Validity of warrants under Section 5 and applicability of presumption under Section 6 for convictions under the Bengal Public Gambling Act

ORDER

Edgley, J. - These two rules arise with reference to the conviction of the petitioners under Sections 3 and 4, Bengal Public Gambling Act (2 of 1867). As the points which require consideration are similar in the two cases they have been heard together. In both cases it was alleged by the prosecution that certain premises at Howrah had been searched in pursuance of warrants issued u/s 5 of the Act, and that some papers had been found in these premises which, according to the prosecution case, were "instruments of gaming" used in connexion with cotton gambling. In Criminal Revision Case No. 296 of 1940 the petitioner was the occupier of the premises on which these instruments of gaming had been found, whereas in the other case (Criminal Revision Case No. 438 of 1940) not only the occupier but certain persons have been convicted who were actually found on the premises. In both these cases the Courts below appear to have based their judgments to a large extent upon the presumption which arises u/s 6 of the Act, to the effect that, when any instruments of gaming are found in a house, which has been entered or searched under the provisions of Section 5 it shall be evidence, until the contrary is made to appear that such house .... is used as a common gaming house.

2. Both the warrants in these cases were issued on 8th October 1939. They purport to be warrants u/s 5, Gambling Act, but they state that the Magistrate who issued them had reason to believe that the premises, in respect of which these warrants were issued, were used as places for the purpose of cotton gambling. It is argued with considerable force that, in view of the terms of Section 5 of the Act, it is not legal to issue a warrant under this section, if the Magistrate concerned merely has reason to believe that a house is used for cotton gambling, or indeed for any other kind of gambling as such. It must be remembered that under the Bengal Public Gambling Act, gambling, in itself, is not illegal, but the Act only makes punishable certain specific kinds of gambling, for instance, gambling in a common gaming-house. The definition of the expression "to gamble" which is given in the Oxford English Dictionary is as follows:

To play games of chance for money, esp. for unduly high stakes; to stake money (esp. to an extravagant amount) on some fortuitous event.

3. There is a note in the following terms:

As the word is (at least in serious use) essentially a term of reproach, it would not ordinarily be applied to the action of playing for stakes of trifling amount, except by those who condemn playing for money altogether.

4. In the cases with which we are now concerned, the offences in connection with which the petitioners have been convicted relate to alleged gambling in common gaming-houses and in order to prove that a particular house is a common gaming house, the prosecution must establish that in the house in question instruments of gaming are kept, or used for the profit or gain of the person owning, occupying, using or keeping such house. Similarly, inasmuch as it is a somewhat serious matter for a Magistrate to search or authorise a search of a private house in connection with an allegation to the effect that gambling is taking place therein, the Legislature has provided by Section 5 that the authority concerned must upon credible information, and after such inquiry as he may think necessary, have reason to believe that such house is used as a common gaminghouse, or, in other words, as a house which is used by its owner or occupier for the purpose of making profit out of gambling transactions, which take place therein, and it is only if the house has been entered, or searched under a warrant, properly and validly issued, under the provisions of Section 5 of the Act, that the presumption which is raised u/s 6 can arise. In the present cases, I am of opinion that the warrants issued u/s 5, Bengal Public Gambling Act, were illegal, as they do not indicate that the Magistr