( 1 ) THIS is a criminal revision application by 26 persons who were convicted by the 4th Joint Civil Judge (J. D.) and Judicial Magistrate First Class Baroda under sections 4 and 5 of the Bombay Prevention of Gambling Act and whose convictions were confirmed in appeal by the Additional Sessions Judge Baroda.

( 2 ) IN revision it is urged that the prosecution case rested on the evidence of a Panch who had turned hostile of a punter and of the Investigating Police Officer. It is contended that a Panchnama made is inadmissible in evidence and that when the Panch has turned hostile the conviction under sections 4 and 5 of the Prevention of Gambling Act would rest on the evidence of the Police Officer and the punter both of whom are interested witnesses. It is also contended that the alleged finding of the instruments of gaming cannot offer corroboration because the alleged finding is sought to be proved by the evidence of the interested witnesses. It is contended that the corroboration by the finding of the instruments of gaming must be of an independent type and that the evidence of the Police Investigating Officer and the punter regarding the actual gambling cannot be corroborated by their evidence that the instruments of the gaming were found. While contending that a Panchnama in a gambling case is not admissible in evidence it is contended that the gambling case is a cognizable case and that the Panchnama would therefore be hit by sec. 162 of the Cri. Pro. Code.

( 3 ) THE question whether an offence under sections 4 and 5 of the Prevention of Gambling Act is a cognizable offence or not has been canvassed at length. Cognizable offence is defined in section 4 (f) of Criminal Procedure Code as follows :-COGNIZABLE offence means an offence for and cognizable case means a case in which a police officer within or without the presidency-Towns may in accordance with the second schedule or under any law for the time being in force arrest without warrant.

( 4 ) THE second Schedule deals with offences against other laws other than the Indian Penal Code punishable with death or imprisonment for life or imprisonment for seven years or upwards in which police may arrest without warrant. Under sections 4 and 5 of the Prevention of gambling Act the punishment which can be imposed is only six months. Therefore the offences under sections 4 and 5 of the Gambling Act would not be cognizable offences under the second Schedule to the Code of Criminal Procedure. But it is contended that in view of section 6 of the gambling Act the gambling case is a case in which a police officer may arrest without warrant. Section 6 of the Prevention of Gambling Act provides as follows :-

( 5 ) IT shall be lawful for a Police Officer (I) in the Greater Bombay not below the rank of a Sergeant or Sub-Inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the Commissioner of Police and (ii) elsewhere not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a District Superintendent of Police or by an Assistant or Deputy Superintendent of Police specially empowered by the State Government in this behalf (a) to enter with the assistance of such persons as may be found necessary by night or by day and by force if necessary any house room or place which he has reason to suspect is used as a common gaming house (b) to search all parts of the house room or place which he shall have so entered when he shall have reason to suspect that any instruments of gaming are concealed therein. and also the persons whom he shall find therein whether such persons are then actually gaming or not (c) to take into custody and bring before a Magistrate all such persons (d) to seize all things which are reasonably suspected to have been