BRIJLAL Vs. STATE

JUDGEMENT

(1.) This reference comes on the report of the learned Additional Sessions Judge, Sikar, dated 7-8-1958.

(2.) The facts giving rise to this case are that on 21-12-1957, the District Superintendent of Police, Sikar, upon credible information, came to believe that the house of one Brijia situated in the locality called Nala Ka Bas at Sikar was used as a common gaming house and therefore he issued a warrant under Section 5 of the Rajasthan Public Gambling Ordinance, 1949 (which will hereinafter be referred as the Ordinance) and authorised the Sub Inspector of Police, Kotwali Sikar, to search the said house and arrest the persons who may be found gaming therein. The Sub Inspector was also authorised to seize instruments of gambling, money etc. if found at the said place. Shri Rajni Prasad, Sub Inspector of Police (P. W. 2) thereupon went to the said place and he actually found 6 persons gambling with cards and money on the roof of the said house (Brijia's house). He arrested them, seized cards and money totalling Rs. 26-10-9 and, after investigation, prosecuted all of them lor offences under Sections 3 and 4 of the Ordinance. The Sub Divisional Magistrate, Sikar, convicted and sentenced all of them to pay a fine of Rs. 15/- each on 30-5-1958. Only one of the 6 accused, namely, Brijia alias Brijlal presented a revision application which was heard by the learned Additional Sessions Judge, Sikar, It was contended by the petitioner in that court that under Section 5 of the Ordinance the District Superintendent of Police could authorise by a warrant only such an officer of the police who was not below a particular rank which the Government could fix in that behalf and that since the Government had not determined the rank of the police officer under the said section, the warrant issued and the search conducted thereunder, were illegal, and therefore the petitioner's conviction was also illegal. This argument found favour with the learned Judge and he has recommended that the petitioner's conviction should be set aside.

(3.) Nobody has appeared in this Court on behalf of the petitioner Brijlal. Learned Assistant Government Advocate has, on the other hand, opposed the reference. It is very candidly conceded y him that although the State Government has appointed all officers of police not below the rank of Sub Inspector for purposes of Section 5 of the Ordinance, that notification is dated 7-8-1958, while the warrant in the present case was given on 21-12-57, and therefore, it could not be said to be in accordance with law. It is however urged by him that the mere fact that the search warrant was not legal, did not absolve the accused from the offences committed by them, and that since there is enough evidence on record to show that all the accused were actually found gambling, their conviction was quite correct and should not be set aside.