EMPEROR Vs. PYARELAL

JUDGEMENT

(1.) MACNAIR , Offg. J.C. 1. The learned Sessions Judge is of opinion that the order directing confiscation of Rs. 95, part of the money found on the person of Pyarelal, is illegal as this money cannot reasonably be suspected to have been used or intended to be used for the purpose of gaming. He refers to the judgment of Broadway, J., in Misri Lal v. Emperor A.I.R. 1927 Lah. 338, but his opinion is not in consonance with the view taken in that case, namely, that no part of the money found on the person of a man arrested in a gaming house can be seized or forfeited, as such money should not be considered to have been found in the gaming house. The view of Broadway, J., is in accord with the view taken in Emperor v. Wailli Mussaji [1902] 26 Bom. 641 and Emperor v. Sadashiv Bab Habbu [1920] 44 Bom. 686.

(2.) SECTION 5, Gambling Act specifies the conditions under which the suspected premises may be entered: it then authorises the seizure of instruments of gaming, moneys and securities for money, and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein. It next authorises a search of the premises and the persons of those arrested for the purpose of finding instruments of gaming and the seizure of instruments of gaming found upon such search. The section then appears to authorise the seizure of money found without a special search, but not the seizure of money found in the special search of all parts of premises and of the persons of those arrested or instruments of gaming. Section 8 authorizes the Magistrate to order all instruments of gaming found in a gaming house to be destroyed. Here the words "found therein", i.e., in the gaming house, must surely mean found in the house or on the persons of those arrested: for it is clear that all instruments of gaming found ought to be destroyed. Section 8 next authorises the forfeiture of all moneys seized in the gaming house, though the Magistrate is permitted to order any part thereof to be returned to the owner. I do not consider it necessary to decide whether money found on the person of a man arrested should be considered to have been found in the gaming house. It appears to me that Section 5 does not authorize the seizure of money unless this money can be found without a special search. In my opinion Section 5, Gambling Act, authorises the seizure of money and securities lying about the premises but of no other money. I do not think the reason for the distinction suggested by Broadway, J., is the true one. It would frequently be possible to hold that money found on the person of a gambler was likely to have been intended to be used for gambling: part of such money may be marked coin. The real reason in my opinion is that a person convicted for gambling is liable to fine and power to confiscate money which clearly belongs to him is unnecessary: money which is in evidence at the time of search is forfeited as it would be troublesome to decide its ownership.

(3.) THE learned Sessions Judge considers that as no notice of the charge of an offence under Section 4, Gambling Act, was given, Pyarelal should not have been convicted of offences under Section 3 and Section 4 and have been punished with fine for each offence. It is true that the offence complained of was an offence under Section 3, Gambling Act, but the facts alleged were that Pyarelal and Kunjilal wagered on the market price of cotton with witnesses and there was reason to beHeve that they wagered with other persons. The keeper of the satta shop ordinarily wagers with his customers much in the same way as a book-maker wagers with persons who bet on horse races. The facts alleged then were that Pyarelal was guilty of offences both under Sections 3 and 4, Gambling Act. It was clearly stated that Pyarelal had settled the rate at which the bettors would be paid if they won. In my opinion the convictions under Sections 3 and 4 were not illegal. The total punishment inflicted is not excessive.