J B BEATTIE Vs. EMPEROR

JUDGEMENT

(1.) These appeals have given me considerable difficulty with regard to my decision. Appellant 1, Mr. J.B. Beattie, was convicted by the Officiating Fourth Presidency Magistrate under Section 44, Calcutta Police Act, for owning, occupying and having the use of the premises used as a common gaming house. Under this conviction he was sentenced to pay a fine of Rs. 500 with an alternative of three months rigorous imprisonment if the fine was not paid. Appellant 2, Mr. A.W. Smedley, who is said to have been the manager of Mr. Beattie's business, was convicted also under the same section but under another part of it for managing or having the care of this firm and he was further convicted under Section 45, Police Act, for being engaged in gambling on the premises.

(2.) Under the first conviction he was sentenced to a fine of Rs. 400 with an alternative on non-payment of three months rigorous imprisonment, but no separate sentence was passed under the second conviction for contravention of Section 45. As to appellants 3 and 4, who were said to be employees of the firm owned by Mr. Beattie, they were both sentenced under Section 45, appellant 3 was fined Rs. 100 with one month's alternative rigorous imprisonment and appellant 4 was fined Rs. 200 with an alternative sentence of one month's rigorous imprisonment. The case appears to have been tried in rather a slapdash fashion. Not a large volume of evidence was produced for the prosecution and no evidence was produced for the defence, although three written statements were put in to represent before the Court the views of the accused persons. But the material contained in these written statements is not, of course, strictly evidence under the c riminal procedure and the ordinary rules of evidence required in criminal Courts. The Calcutta Police Act and those sections which it contains dealing with betting and gambling are not examples, in my opinion, of very satisfactory statutory draftsmanship. The pivot of the whole of the prosecution case is as to what is the meaning in law of the expression "common gaming house." It is defined in Section 3 of the Act and that definition is a very comprehensive one. It is in these terms: Common gaming house" means any house, room, tent or walled enclosure, or space, or vehicle or any place whatever, in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, space, vehicle or place, whether by way of charge for the use of such house, room, tent, enclosure, space, vehicle, place or instruments or otherwise howsoever.

(3.) There has been a conflict of judicial opinion as to how the expression otherwise howsoever" must be interpreted. The views of the Judges of this Court, as I understand, are that such premises are not strictly within the meaning of the language of the Act unless some fixed charge or profit accrues regularly to the person who is occupying or keeping the premises quite apart from any fluctuating profit which may occur from time to time between the gamblers themselves as a result of the gambling.