DR RANGA LAL SEN Vs. EMPEROR

JUDGEMENT

(1.) These two appeals have been heard together. They originally on for hearing before myself sitting alone. But in view of the importance of some of the points raised, I thought it desirable that they should be heard by a Division Bench. The appellant in Appeal No. 582 is orie Dr. Ranga Lal Sen. He has been convicted of offences punishable under Sub-section 44 and 45, Calcutta Police Act. The other appellant is one Mr. Jacob who was convicted of an offence punishable under Section 45 of that Act. The facts are extremely simple. The alleged common gaming house is situated in a consulting room at the Eastern Drug Stores, 17 Park Street. The appellant Sen is one of the Doctors who may be consulted by patients at that place. P. W. 1 Sergeant Clarke, came with a search warrant from the Deputy Commissioner of Police, Mr. Duckfield, and searched the place on the 29 June last. His evidence is that he found both the appellants sitting at a table. Sen was filling in a betting slip and a sum of Rs. 11-8-0 was found on the table. Other betting slips were also found in a drawer. Now we have no doubt at all from this evidence that at the time of the search Jacob was making a bet with Sen. He never even suggested that he had gone there for the purpose of a professional consultation. Sen alleged that the money found on the table had been sent to him on account of his fees for professional attendance by a man named Herbert, and he called the defence witness Bannerjee, who is one of the partners of the Eastern Drug Stores, to prove it. Bannerjee says that the money was sent in a letter from Herbert about ten minutes before the search. There is no reason why Bannerjee should know what the contents of the letter were and no reason why the money should be found on the table. Herbert has not been examined. We have no doubt that this explanation is false and that the money had been put on the table by Jacob in connection with his betting.

(2.) Now it is quite clear that this evidence in itself would be quite insufficient to show that this consulting room was a common gaming house. The prosecution in fact relied on the provisions of Section 47, Calcutta Police Act, and contend that the finding of the betting slips is evidence that the consulting room is used as a common gaming house and that Sen and Jacob were there for the purposes of gaming. Mr. Bhattacharjee contended on behalf of the Crown that, altogether apart from this section, if Jacob was betting with Sen, Sen was presumably hoping to make a profit, and this is sufficient to establish that the room in question is a common gaming house. We are certainly not prepared to assent to that proposition; on such a construction the elaborate definition contained in Section 3 of the Act would be wholly unnecessary. The question has been considered in two cases to which our attention has been drawn. In Walvekar V/s. Emperor 1926 Cal 966, Section 47 did not apply. It was however found that the evidence itself afforded sufficient proof on the point. In that case betting was carried on in the premises and fees were realised by the persons who were in charge of the place. The question was also elaborately considered by Costello, J. in M.A. Adams V/s. Emperor 1935 Cal 466. We respectfully agree with what is stated there. In our opinion the definition of a common gaming house implies that, altogether apart from money which may be made or lost at the actual gaming, some sort of profit must be made by the person referred to in the definition. In the present case, if persons merely bet with Sen, that would not be sufficient to make the place a common gaming house; on the other hand, if admission fees are levied or if Sen pays money to Bannerjee that he may allow the room to be used as a place for carrying on the betting, the terms of the definition show that the place is a common gaming house.

(3.) In order to determine whether Section 47 of the Act applies it is necessary to see whether there was a proper search within the provisions of Section 46. Unless the provisions of those sections are strictly interpreted and complied with, there can be no doubt that persons will be improperly convicted. Now in the present case the prosecution produced the warrant issued by Mr. Duckfield, Deputy Commissioner. It purports to be in full conformity with the requirements of Section 46 and the question which remains for consideration is whether the Court may presume that the necessary formalities were complied with. In Walvekar V/s. Emperor 1926 Cal 966 cited above the learned Judges refused to draw any presumption. But in that case from the warrant itself, on its very face, it did not appear that the Deputy Commissioner had any reason to believe that the premises searched were a common gaming house and on that ground it was held that a presumption ought not to be drawn. The last two sentences in the judgment of C.C. Ghose, J., might support an inference that such a presumption ought never to be drawn. But when the passage is carefully read it is clear not merely that the main part of the discussion was directed to the defect in the warrant but that in this sentence the learned Judge mentions "other cases of this description."