EMPEROR Vs. POKKA KUSLAPPA BANT

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge at Karwar recommending that the conviction of the six accused by the Sub-Divisional Magistrate, First Class, Karwar Town, under Section 5 of the Bombay Prevention of Gambling Act, should be set aside and the accused acquitted and discharged. The charge against the accused was that accused No. 3 had kept a common gaming house at Keni, a suburb of Ankola, and that all the accused were found there engaged in playing cards for stakes. The Police Sub-Inspector of Ankola received information that three cottages in survey No. 166/A belonging to Dani, Yeshwant and Janaki were used as common gaming houses, and on August 20, 1945, he obtained a warrant from the First Class Magistrate, Ankola, to search these houses and seize the instruments of gaming found there. On August 23, 1945, the Police Sub-Inspector got information that gambling was going on in Dani's house. It was then about 11 p.m. and he proceeded to that house with a party of constables and panchas. Peeping through a hole, he found that all the six accused were then engaged in playing with cards what is known as pat game with two annas stakes. The party entered the room and found the six accused sitting in a circle playing cards, with a sum of Rs. 3-11-0 placed in the centre. As soon as the party entered the room, the accused began to run away. They were all caught and a panchnama was drawn up. After completing the investigation, a charge sheet was sent against all the six accused, accused No. 3 being charged under Section 4 of the Bombay Prevention of Gambling Act and the other accused under Section 5.

(2.) The learned Magistrate who tried the accused found that the house belonged to Dani, and accused No. 3, who was thought to be the son of Dani, was really not her son and had nothing to do with that house. The charge under Section 4 was, therefore, held not proved against (him, but as all the six accused were found playing there for stakes and the instruments were seized on a search made under a warrant issued under Section 6 of the Act, a presumption under Section 7 was raised and all the six accused were convicted under Section 5 of the Act.

(3.) The learned Sessions Judge has recommended their acquittal mainly on three-grounds, viz. that the warrant under which the search was conducted was not legal and proper, that no instruments of gaming were found there, and that even if a presumption might be raised under Section 7, yet it was rebutted by the fact that all the accused were related to each other and they were enjoying a game of cards in a holiday mood as it was naralipaurnima.