JUDGMENT

FAZAL ALI, J.:— This appeal by certificate granted by the Bombay High Court raises an interesting question of law as to the ambit, scope and interpretation of Section 6 of the Bombay Prevention of Gambling Act, 1887 (Act No. IV of 1887) (hereinafter referred to as the Gambling Act) read with the Bombay Police Act, 1951 (hereinafter referred to as the Police Act).

2. The appellant along with others was convicted under Section 4 of the Gambling Act and sentenced to rigorous imprisonment for two months and a fine of Rs. 400/- or in default to suffer rigorous imprisonment for one month. He was also convicted under Section 5 of the Gambling act and sentenced to 7 days rigorous imprisonment and a fine of Rs. 50/-. 16 accused besides the appellant were convicted but the appellant alone filed a revision before the High Court and an appeal to this Court by obtaining a certificate from the High Court.

3. The facts of the case are not in dispute and counsel for the appellant has not raised any question relating to the merits of the case. In fact, all the three courts have concurrently found that the offence against the appellant has been established beyond any doubt and in view of the concurrent finding of facts by the courts below there is no question of arguing the case on merits.

4. One of the important points of law which was urged before the High Court as also before this Court was that the search warrant issued by the Assistant Commissioner which formed the basis of the conviction of the appellant was legally invalid, and, therefore, the conviction was not sustainable in law. It was also argued before the High Court that the search warrant did not contain a full and complete description of the hut where the game was being played but the High Court has rightly repelled this contention on the ground that the search warrant contained full description of the place and this finding was not assailed before us also.

5. Thus, the entire case turns upon the validity of the search warrant issued by the Assistant Commissioner. In this connection, it was submitted before us that under Section 6 of the Gambling Act it was lawful for the Commissioner of Police to issue a search warrant but in the instant case admittedly the search warrant was not issued by the Commissioner of Police but by the Assistant Commissioner. It was contended that as the Commissioner of Police has not been defined in the Gambling Act so as to include an Assistant commissioner any warrant issued by the Assistant Commissioners was legally invalid and could not be acted upon. The High Court appears to have met this argument on the ground that under the provisions of the Police Act the term commissioner of Police includes an Assistant Commissioner, and, therefore, the provisions of Section 6 of the Gambling Act were fully complied with inasmuch as the words Commissioner of Police would include an Assistant Commissioner also.

6. Learned counsel for the appellant however submitted that the view taken by the High Court is legally erroneous because the definition of the term Commissioner of Police in the Police Act could not be imported into Section 6 of the Gambling Act. First, the term Commissioner of Police was not defined in the Gambling act and, secondly the Gambling Act was passed long before the Police Act came into force. In our opinion, the argument put forward by learned counsel for the appellant merits serious consideration. It is no doubt true that the Gambling act does not at all contain any definition of the words Commissioner of Police. In this connection, the relevant part of Sec. 6 of the Gambling Act runs thus:-

It shall be lawful for the Commissioner of Police in the City of Bombay, and elsewhere for any Magistrate of the First class or nay District Superintendent of Police or for any Assistant Superintendent empowered by Government in this behalf, upon any complaint made before him on oath, that there is reason to suspect any house, room or place to be us