EMPEROR Vs. HORMAZDYAR ARDESHIR IRANI

JUDGEMENT

(1.) The appellant has been found guilty of offences punishable under Secs.4A and 5 of the Bombay Prevention of Gambling Act of 1887, and sentenced to pay fines of Rs. 500 and Rs. 75 respectively under the two sections. He is the proprietor of a shop named Hormazdyar Cold Drink Depot on Elphinstone Road in Bombay.The case against the accused was as follows. Inspector Kadam and Sub-Inspector Shaikh of the Anti-Gambling Squad, Bombay Police, who were both officer specially authorised under Section 6 of the Act, having received and verified information that satta bets were being received in the said shop, arranged a raid on June 24, 1946. Four different punters were provided with different Sums of money (Rs. 2 or Rs, 3 each) in currency notes of one rupee each, which were marked in the presence of panchas, after which they entered the shop one after another, laid bets on different figures, and then came out of the shop. The police-officers remained on watch at convenient places outside, and they saw each one of them dealing with accused No. 1, who was at the counter. The monies paid by them were seen to be received by accused No. 1 who then wrote something on a book.. Accused Nos. 2, 8 and 4 were also seen going in and coming out after some transactions with the accused. The shop was thereafter searched in the presence of the panchas, and the ten currency notes of one rupee each, which had been supplied to the punters were found in a drawer of the counter at which accused No. 1 was seated. Other monies were also found in another part of the shop. Amongst the documents, found and seized were two Persian books and three exercise books, the writings in which could not be deciphered, and some chits similarly written. Monies were found with accused Nos. 2, 3 and 4, and two leaflets were found on the person of accused No. 2. While the search was proceeding, accused No. 5 came into the shop with Rs. 100-11-0 on his person with some figures on some of the currency notes which formed part of the said sum. Both the police officers were examined in Court, but one of them (Sub-Inspector Shaikh) not being fully cross-examined owing to his illness, his evidence could not be considered by the Court. Three out of the four bogus punters and two pacnhas were examined. The three bogus punters have stated that they laid bets with the accused after which he wrote something; and they did not say anything, either in their examination in chief or in their cross-examination, as to their having ordered or received any drinks or" other articles at the shop. One of the panchas has stated that there were some soda and lemonade bottles in the shop. Two panchnamas were produced, one regarding the handing over of the marked currency notes to the bogus punters, and the other regarding the search of the shop and the articles found therein. No panchnama regarding the search of the bogus punters after they came out of the shop after laying bets appears to have been made. Inspector Kadam has stated that he had personally watched the shop before and seen people laying bets there, that the bogus punters went in and gave money to accused No, 1 after which the accused was seen writing in a book on the counter, that he saw the punters coming out and that thereafter they had no occasion to approach or inform us . The book which was on the counter, according to this witness, was exhibit. A, an exercise book the writing in which it was not possible to decipher. The accused has said that he did not accept satta bets, that it was difficult for him to explain how the marked currency notes came to be found in his shop, as many customers attend my shop, that he was in the habit of writing and making notes in books, and that the writing was not regarding satta bets. The trial Court has held that specially authorised officers having raided the place and the marked currency notes alleged to be instruments of gaming being found, a presumption arises that the place was a common gaming house, and that those who were found there were there for gaming. As to the two exercise books, the writings in which could not be deciphered, the Court has been inclined to take the view that writings of this nature indicated that the writer wanted to conceal his acts, that is, that the writings amounted to a certain kind of concealed code. It has remarked that two of the bogus punters may be regarded as fairly reliable, one of them never having laid bets or acted as a panch before, though it has recognised the ordinary rule that the Court ought to be extremely cautious in accepting the evidence of such witnesses. It has relied on the evidence of Inspector Kadam and a panch witness who watched the bogus punters operations from outside the shop at close quarters, and observed that it is not the case of the accused that the marked currency notes were planted by those officers. In its opinion as it was not alleged by accused No, 1 that he had any servants working under him, it is unlikely that anybody supplied drinks to the punters as contended by the accused. Finally, holding that it was not possible to say that in this case the two police officers had conspired among themselves to fabricate a false case against the accused, it has come to the conclusion that the bogus punters did lay bets with the accused with their monies ; and that, apart from the evidence on the merits, the marked currency notes found were instruments of gaining giving rise to a presumption against the accused, which has stood unrebutted.

(2.) The section of the Act under which the Court purported to act with regard to the presumption is Section 7 which roads thus: When any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the Court is satisfied that the Police Officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common-gaming house and the persons found therein were then present for the purpose of gaming, although, no gaming was actually seen by the Magistrate or the Police officer or by any person acting under the authority of either of them,

(3.) As regards marked coins being the instruments of gaming, we would refer to Emperor v. Pyarelal (1931) 34 Bom. L.R. 278, wherein it was observed by Beaumont C.J. that (p. 280): If...you find that a particular coin or a particular currency note has in fact been used as means of gaming, then I think that particular coin or that particular currency note does fall within the definition of instruments of gaming .