This Revision is preferred by accused 1 in C.C. No. 12628 of 1957, against his conviction and sentence by the learned Fifth Presidency Magistrate, Egmore.

The Revision Petitioner along with sixteen others was put up for trial of offences under sections 45 and 46 of the Madras City Police Act. The Revision Petitioner was charged with conducting a common gaming house at No. 69, Thulasingaperumal Koil Street. Accused 1 to 13 were said to have participated in the card game of chance known as “mangatha”, and accused 14 to 17, of whom accused 17 is a respectable doctor of the locality by name Dr. G. Narasimhachariar, were said to have been found in the above premises watching the game of mangatha between 2 and 3 p.m. on 3rd November, 1957. It is stated that when the Police raided the place they found a cash of Rs. 257-4-0 and other gaming materials and they were seized.

The case for the accused was as follows: Accused 1 stated that he was not running any common gaming house and that mangatha was not being played. Accused 17 stated that he had gone to No. 69, T. P. Koil Street, to see the chief tenant Doraisami Ayyangar who was suffering from filarial trouble, that after giving him an injection in the downstairs portion where he was living, he went upstairs to make some inquiries of accused 7, that he then saw some persons playing at a card game and they told him that there was a music performance at the Hindu High School by Ariyakudi Ramanuja Ayyangar and that they were whiling away their time. Some of the other accused stated that they were playing “rummy” which is a game of skill and that they were playing for stakes in order to introduce seriousness in that game. The rest stated that they were watching the game. It is stated that the moneys were recovered mostly from the pockets of the accused persons.

The learned Magistrate found accused 1 guilty under section 45 of the Madras City Police Act and accused 1 to 13 under section 46 of the said Act. He sentenced accused 1 under section 45 of the Act to pay a fine of Rs. 40 and in respect of the offence under section 46 of the Act, accused 1 to 13 were released after due admonition under section 3 of the Madras Probation of Offenders Act. He acquitted accused 14 to 17. He ordered the confiscation of the cash seized except Rs. 40 (one rupee notes) which had been initialled by the Sub-Inspector P.W. 1 and given by him to the decoy-witness P.W. 2.

In this case we have to find out whether accused 1 was running a common gaming house; secondly, whether the other accused were either playing mangatha, a card game of chance, or watching the same; and thirdly, whether the order of confiscation is correct.

Gaming is not an offence per se. It is an offence only when it is carried on in a public place or in a common gaming house as defined in the Public Gambling Act or its local variants. (For a comprehensive study of the Public Gambling Act see A.I.R. Manual, Civil and Criminal Volume 7, Act III of 1867, p. 6938, and following and of which very useful publication a new edition is long overdue.) Is gambling by itself a public nuisance although it may be punishable under the Police Act or other provision of law? Section 8 of the Madras Gaming Act penalises gambling in a common gaming house, (gaming and gambling have substantially the same meaning) while section 12 prescribes the punishment for gambling in a public place. The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of section 8 nor of section 12, is not an offence under the Act. Similarly, where no commission is charged or gaming is carried on for pleasure and not for gain or when it is carried on, on a religious festival, e.g., Diwali day and even where charges are made but not as profit or gain but for the payment of servants who look after the comforts of those who happen to visit the bouse or for remunerating those who minister to the comforts of the persons assembled or f