RATHINA GRAMANY Vs. EMPEROR

JUDGEMENT

(1.) The three petitioners have been convicted of conducting a common gaming house Under Section 45, Act 3 of 1880. The Police Inspector P.W, 1 raided the hut on 2 December, 1931. He found A-2, A-3 and 8 others playing cards with stakes. He seized the playing cards with some cash which was on the ground. His enquiry showed that A-2 and A-3 were conducting the gaming house and that A-1 and the absent accused Kuppuraju were also connected with the management. This Revision Petition has been put in against the conviction and I think it must be allowed. There is no evidence that the hut was searched on a warrant and consequently the presumption which could be raised Under Section 43 from the finding of instruments of gaming that the place was used as a common gaming house does not arise and it must be shown independently that the accused were guilty of the offence Under Section 45 by opening, keeping or using or permitting to be used this hut as a common gaming house. Common gaming house" is defined as any enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person ownin", occupying, using or keeping such enclosure, room or place, whether by way of charge for the use of instruments of gaming or of the enclosure, room or place, or otherwise howsoever.

(2.) The evidence of the Inspector on this point is admittedly hearsay. But the prosecution relies on the evidence of P. W. 2 who said in chief: I know the hut in question. Gambling for money has been going on there for the last 8 or 9 years. Kuppuraju and A-l are responsible for conducting it and A-2 and A-3 are in charge of the collections. I have seen them on several occasions gambling for money and making collections.

(3.) There is nothing further on the point in cross-examination. The question therefore, is whether this evidence sufficiently brings home to the accused that they were conducting this common gaminghouse for which it is essential to prove that they made a profit out of it: vide Puran Mull Biwani V/s. Emperor where it is said that profit or gain is the cardinal constituent of the definition of a common gaming house. Therefore unless there is sufficient evidence on the record to make out this element of profit or gain against the accused, a conviction for keeping or using a room as a common gaming house cannot be had: vide also the ruling in In reNanjappa Goundar [1882] 1 Weir 918.