RADHEY LAL Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against a conviction under the Gambling Act. It has been argued, in the first place, that the warrant was invalid because the boundaries of the house to be searched were not specified. Learned Counsel has referred to a ruling but the case to which he refers merely says that in that particular instance the description was vague and insufficient. The learned Judge did casually remark that it would have been better to give the boundaries or the number of the house but he was not laying down any rule of law. In the present case, the house was described by the name of the owner or occupier and there is no; reason at all for suggesting that anybody was in doubt about the house which was to be searched. Then it is said that it has not been proved that certain slips which were described by the Sub-Inspector as slips for the purpose of satta gambling were for such purpose. The evidence was accepted by the Courts below and it does not appear that the applicants ever argued that these slips were being used for any other purpose. An accused person is required to explain the circumstances which appear in the evidence against him and if he cannot or will not do so, he must take the consequences. If he chooses to take up the position that he relies upon the technicality that the whole burden of proof was; upon the prosecution and refuses to say anything about the matter, he can hardly be surprised if he is convicted on the evidence produced by the prosecution if that proves circumstances from which his guilt, can be inferred.

(2.) Another argument is that there is no evidence that the house was used as a gaming house because it has not been distinctly proved that profit was made by the owner or the occupier. The law on the subject is. perfectly clear. There is a presumption under Section 6 that a house is a public gaming, house if instruments of gaming are found therein in pursuance of a search made in accordance with a warrant under Section 5. The warrant in this case was quite legal and instruments of gaming in the form of satta slips were found in the house. It was therefore to be presumed that the house was a gaming house and this includes the presumption that it was used for the profit of the owner or the occupier. It has been suggested that the search warrant is not valid because there is no evidence that the Magistrate made any inquiries. The Act does not require an inquiry. All it requires is that the Magistrate should have credible information. He may make an inquiry if lie thinks it to be necessary but he is not bound to do so.

(3.) Finally it is said that the Magistrate's order for the confiscation of the money was illegal. Reference has been made to the case in Tulla V/s. Emperor (1919) 6 A.I.R. All. 72. With the greatest deference I think that there can be no doubt that the decision in that case proceeded upon a misunderstanding. It was a case under Section 8, Gambling Act, and the learned Sessions Judge who made a reference to this Court relied on Maturra V/s. Emperor (1918) 5 A.I.R. All. 390 which was a case under Section 13 of the Act. The distinction does not appear to have been brought to the notice of the learned Judge who accepted the recommendation. Section IB of the Act justifies only confiscation of instruments of gaming. It has been held that money is not an instrument of gaming and therefore its confiscation under Section 13 of the Act is not justified. Section 8 of the Act says clearly that all money found; in a gaming house may be confiscated and there is no question whether money is an instrument of gaming or not. There is no force in this application and I reject it.