This is a petition to revise the Judgment of the Additional Sessions Judge of Chittoor, confirming the conviction of the petitioner for an offence under section 12 of the Madras Gaming Act (III of 1930).

The facts of the case are as follows:

On 27th February, 1956 at about 8-30 p.m. while the petitioner was travelling in a bus going to Tirupathi, the Sub-Inspector of Police (P.W.1), acting on information, stopped the bus at a rice mill near Renigunta and searched the person of the petitioner. In his pocket was found a note-book containing entries about cotton-market betting and in a cloth bag which he had with him, were found coins and notes of the value of Rs.107-10-0 with 32 numbers of cotton-market betting carbon counter-slips. All these were seized by P.W.1 under a ‘mahazar’. On these facts, the petitioner was prosecuted for an offence under section 12 of the Madras Gaming Act, and the Second Class Bench Magistrate, Tirupathi, convicted the petitioner, sentenced him to pay a fine of Rs.10 and ordered the confiscation of the money seized from him. On appeal, the Additional Sessions Judge, confirmed the conviction and sentence as also the order of confiscation; hence this revision petition.

It is urged on behalf of the petitioner that the facts proved in this case do not constitute an offence under section 12 of the Gaming Act. Section 12 is in the following terms:

“Whoever is found gaming with cards, dies, counters, money or other instruments of gaming in any public street, place or thoroughfare or publicly fighting cocks, shall be liable on conviction to fine not exceeding fifty rupees or to imprisonment not exceeding one month; and such instruments of gaming and money shall be forfeited”.

Thus, what the section aims at is gaming in a public street, place or thoroughfare. ‘Gaming’ is defined in section 3 thus:

“‘Gaming’ does not include a lottery but includes wagering or betting”.

“Explanation.-For the purposes of this definition, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes in money or otherwise, in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt ordistribution”.

So that ‘gaming’ includes not only actual wagering or betting but also antecedent, ancillary and accessory acts calculated to aid or facilitate wagering or betting.

But under the Gaming Act, gaming as such is not an offence but only gaming in a common gaming-house or in a public place is made punishable, the one under section 9 and the other under section 12 of the Act. Therefore, unless it is shown that the ancillary or accessory acts contemplated by the Explanation are themselves committed in a public place, the person concerned cannot be said to be “found gaming in a public place”, so as to render himself liable under section 12.

In the present case, it was not suggested by the prosecution that the petitioner was collecting or soliciting bets in the bus in which he was travelling; all that was proved by the prosecution was that the petitioner had in his possession betting slips, a note-book with certain entries and money. The lower appellate Court was of the view that

“though the accused was not collecting or soliciting bets, he was doing an act intended to aid or facilitate wagering or betting by his possession of the incriminating articles; and when section 12 of the Gaming Act is read along with the definition and the Explanation abovementioned, it is not necessary that a person should be actually collecting or soliciting bets for being punishable”.

I am of opinion that the lower appellate Court was in error in equating a definition section with a penal provision.

I am fortified in my view by a Full Bench ruling of the Bombay High Court in Emperor v. Somabhai Govindbhai1. In that case, section 12 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), which is similar to sect