BAIJNATH Vs. EMPEROR

JUDGEMENT

(1.) The petitioners were all convicted of an offence punishable under Section 4, Gambling Act, and sentenced to rigorous imprisonment for 15 days. They appealed to the learned Sessions Judge without success and then obtained this Rule on grounds 5, 6 and 7 mentioned in the petition. Now, the first two of these grounds really go together. The point is this: The prosecution cannot succeed in this case unless they can rely upon what is practically the presumption laid down in Section 6 of the Act. Before this comes into play at all there must be a search under the. provisions of Section 5. Now, the search warrant directed the search of the house of a man named Umda Khalifa. The case of the petitioners has always been that they were actually playing cards in the house of his brother.

(2.) Before the prosecution could rely on Section 6 it is absolutely necessary for them to show that the place where the petitioners were found gambling really was the place named in the warrant. Now, neither the learned Magistrate nor the learned Judge came to a specific finding upon this absolutely essential point. In view of the evidence given by the search witness Saroj Kumar Sarkar the case of the petitioners appears to be absolutely correct and the house searched was not the house named in the warrant at all. In these circumstances these convictions cannot be supported. Therefore, we make this Rule absolute, set aside the convictions and sentences, and direct that the petitioners be discharged from their bail. R.C. Mitter, J.

(3.) I agree.