Judgment

THAKKAR, J.:- Whether or not it was a common gaming house as defined by Section 3(ii) of the Act is the question. Not is the answer.

2. The appellants were convicted for an offence under Section 5 of the Bombay Prevention of Gambling Act, 1887 (hereinafter called the Act) as it stood in 1972 for being found in a common gaming house where they had assembled for the purpose of gaming. Appellant No. 6 was also convicted for an offence under Section 4 of the Act, for using a room as a common gaming house. The Sessions Court exercising appellate jurisdiction came to the conclusion that the gaming was taking place in an office of the (Agricultural) Soil Conservation Department and that the room in which the gaming was taking place was not a common gaming house within the meaning of Section 3(ii)*1 of the Act. On reaching the conclusion that it was not a common gaming house, the Sessions Court came to the conclusion that the offence committed by Appellant No. 6 would not fall under Section 4 of the Act.

*1. Section 3 (ii) : "In this Act common gaming house means : 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 persons owning, occupying, using or keeping such house, room or place by way of charge for the use of such house, room or place or instruments or otherwise howsoever."

The Sessions Court, however, recorded a finding of guilt against the appellants including Appellant No. 6 for an offence under Section 5 of the Act seeking support from Section 7*2 of the Act which provides for presumptive proof of keeping or gaming in a common gaming house.

*2. Section 7 : When any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the Court is satisfied that the Police Officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority or either of them.

3. Even though on an appreciation of evidence adduced by the prosecution the Sessions Court came to the conclusion that the prosecution had failed to establish that Appellant No. 6 was deriving any profit or gain by way of charges for the use of the room in question and that accordingly it was not a common gaming house, the Court strangely enough held that it was a common gaming house within the meaning of Section 3(ii) of the Act by reason of the presumption under Section 7 of the Act. What was held to be not a common gaming house, having regard to the fact that evidence adduced by the prosecution was considered unacceptable could not have been held to be a common gaming house by recourse to the presumption under Section 7. The presumption is a rebuttable presumption which was not required to be rebutted by the defence inasmuch as the prosecution evidence was discredited and rejected and the presumption stood rebutted on that account. What is not a common gaming house in fact in the light of evidence cannot become a common gaming house by reason of presumption under section 7. The reason is neither far to seek nor obscure. What the prosecution is required to establish by recourse to the presumption is that the room is a common on gaming house as defined in the dictionary (definition?) of Section 3(ii) that is to say that the occupier is collecting charges for the use of the room. When evidence is adduced and the prosecution fails to establish that such charges are in fact collected, how can the Court hold in the face of its own finding, th