The discovery of instruments of gaming under Section 46 of the Calcutta Police Act creates a presumption of a common gaming house, and the burden is on the accused to rebut this presumption.

JUDGMENT

B.K. Mukherjea, J. - The appellant in this case is one Abdul Latif who has been convicted by the Chief Presidency Magistrate, Calcutta, u/s 44, Calcutta Police Act, (Act 4 of 1866), and sentenced to pay a fine of Rs. 250 only. In default he has to suffer rigorous imprisonment for a period of one month. There is not much dispute about the facts of this case which lie within a short compass. On 5th September 1936 Sub-Inspector Jennings of the Calcutta police, who is the first witness for the prosecution, searched a shop-room in premises no. 7 Ripon's Lane, Calcutta, which is admittedly in occupation of the accused and the search was made under a warrant issued u/s 46, Calcutta Police Act, signed by the Deputy Commissioner of Police, Southern Division. The Sub-Inspector found the accused and several other persons at the shop-room and on search of the premises certain race-books, race handicap sheets, and other papers were seized by the police. The learned Magistrate found most of the papers to be innocuous, but he held that certain slips of papers forming Exs. 3 and 6, were betting slips, which did come within the definition of "instruments of gaming" in the Calcutta Police Act. The Chief Presidency Magistrate was of opinion that as the search was made in conformity with the provision of Section 46, Calcutta Police Act, and the instruments of gaming were found in the shop-room, a presumption would arise u/s 47 of the Act, that the room or place was used as a common gaming house, which the accused would have to rebut. As there was no reliable evidence on the side of the accused to rebut this presumption he was convicted u/s 44, Calcutta Police Act.

2. Mr. Mookerjee, who appears in support of this appeal, has assailed the propriety of the decision of the Chief Presidency Magistrate substantially on three grounds. He has argued in the first place, that the learned Magistrate misappreciated the law on the point and erred in law in holding that there was any presumption in favour of the prosecution u/s 47, Calcutta Police Act, from the fact of the search being conducted in accordance with the provisions of Section 46, which would shift the burden on to the accused to establish his innocence. He maintains that the presence of the instruments of gaming might at best be taken to be a piece of evidence to show that the place was kept or used as a common gaming house, but that would not exonerate the prosecution from showing that the other elements necessary to constitute a common gaming house, as defined in Section 3 of the Act, were present in this case. The second argument is that the slips of paper, which have been pronounced to be betting slips by the trying Magistrate are not instruments of gaming within the meaning of the Act. Lastly it is con-tended, that even if these papers be regarded as instruments of gaming a conviction on the strength of these papers alone is not proper, particularly when there is no evidence to show that any profit was made or expected by the accused by reason of his owning, occupying or keeping the place.

3. Now so far as the first point is concerned, it cannot be disputed that to sustain the conviction of the appellant u/s 44, Police Act, it must be proved that he has opened, kept or used a room or house, which he owns or occupies, as a common gaming house. To constitute a common gaming house as defined in Section 3, not only there must be instruments of gaming used or kept in the place, but such instruments must be kept or used for the purpose of gain or profit of the person, owning, occupying or using such room. If the slips found in the room be held to be betting slips, the first requirement is certainly complied with, but as regards the second, the prosecution has not adduced any evidence, but has relied on solely what the trying Magistrate calls the presumption u/s 47, Police Act. It is necessary to consider therefore, as to how far Section 47. Calcutta Police Act, absolves the prosecution from