there held that no presumption arose under Section 7 of the Act, so that the observations of Mr. Justice Broomfield were dicta only. In the present case the point does arise for decision, and in my opinion, the decision of this Court in Emperor v. Gulam Hussein Rawji really covers this case. As I have said, we there held that having the use of premises meant having a legal right to use, and I think that means a legal right to use for the purpose in controversy. THE fact that the accused had a right to use the passage for a purpose which did not cover the user to which he was putting the premises seems to me to be irrelevant. Of course, it might be held on the facts of a particular case that the accused had an implied right to use the passage for purposes more extensive than a mere right of way. If the passage led only to the accused's room, and there was evidence that he was using it for general purposes, for example if he had a chair or a table in the passage, or if it were shown that the landlord or his agent knew that the accused was using the passage for general purposes, or for a particular purpose which might cover gambling then the Court might hold that the accused was a person having the use of the passage. But in this case we have no evidence whatever that the landlord or his agent knew the purposes for which the passage was being used, or that the accused had any right to use it except as a means of passage. In my opinion, therefore, there is no evidence in this case that the accused had a right to the use of the passage within the meaning of Section 4 (a) of the Gambling Act, and therefore his conviction under that sub-Section cannot stand.