EMPEROR Vs. ABASBHAI ABDULHUSSEIN

JUDGEMENT

(1.) This is an appeal by Government from the decision of the First Class Magistrate of Poona acquitting the three accused, who were charged - as to Accused No. 1 under Section 4 and as to Accused Nos. 2 and 3 under Section 5 of the Bombay Prevention of Gambling Act(Act IV of 1887). The learned Magistrate heard the case throughout, but upheld an objection taken by the accused that the search warrant, which purported to have been issued under 8. 6 of the Act, was bad. He accordingly held that an unlawful procedure had been adopted in arresting the accused without complaint and without warrant, and that the case could not now be converted into a non-cognizable case and must be dismissed. We are told by the learned Government Pleader that this last point was never argued at the trial, but was first taken by the learned Magistrate in the course of his judgment.

(2.) The question of the legality of the warrant is in the nature of a preliminary objection and we agree with the learned Magistrate that the warrant was bad. The warrant referred only to "House No. 486, Peth Budhwar, Poona City"; whereas the house actually searched was not 486 but 484. The learned Magistrate has himself inspected the locus in quo and we accept his finding on that point. There is no other description of the property as there was in Emperor V/s. Krishna Rutna Dalvi [1903] 6 Bom. L.R. 52 and Emperor V/s. Jhunni [1905] A.W.N. 105. So there is nothing else to identify the property. If there had been, we might have seen our way to reject the number 486 as falsa demonstratio, and to rely on the rest of the description as one might say in a conveyance.

(3.) What then are the consequences which follow from the fact that the warrant was an illegal one. We agree with the decision in Emperor V/s. Jaffur Mahomed [1912] 37 Bom. 402 that if the warrant was bad then the presumption under Section 7 of the Act cannot be made. But it is important to observe that in the case just cited it was conceded by both sides that the validity of the conviction depended solely on whether that presumption could be made. I refer in particular to what is said in the judgment of the Court at page 110. In our opinion, in the present case, the mere fact that the presumption under Section 7 cannot be raised does not prevent the prosecution from establishing by evidence in the ordinary way that on the facts proved the accused were guilty of the offences charged.