EMPEROR Vs. SAVLARAM KASHINATH JOSHI

JUDGEMENT

(1.) I have had the opportunity of reading the judgment about to be delievered by my brother Lokur J. I am in entire agreement with it and have nothing further to add. Lokur, J.

(2.) This is an appeal by the Government of the Province of Bombay against the order of the Additional City Magistrate, First Class, Poona, acquitting the twelve accused who were charged under Secs.4(a) and (b) and 5 of the Bombay Prevention of Gambling Act. The Sub- Inspector of Police Mr. Gole received information that gambling was going on in Room No. 14 of House No. 672 in Budhwar Path. He obtained a special search warrant under Section 6 of the Bombay Prevention of Gambling Act, 1887, from the Deputy Superintendent of Police, Poona City Sub-Division, Mr. Crone, and raided that room on November 11, 1944. He found all the twelve accused gambling with playing cards there. He arrested them, made a panchnama and sent all the twelve accused for trial. It was conceded that accused No. 1 was the occupant of the room and was, therefore, charged under Section 4(a) and (b) of the Act, while the other eleven accused were charged under Section 5 of the Act. The learned Magistrate refused to raise a presumption under Section 7 of the Act on the ground that the warrant issued by Mr. Crone was not legal and valid for two reasons.

(3.) The first ground of attack on the validity of the warrant is that there is no evidence to prove that Mr. Crone, the Deputy Superintendent of Police, who issued it, was satisfied, upon any complaint made before him on oath and upon making such inquiry as he thought necessary, that there were good grounds to suspect that the said room was being used as a common gaming house. This condition precedent is laid down in the proviso to Section 6, and unless it is fulfilled, the warrant would be ultra vires. The warrant issued by Mr. Crone in this case commences with a preamble that such a complaint on oath had been made to him and that there was reason to suspect that the room of accused No. 1 was being used as a common gaming house. But the learned Magistrate says that such a statement does not prove itself and that some evidence is required to prove it. But according to ill (e) to Section 114 of the Indian Evidence Act, it is to be presumed that the officer issuing the warrant has performed his duty correctly, and that presumption has not been rebutted in this case. In Emperor v. Vallibhai [1982] 34 Bom. L.R. 1447 such a presumption was raised even though the warrant had no such preamble as the warrant in the present case, and Beaumont C.J. said (p. 1448): It is, I think, usually desirable that a warrant issued under the terms of a particular statute should show on its face that the conditions precedent required by the statute have been complied with, but it is not in my view essential that the warrant should so show. There is a presumption under Section 114, ill. (c), of the Indian Evidence Act, which enables us to presume that the officer issuing the warrant has performed his duty correctly, and until that presumption is displaced, it id not, in my opinion, necessary for the officer to give any evidence in the matter.