EMPEROR Vs. MANILAL MANGALJI

JUDGEMENT

(1.) In this case the applicant, Manilal Mangalji, has been convicted by the learned Third Presidency Magistrate of managing or assisting in conducting the business of a common gaming house under Section 4 of the Bombay Prevention of Gambling Act IV of 1887, and has been sentenced to one month s rigorous imprisonment.

(2.) The only point of law urged by the learned counsel for the applicant is that a certain green book, in which were recorded entries of the bets made by those frequenting the room managed by the applicant, is not an instrument of gaming within the definition of that term in Section 3 of the Act. Unfortunately, however, for this argument, a Bench of this Court has decided against it in the case of Emperor v. Lakhamsi (1904) 6 Bom. L.R. 1091 which followed the decision in King-Emperor v. Tribhowandas (1902) 4 Bom. L.R. 271 where the judgment of Mr. Justice Fulton was presumably specially relied upon. We are bound by the decision in Emperor v. Lakhamsi unless we are prepared to refer the matter to a Full Bench. That I am not prepared to do, though I recognize that in view of the divergence of judicial opinion to which this topic has given rise, my own view must be expressed with diffidence. Speaking for myself, then, I agree with the decision in Emperor v. Lakhamsi. It is to be observed that the definition in Section 3 of the Act is an inclusive definition, the words reading that the "expression instruments of gaming includes any article used as a subject or means of gaming." The whole argument has turned-and I think rightly turned-upon the correct signification of the word means in this definition. Now as there is nothing to the contrary in the Act, it is clear that the word means, which is a popular word and not a term of art, must be construed in its popular sense, that is to say, in the sense in which the word would have been understood amongst ordinary Englishmen the day after the statute was passed: see Reg. v. Commissioners of Income Tax (1888) 22 Q.B.D. 296 which was affirmed in Commissioners for Special Purposes of Income Tax v. Pemsel [1891] A.C. 531 and The Fusilier(1864) 34 L.J.P.M. & A. 25, where Dr. Lushington said "one of the rules of construing statutes, and a wise rule too, is, that they shall be construed uti loquitur vulgus, that is, according to the common under standing and acceptation of the terms." So far as I am able to understand the current usuage of this ordinary word means, I should say, having regard particularly to the inclusive character of the definition which we are interpreting, that it must include a thing or article, such as this green book, which was specially contrived and used to promote and facilitate the wagering. I say it was specially contrived and used for this purpose, because in fact it contains nothing but pencilled memoranda of the wagers made. Mr. Jinnah has contended that the wagering might conceivably have been carried on without the assistance of a book to record the wagers, and that no doubt is so. But the question is, when a book is in fact used so as to record the wagers, what is the position of that book? Is it or is it not a means of wagering within the definition ? In our present case, as it appears to me, the reasonable inference is that it was found by those engaged in this wagering that the wagering could not conveniently be conducted otherwise than with or, I think I may say, by means of this green book; in other words, it was found desirable to maintain this book as a method or, I think, a means of carrying on the wagering which without it could not have been carried on without great or insuperable difficulties.

(3.) For these reasons, though I am sensible of the difficulty created by the divergent view expressed by other single Judges in Queen-Empress v. Kanji Bhimji (1892) I.L.R. 17 Bom. 184 and Emperor v. Jesang Motilal , it is my opinion that the case of Emperor v. Lakhamsi (1904) 6 Bom. L.R. 1091 was correctly decided, and that we ought now to follow it and hold that the green book in the case before us was a means or instrument of gaming within the definition in the Act.