Owner or occupier not found a the time of raid in the premises.

This is a petition to revise the order of conviction and sentence passed against the petitioner by the First Class Magistrate, Srirangapatna in C.C No. 2411 of 1961 and confirmed by the additional Sessions Judge, Mysore, in Criminal Appeal No. 7 of 1962 on the ground that the lower Courts had fallen into an error of law in convicting the accused under section 63(1)(b) of the Mysore Police Act merely because certain slips and copies of Newspapers alleged to have been used as instruments of gambling were found in the building occupied by him for his hotel.

The facts material to the petition may be briefly stated as follows: The appellant and seven others were charge-sheeted under section 63(2) of the Mysore Police Act in C.C. No. 2387 of 1961 on the file of the Special First Class Magistrate, Srirangapatna and in addition the appellant was also charge-sheeted separately for an offence under section 63(1)(b) of the Act. The appellant was the 8th accused in the first charge-sheet. The first seven accused pleaded guilty to the charge of gambling and were convicted. Thereafter, the two cases were clubbed together and the petitioner was tried for the offence of gambling as also for knowingly or wilfully permitting the other accused for using the building for the purpose of gaming. He was acquitted of the offence punishable under section 63(2) of the Act but was convicted for the offence under section 63(1)(b) of the Act and was sentenced to suffer simple imprisonment for one month and to pay a fine of Rs. 200. In the Court of appeal, it was urged on behalf of the applicant that in the absence of any evidence to show that the applicant had permitted the other accused to use the building as a common gaming house for gain or profit and in the absence of evidence hat the building had been knowingly or wilfully permitted to be so used, the conviction of the petitioner for the offence punishable under section 63(1)(b) of the Act was illegal. The learned Sessions Judge was inclined to the view that ‘it is incumbent on the prosecution to establish by direct evidence that the owner was deriving benefit or profit by running this common gaming house.‘But he accepted the dictum laid down by the Chief Justice of the former Mysore High Court in C. Gangappa v. State of Mysore1 to the effect that a conviction for the offence of keeping a common gaming house is not bad merely because of the absence of evidence of monetary benefit to the accused contemplated under section 4(i)(3) of the Police Act as Explanation 1 to section 63 provides for a presumption of gain when instruments of gaming are found, and confirmed the order of conviction and sentence.

It is not disputed that the petitioner is the lessee of the building and 1 as been running a Milk Bar, which had been closed at the material date under an order of the local authority owing to the prevalance of an epidemic. It is also not disputed that when the building was raided on 7th September, 1961, by the Police armed with a warrant under section 38 of the Mysore Police Act, the seven accused who were convicted were found engaged in ‘satta gambling’ and that certain instruments of gaming including some cash were recovered during the raid. In 1 he panchanama that was drawn up immediately after the search, it was stated that the accused who was standing at the door, ran away at the sight of the Police. The plea of the accused was that he was not at the Hotel at the time of the raid as he was bedridden owing to illness. No finding about his presence was recorded by the Magistrate, though he rejected his plea of illness. The learned Sessions Judge has not also recorded that the accused was present. On going through the evidence, I am constrained to observe that there are material contradictions between the evidence of the Circle Inspector of Police (P.W-1) and that of the Sub-Inspector of Police (P.W-5) on this point. I have no doubt in holding that the accused was not present in the premises as alle