EMPEROR Vs. CHIMANLAL SANKALCHAND

JUDGEMENT

(1.) This is an appeal by the Government of the Province of Bombay against an order of the Additional Sessions Judge, Ahmedabad, acquitting the accused of an offence punishable under Section 4 of the Bombay Prevention of Gambling Act, 1887. On May 14, 1942, the Sub- Inspector of Police obtained from the Assistant Superintendent of Police a warrant under Section 6 of the Act to raid and search the room occupied by the accused. Armed with that warrant, the Sub-Inspector sent a bogus punter with six marked rupees and some slips on which figures for American future were entered. As instructed by him the bogus punter went to the room of the accused, offered him those six rupees and offered bets on the figures which he had taken down on the slips. The accused accepted the bets and wrote out the figures on the cover of a book of songs. The bogus punter then gave a signal and the police raided the shop along with panchas. The marked coins and the book were then found by the panchas lying near the accused. A panchnama was drawn up and after some further investigation a charge-sheet was sent up against the accused both under Secs.4 and 5 of the Act. The learned Magistrate convicted him under both the sections and sentenced him to pay a fine of Rs. 200 or in default to suffer rigorous imprisonment for six weeks under Section 4 and to pay a fine of Rs. 25 or in default to suffer rigorous imprisonment for one week under Section 5. The accused having appealed to the Sessions Court, the learned Additional Sessions Judge confirmed the appellant's conviction and the sentence passed on him under Section 5, but set aside his conviction and sentence under Section 4 on the ground that the accused was not proved to have been using the room to make a profit out of the gambling there. He observed that there was no evidence worth the name to prove that the accused made any profit or gain by the use of his room for the purpose of gambling. In his opinion the accused who received bets would be a mere gambler, but what is required for conviction under Section 4 is not a mere proof that he is a gambler but that he made some profit by making use of his room for gaming.

(2.) In Section 3 of the Act a common gaming house is defined as meaning a house, room or place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying or keeping such house, room or place or of the person using such house, room or place whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instruments of gaming or of the house, room or place or otherwise howsoever.

(3.) The question whether it is necessary to prove expressly that the person charged with keeping a common gaming house made a profit or gain out of the gambling: carried on in that house has been discussed in various rulings of different High Courts. In Lachchi Ram v. Emperor [1922] A.I.R. All. 61 the Allahabad High Court, interpreting the corresponding definition of a common gaming house in Section 3 of the United Provinces Public Gambling Act, 1867, which is similarly worded, held that it must be established that the owner or occupier takes a fixed commission which is irrespective of the result of the gaming, or at least that he manipulates the conditions in such a manner that he cannot possibly lose. The correctness of that decision was doubted in a later case - and the question was referred to a full bench in Emperor V/s. Atma Ram (1924) I.L.R. 46 All. 447 F.B. The question referred to the full bench was whether the words "for the profit" necessitated proof that profit was certain to result or whether it was sufficient that the instruments were used in the hope of profit. But that question was not decided by the full bench as it found that in the particular case profit was certain to result and, therefore, in any event the particular case came within the more strict interpretation, assuming that interpretation was the correct one. The ruling of the full bench was considered by Boys J. in Emperor V/s. Ismail (1927) I.L.R. 49 All. 562, and he observed (p. 564): If I had to decide the point I should unhesitatingly hold that it was not necessary to prove that profit was certain to result. In my opinion a mere expectation of profit would suffice.