The court established that the profit or gain need not be certain, but the accused must hope to make a profit from the gaming instruments.

JUDGMENT

1. This is an appeal under the provisions of Section 417, Criminal P.C. An anonymous letter was received by the Calcutta Police as a result of which Sergeant F. Watt arranged with the telephone company to tap the line of D.E. Wilsone of Suit Nos. 19, 23 Central Avenue, Calcutta and to listen into his conversations. On 29th December 1945 Sergeant Watt listened in and heard bets being made on the races. He made a note of the bets made and submitted a report to the Deputy Commissioner. A warrant to search the premises was issued under the provisions of Section 46, Calcutta Police Act, by H.N. Sircar, Deputy Commissioner of Police and the premises were duly searched between 12-30 P.M. and 1-45 P. M. on 29th December 1945 by Inspector M.A. Rahman and Sergeant Watt in the presence of two search witnesses. The police officers found among other articles a typewriter with a piece of paper in it, bearing name of horses and amounts of money; khata books with names of horses and amounts of money written in them, slips of paper on which were written or typed the names of horses and amounts of money; a book-maker's betting car No. 762 in the name of M.R. Agarwal, race books and letters and cables from H.A. Cocks of Bombay referring to betting transactions with Wilsone and containing a promise to help Wilsone over a book-maker's licence.

2. As a result Wilsone was prosecuted for an offence punishable u/s 44, Calcutta Police Act. Three prosecution witnesses were examined, they proved that Sergeant Watt had listened into telephone communications, and they proved the search. The accused pleaded not guilty and filed a written statement in which he denied having done any business on horse racing at his residence. He admitted a keen interest in racing and explained the presence of the articles found by the Police by saying that he was a contributor of Bating Notes to the "Sporting Times" of Bombay and also that he occasionally obliged his particular friends by putting their money on horses at the Totalizators and collecting their winnings for them. No defence witnesses were examined.

3. On this material the learned Presidency Magistrate held that the slips of paper recording bets, were 'instruments of gaming' as defined in Section 3, Calcutta Police Act, but he held further, relying on the decision of a Division Bench of this Court in Dr. Ranga Lal Sen Vs. Emperor, AIR 1936 Cal 788 that it was necessary for the prosecution to establish that the profit or gain to the accused should accrue otherwise than as a result of betting, and that u/s 47, Calcutta Police Act, there was no presumption that the place was a common gaming house merely because instruments of gaming had been found therein, in the course of a search on a warrant duly issued u/s 46 of the Act. He accordingly acquitted the accused.

4. The Superintendent and Remembrancer of Legal Affairs appealed against the acquittal, on behalf of the Government of Bengal, and the appeal came up for hearing before a Division Bench. The Judges of the Division Bench expressed the opinion that Dr. Ranga Lal Sen Vs. Emperor, AIR 1936 Cal 788 had been wrongly decided and they referred two questions to the Full Bench, viz.,

(1)Where the person owning, occupying, using or keeping a house, room, tent, walled enclosure, space, vehicle or place in which instruments of gaming are kept or used for his profit or gain obtains his profit or gain or seeks to obtain them solely from the part he takes in the actual gaming, is such house, room, tent, enclosure, space, vehicle or place, a common gaming house within the meaning of the definition in Section 3, Calcutta Police Act, (4 [IV] of 1866)?

(2) Was the case in Dr. Ranga Lal Sen Vs. Emperor, AIR 1936 Cal 788 rightly decided in so far as it determined that the answer to the above question is in the negative?

5. By a subsequent order, according to the rules of this Court, the Division Bench referred the whole appeal to the Full Bench for disposal. When the appeal was