The main legal point established in the judgment is the requirement for special circumstances to justify the inference that a place is a common gaming house and the importance of presenting the reasons that led to the issuance of a search warrant before treating the finding of cards or instruments of gaming as sufficient evidence.

Newsam, J.

1. This petition raises an interesting question as to the scope and meaning of certain sections in the Madras Gaming Act (III of 1930). A "common gaming house" is defined as a place where cards or other instruments of gaming are kept for the profit of the person who owns or occupies the place. In other words it is a place open to all comers for gambling purposes and run by some person for profits either by hiring the room or by hiring the cards, etc. The persons punishable under the Act are the keeper or owner of such aplace and persons who frequent such a place for gaming. Gaming in a private house or in a club is not an offence punishable under this Act. Section 9 of the Act contains a pre sumption that anyone found in a common gaming house during gaming was there for the purpose of gaming. Section 7 states that a man may be convicted of keeping a "common gaminghouse" even though it be not proved that anyone played for money in that place. These two sections clearly show that the legislature was oppressed by the difficulty of obtaining proof in such cases. The greater part of this short Act is in fact devoted to overcoming that initial difficulty by creating special rules of evidence. But it is Section 6 which presents the greatest difficulty. That section read with Section 5 is to the effect that any cards or instruments of gaming found in any place searched under a search warrant issued by a salaried Magistrate or Deputy Superintendent of Police who has reason to believe that the place is used as a common gaming house shall be evidence that such place is used as a common gaming house and that the persons found therein were there for the purpose of gaming even though no gaming was seen by the search party. The drafting of these sections is certainly defective. It is quite clear, pace the phraseology of Section 6, that cards or instruments of gaming cannot of themselves be evidence of anything. The obvious meaning is that the finding of cards or of instruments of gaming in such circumstances shall be deemed to be evidence; shall be a ground for the inference that the place is a common gaming house. Now, in most private houses cards or other instruments of gaming are to be found, and therefore there must be some special circumstances to justify the inference that the place is a common gaming house. It is clear that the mere finding of cards or of other instruments of gaming is not sufficient to justify such an inference. The one safeguard provided in the Act for people who have cards in their private houses is that before their houses are searched "a salaried Magistrate " or a "Senior Policeman" must have reason to believe that their house is a common gaming house. If he thinks he has reason to believe that and issues a search warrant and cards are found, that is, evidence that the house is a common gaming house. But is it sufficient evidence by itself? Obviously not. The reasons which prevailed with the Magistrate or with the "Senior Policeman" to issue the warrant must normally be put before the Court and Kesanna must be tested before a man can be convicted of keeping for a common gaming house on such flimsy evidence. Otherwise, the conviction would be based partly on purely artificial evidence and partly on secret information, which cannot possibly have been the intention of the legislature. Nor does the language of Sections 5 and 6 support such a conclusion. There is a world of difference between saying that a certain fact is evidence of something and saying that it is proof of something. In my judgment each case must be decided on its merits and regard must be had to all the circumstances and the discretion of the Magistrate to accept a case as proved or to reject it as not proved is wholly unfettered and unaffected by Section 6. All that I am concerned to point out is that if the reasons which induced a Magistrate or a Senior Police Officer to issue a search warrant are not put before the Court, the mere