K T K A ALAGAPPA CHETTIAR Vs. EMPEROR

JUDGEMENT

(1.) The six accused in C.C. No. 81 of 1931 on the file of the Taluk Magistrate of Tirupathur were convicted of an offence Under Section 9, Madras Gambling Act, 3 of 1930. The convictions were confirmed on appeal. Against this revision petitions are filed by accused 1, 3 and 6. Mr. Mocket appears for accused 1 and accused 3 and 6 are represented by Mr. Jayarama Ayyar. The facts of the case are stated in the judgments of the lower Courts. They are briefly these: P.W. 2. who was on inimical terms with accused 6, gave information to P.W. 1, the Sub-Inspector of Police, Karaikudi, that gambling was going on in the house of accused 6. P.W. 1 applied to the Deputy Superintendent of Police for a warrant and with this he raided the house at 8 15 p.m. on 20 December 1930, accompanied by a Sub-Inspector, four Head constables and three constables. All the six accused were seated on a carpet and a rattan mat in a raised dais in a circle. Each had a small heap of cholis or small shells in his front and each had cards in his hands. There were cash Rs. 3-12-6 and currency notes for Rs. 80 on the carpet and a small casket M.O. No. 1, known as " Table Contribution Box " " Mesai kasu petti " in which the fees or the commission due to accused 6 were put. It was locked and on the request of P.W. 1 it was opened by accused 6 and it contained a five rupee note, cash Rs. 1- 14-0 and 115 cholis and 6 mandys. Two almirahs which were locked were opened by accused 6. In one of them was found M.O. No. 14, another table contribution box. There were also two dozen packs of cards. The main contention in this case is that the onus of proving that the cards etc., were used for the purposes of gaming rests upon the prosecution and that it has not proved it. Alternatively it is argued that if the prosecution has given evidence to this effect, the accused have rebutted the same. The important sections in this connexion are 6 and 11. Section 6 runs: Any cards, dice, gaming table or cloth, board or other instruments of gaming found in any place entered or searched under the provisions of the last preceding section, or any person found therein shall be evidence that such place is used as common gaming house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Police Officer or any of his assistants.

(2.) Section 11 says: Nothing in Secs.5 to 10 of this. Act shall be held to apply to games of mere skill wherever played.

(3.) It was argued that the " evidence " referred to in Section 6 is not presumptive evidence and that the omission of the words " until the contrary be proved " which are found in Section 9 shows this. The corresponding section in the Bengal Public Gambling Act 2 of 1867, Section 6, says: When any cards, dice, gaming table, cloth, boards or other instruments of gaming are found in any house, tent, room, space or walled enclosure entered or searched under the provisions of the last preceding section, or about the person of any of those who are found therein, it shall be evidence, until the contrary is made to appear that such house, tent, room, space or walled enclosure is used as a common gaming house, and that the person found therein were there present for the purposes of gaming....