AVOOR RAMASWAMI IYER Vs. EMPEROR

JUDGEMENT

(1.) IN this case the petitioners have been convicted for offences under Secs.6 and 7 of Act III of 1889, namely, for opening or permitting to be used any common gaming house and for being found gaming or present for the purpose of gaming in a common gaming house. The prosecution sought to establish the offences by the evidence of Sub INspector, P.W. No. 1, who arranged to raid the house himself, he having previously deputed P.W. No. 2, a Police Constable to get into the house, and to arrange to play. Prosecution Witness No. 1 says that he never went to the house on any previous occasion. He does not know how long the 1st accused has been residing in the house and as for P. W. No. 2 he admits that the 1 accused might have known him, On the other hand, the defence evidence is that the 1 accused has been living in the house in question for 30 years with his life and family and that it is a residential house and that the reason why there was cards play at that house at the time in question was that there was a Thirakalyanam (marriage) festival and certain persons had come to his house and they had a game of cards. Of course it may be that several of the persons present in the house at the time and who admittedly were all playing for money were not the personal friends of the 1 accused. But the difficulty I feel in the case is the insufficiency of the evidence that this is a common gaming house that is to say, that it is a public place of resort of persons who want to play games of chance for money. The evidence of the prosecution seems to me to be entirely insufficient to support that. There is no doubt that it must be a place of resort and resort I take it means that people are accustomed to go there. But it does not mean, of course, that the same person need go more than once but a number of people are in the habit of resorting to the house as a place swell-known to them where they can get what they want in the way of gambling. That seems to me to be the effect of the decision quoted in IN re Chinniah 77 INd. Cas. 303 : (1924) M.W.N. 237 : 19 L.W. 219 : 46 M.L.J. 309 : 34 M.L.T. 195 : 25 Cr.L.J. 367 : 47 M. 426 : A.I.R. 1924 Mad. 729. Under these circumstances I think the prosecution has failed to prove that this house in question is a common gaming house and that, therefore, the conviction must be set aside and the fines, if paid, must be refunded. The articles seized from the petitioners will also be restored to them.