EMPEROR Vs. BHAGGI LAL

JUDGEMENT

(1.) BHAGGI Lal, the applicant, has been convicted under Section 3 of Act No. Ill of 1867 as amended by Act No. I of 1917 of the Local Council, for keeping a common gaming house. The applicants in the connected case No. 50 have been convicted under Section 4 of the said Act. It has been found that in a house which was owned or kept by BHAGGI Lal a large number of persons (about 65) were discovered by the police gambling on a particular night. The police had obtained a warrant under Section 5 of the Act and the validity of the warrant is not questioned. It is not disputed that gambling was going on in that house and that the persons who were arrested and who have been convicted were gambling there. The main contention is that the...house was not a common gaming house - within the meaning of the Act. That depends upon the further question whether instruments of gaming were found in the house. Under the definition of the expression Instruments of gaming" as given in Section 2 of Act No. I of 1917, an instrument of gaming includes any article used as a means or appurtenance of, or for the purpose of carrying on or facilitating gaming. In the present case certain articles were found in the house, called solahis, which are cowries, and these were used as a means for carrying on gambling. Therefore the articles found in the house were instruments of gaming. As the house was searched under a warrant properly issued and instruments of gaming were found in the house, that circumstance is, under Section 6 of the Act, evidence that the house was used as a common gaming house, unless the contrary was proved. In the present case there is no evidence to the contrary. Therefore under Section 6 it must be presumed that the house in question was a common gaming house. In addition to this a witness was examined who deposed that BHAGGI Lal. was making . a profit and charging a commission for the use of his house for purposes of gambling on that particular night. It is stated that the witness was an approver and therefore his evidence ought not to be accepted without corroboration. It appears that the witness, whose name was Mujahid Khan, was examined under Section 10 of the Act. The court was competent to examine him on oath, and his evidence," if believed, could be acted upon, and if the court was of opinion that he had made a true statement, it might grant him a certificate freeing him from prosecution in connection with the gambling. This, it seems, was done in the present case. Whether a certificate was granted or not is immaterial, but no pardon had been granted to the witness and he was not examined as an approver within the meaning of the Code of Criminal Procedure. As already stated, he was examined by the court in exercise of the authority which the court had under Section 10 of the Act. Thus in the present case we have first of all the presumption that by reason of the discovery of instruments of gaming in the house occupied by BHAGGI Lal, the house was a common gaming house, and we have the additional fact that there is positive direct evidence that he used to make a profit by allowing his house to be used as a place for gambling. BHAGGI Lal has, therefore, been rightly convicted. It necessarily follows from the fact that the other persons were gambling in the common gaming house kept by BHAGGILal, that their conviction is legally correct. I have been asked to interfere with the sentence as being excessive. This was a bad case of gambling in which a large number of parsons of various castes had assembled together and no less than Rs. 1,400 were found in the possession of the men who were carrying on the gambling. In these circumstances I do not think I should be justified in interfering with the sentence. I accordingly dismiss the application.