Judgment

KOSHAL, J.:- By this judgment we shall dispose of Criminal Appeals Nos. 126 and 127 of 1972 both of which have been instituted on certificates granted under Article 134 (1) (c) of the Constitution of India by the High Court of Gujarat against the judgment dated April 21, 1972 of a Division Bench of that Court upholding the conviction of each of the appellants under Section 4 or Section 5 of the Bombay Prevention of Gambling Act 1887 (hereinafter referred to as the Bombay Act) and a sentence of imprisonment coupled with fine.

2. Appeal No. 126 of 1972 has been filed by eight persons. Appellant No. 1 has been convicted of an offence under Section 4 of the Bombay Act for keeping a common gaming house, while his seven co-appellants were found guilty of an offence under Section 5 of that Act. In Criminal Appeal No. 127 of 1972, appellant No. 1 is the same person who figures as appellant No. 1 in the former appeal and the conviction recorded against him is one for an offence under Section 4 or, in the alternative, under Section 5 of the Bombay Act. His two co-appellants have earned a conviction under the section last mentioned.

3. The two appeals have arisen from Criminal Revisions Nos. 490 and 491 of 1971 both of which were dismissed by the High Court through the impugned judgment. In Appeal No. 126 of 1972, appellant No. 1 was said to be keeping or using house No. 1408 situate in Ward No. 1 of Himatnagar town as a common gaming house and appellants Nos. 2 and 3 were said to have been employed by him for carrying on in that house the business of betting on Worli Matka figures. On a search by the police, appellants Nos. 2 to 8 were found present in the house from which numerous betting slips and boards indicating the opening and closing figures of Worli Matka betting were recovered. A personal search of appellants Nos. 2 and 3 yielded counterfoils of the said slips.

The allegations against the three appellants in criminal appeal No. 127 of 1972 were that all of them were found present for the purpose of gaming in the said house which was, as already stated, being run by appellant No. 1 as a common gaming house.

4. The only contention raised on behalf of the appellants before the High Court was that the said house had not been proved to be a common gaming house within the meaning of the definition of that expression occurring is Section 3 of the Bombay Act. That definition runs thus :

"In this Act, common gaming house means -

(i) in the case of gaming:-

(a) on the market price of cotton, opium or other commodity or on the digits of the number used is stating such price, or

(b) on the amount of variation in the market price of any such commodity of on the digits of the number used in stating the amount of such variation, or

(c) on the market price of any stock or share or on the digits of the number used in stating such price, or

(d) on the occurrence or non-occurrence of rain or other natural event, or

(e) on the quantity of rainfall or on the digits of the number used in stating such quantity, or

(f) on the pictures, digits or figures of one or more playing cards or other documents or objects bearing numbers, or on the total of such digits or figures, or on the basis of the occurrence or non-occurrence of any uncertain future event, or on the result of any draw, or on the basis of the sequence or any permutation or combination of such pictures, digits, figures, numbers, events or draws,

any house, room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming:

(ii) in the case of any other form of gaming, any house, room or place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room or place by way of charge for the use of such house, room or place or instrument or otherwise howsoever."

Clause (i) of the definition is obviously inapplicable to the cases in hand and the plea of the