EMPEROR Vs. TRIBHOVAN MOTIRAM

JUDGEMENT

(1.) The applicant along with three others was summarily tried before the Sub-Divisional Magistrate, First Class, Broach, for offences under Secs.4 and 5 of the Bombay Prevention of Gambling Act, 1887 (Bom. Act IV of 1887), was convicted and sentenced to pay a fine of Rs. 125 or in default to undergo one month's rigorous imprisonment. He applies for revision of the order of conviction and sentence.

(2.) Mr. Patel, on behalf of the applicant, contends that the warrant under which the gaming house was entered and searched the portions arrested and the things seized was illegal. He also contends that the arrest and search of the applicant were like- wise illegal. The ground for the first contention is that the warrant was issued by the District Superintendent of Police not upon a complaint on oath as required by Art. 6 of the Act, but only credible information received, For the second contention, Mr. Patel relies upon an additional circumstance, that the arrest of the applicant was made not by the officer named in the warrant but by an officer to whom the officer named in the warrant had delegated his powers of arrest. He relies also on the further circumstance that the arrest of the applicant was not made in the gaming house but on the public road outside the house. Mr. Patel further contends that the currency notes and cash found on the person of the applicant and the books and vouchers found in the house are not instruments of gaming within the meaning of that term in the Act.

(3.) This having been a summary trial the notes of the learned Magistrate are necessarily meagre. It appears, however, from the complaint filed by the Sub-Inspector of Police, Manilal Joitaram, on behalf of the Crown, that on obtaining information to the effect that Kanayalal Nathalal, the original accused No. 1, had kept a common gaming house to which he and others resorted for gambling, the Sub-Inspector of Police obtained a warrant from the District Superintendent of Police authorising him to enter the house, arrest persons found there, and seize all instruments of gaming and articles suspected to have been used or intended to be used for the purpose of gaming. The Sub-Inspector proceeded with the warrant to the house of the accused No. 1 accompanied by certain police officers and the panch. When he was at a distance of ten paces from the house of accused No. 1, he saw the applicant and two others, being the original accused Nos. 2, 3, and 4, coming out of the house. The Sub-Inspector with his party followed the applicant and accused Nos. 3 and 4 and arrested them at some distance from the house. He then asked Police Sub-Inspector Baburao, who was with him, to take search of their persons and himself proceeded with some of the Panch to the house of accused No. 1 which he entered and took search of in the presence of the Panch. He arrested accused No. 1 and seized certain articles produced before the Court as being instruments of gaming found in the house. Baburao later on rejoined him and handed over to him the articles he had found on the persons of the applicant and accused Nos. 3 and 4. The complaint further stated that the applicant and accused Nos. 3 and 4 were found in the gaming house gathered there for the purpose of gambling.