Chuni Lal and others applicants, were put on their trial before the City Magistrate of Jammu under section 4 of the Public Gambling Act. The allegations against them were that on the 27th of Jeth 1999 they were found to be gaming in a house in Pucca Danga in Jammu at about noon. This house was raided by a District Superintendent of Police and the applicants were arrested in the house along with certain articles which were alleged to be instruments of gaming. For the prosecution the District Superintendent of Police, who raided the house, and a Head Constable of the name of Puran Singh along with one Hans Raj, who was also found gaming in the house and was given pardon under the provisions of the Gambling Act, and several other witnesses were produced. The applicants were convicted and sentenced to various terms of imprisonment by the trial Court. The lower appellate Court maintained the conviction but altered the sentence with the result that the applicants were sentenced both to imprisonment and fine. This is an illegality. Perhaps this illegality was not brought to the notice of the learned Sessions Judge.

Conviction in this case, however, cannot be maintained on other grounds. It may be noted that the conviction is under section 4 of the Public Gambling Act, i. e., penalty for being found in a common-gaming house. Now a common gaming-house is defined in section i of the Public Gambling Act. That section runs as follows :-

"Common gaming-house means any house, walled enclosure, room, tent, space, vehicle, vessel or place in which cards dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, enclosure, room, tent, space, vehicle, vessel or place whether by way of charge for the instruments of gaming, or of the house, enclosure, room, tent, space, vehicle, vessel or place or otherwise howsoever." _

It will be noticed that one of the main ingredients of this section is that the instruments of gaming should be proved to have been kept in the house or used for the profit or gain of the person owning, occupying, using or keeping such house, whether by way of charge for the instruments of gaming or of the house or otherwise howsoever.

Now there is no evidence whatever in this behalf on the record of the case. Reliance is placed by the prosecution on section 6 of the Act and it is contended that the mere search of the house by the District Superintendent of Police is evidence of the fact that the house entered into was a gaming house. The presumption under section 6 can be drawn only when the house is "entered or searched under the provisions of the last preceding section", i. i.e., section 5. The provisions of this section require that the action contemplated therein may be taken upon credible information after such enquiry as may be thought necessary affording reason to believe that any house is used as a common gaming house. What seems to have happened in this case is that on the 26th of Jeth 1999 the Head Constable Puran Singh made a report to the District Superintendent of Police to the effect that gambling is carried on in the house. On receipt of that information the District Superintendent of Police raided the house on the 27th of Jeth 1999 and caught the applicants there. Assuming that the persons caught were playing cards in the house, the question is whehter they have committed the offence under section 4 of the Public Gambling Act. That section requires that they should be found gaming in a common gaming house and if the house in which they are found playing is not a gaminghouse, as contemplated under the Act, no offence under section 4 is made out. Now the information which was at the disposal of the District Superintendent of Police has been explained by Puran Singh himself who appeared as a prosecution witness in the case. His evidence is that although he has been the Head Constable deputed in this locality for the last one year and

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