EMPEROR Vs. NANALAL DWARKADAS TOLAT

JUDGEMENT

(1.) This is an application for revision of a conviction and sentence of the applicants by the First Class Sub-Divisional Magistrate, Broach, for an offence in the case of applicants Nos. 1, 2 and 3 under Section 4 of the Bombay Prevention of Gambling Act and in the case of applicants Nos. 4 and 5 for an offence under Section 5 of the same Act. The District Magistrate, Broach, has made a reference to this Court recommending that the sentences of applicants Nos. 1 and 2 may be enhanced. The application and the reference have been heard together. The applicants were found in a house when the complainant the Home Inspector of Police entered it under a warrant issued to him by the District Superintendent of Police under the provisions of Section 6 of the Bombay Prevention of Gambling Act. On making a search of the house the Inspector found certain papers and account books which were of the nature of instruments of gambling. The accused were arrested by the Inspector under the warrant and the instruments of gambling were attached by him.

(2.) It is contended on behalf of the applicants that the warrant under which the Inspector entered the house, arrested the applicants and attached the papers and account books was not according to law, and therefore no presumption would arise under Section 7 of the Act that the place was a common gaming house. The evidence shows that the Home Inspector on receiving certain information with regard to the doings that were going on in this house, took the informer with him to the District Superintendent of Police, and himself made a complaint on oath before the District Superintendent of Police setting out that there was reason for him to suspect that the house in question was being used as a common gaming house. The District Superintendent of Police after investigating the matter issued the warrant. It has been urged by Mr. Thakor on behalf of the applicants that Section 6 of the Bombay Prevention of Gambling Act does not contemplate the issuing of a warrant upon a complaint made by a police-officer. The complaint on oath he contends should have been by the informer and not by the police-officer. The language of Section 6 of the Gambling Act, in our opinion, is wide enough to include a complaint on oath made by a police-officer. The complaint can be made before any Magistrate of the First Class or any District Superintendent of Police or any Assistant or Deputy Superintendent empowered by Government in that behalf and the words are "upon any complaint made before him on oath." Had it been the intention of the Legislature to exclude a police-officer from the class, of those who are competent to make a complaint on oath in this connection we would expect to find words to that effect in this section. In our opinion the warrant was properly issued, Mr. Thakor has also contended that it was illegal to have issued the warrant to the police-officer who had sworn on the complaint before the District Superintendent of Police. We do not find any words in Section 8 which would restrict the issue of the warrant by the District Superintendent of Police in this manner. The warrant, in our opinion, was properly issued.

(3.) The warrant having been properly issued and instruments of gaining found in the house entered under the warrant a presumption arises under Section 7 of the Bombay Prevention of Gambling Act that the house was being used as a common gaming house and that the persons found there were there for the purpose of gaming. As applicants Nos. 4 and 5 were among those found in the .house when the police-officer entered it under the warrant they would be properly convicted under Section 5. The Magistrate has passed a sentence of Rs. 50 fine on each of these applicants and has imposed a sentence of two months rigorous imprisonment on each in default of the payment of fine. The sentence of two months rigorous imprisonment in default contravenes the provisions of Section 61 of the Indian Penal Code by which the period in default must not exceed one- fourth of the maximum substantive sentence of imprisonment that can be imposed. The maximum substantive imprisonment which can be imposed on conviction for an offence under Section 5 is one month's imprisonment only. The sentence in the case of applicants Nos, 4 and 5 should be altered by changing two months rigorous imprisonment in default to one week's rigorous imprisonment in default.