1. This is a revision under section 397 read with section 401 of the Criminal Procedure Code.

2. All the accused persons except the accused No.1 were tried under section 4 of the Public Gambling Act, 1867 (as amended in M.P.) (hereinafter called as 'the Act'). Accused Ram Bharti was tried under· section 3 of the Act. In Criminal Case No. 55/96 the Judicial Magistrate First Class found all the accused guilty of the offences charged and convicted them. They were sentenced as under:

Conviction Sentence

Accused-applicant No.1 convicted Fine of Rs. 200/-

under section 3 of the Act

Accused-applicants No.2 to 11 convicted Fine of Rs. 100/-

under section 4 of the Act

3. In default of payment of fine, accused No.1 was ordered to undego one month's simple imprisonment and accused No.2 to 11 were ordered to undergo 8 days Simple Imprisonment. In appeal by the accused in Sessions Court, the Sesions Judge in Criminal Appeal No. 83/1996 dismissed the same and maintained the judgment and order of the trial Court.

4. Now the accused persons are before this Court.

5. In the present case the Investigating Officer who raided the house of accused No.1 has not been examined to show how raid was being conducted. Pooranlal (PW 2) is SHO of Navegaon who says that he also accompanied with the said party but does not know what happened on the spot. In cross-examination he says that he did not visit the house of accused No.1. Thus, this witness does not help the prosecution. The another raid party witness Ommedsingh (PW 1) is not declared hostile but he does not support the prosecution and he says that he also did not visit on the spot. Since Police asked to sign papers he signed the same. He further says that nothing was seized before him and did not see the accused persons also. PW 3 Kalpana Marskole. Sub Inspector says that she was also a member of said party and went to the house of the accused No. 1 where all the accused were present and were gambling. Some money was lying on the gambling den and they were playing cards also and with the help of playing cards they were gambling. All the material lying there and the money was seized and came back to police station taking the accused in custody. According to this witness no money was recovered and seized from the pockets of the accused. On perusal of Seizure Memo (Exhibit P-l) it will reveal that from den only Rs. 10,600/- were recovered and Rs. 6,180/were recovered from the person of the accused. This is the total evidence. According to PW 3 Kalpana and Pooranlal (PW 2), accused Ram Bharti does not have any house in Prem Nagar area. But it is said that the accused were raided there. The spot map though not exhibited shows that the raid was laid in the house of Ram Bharti which was near Jhulelal Dharmashala. Except one carpet, playing cards and money nothing was recovered. The defence of the accused was that there was a meeting in the house of Ram Bharti. Accused Ram Bharti has stated in examination of accused under section 313, Criminal Procedure Code that his sister was to be operated and for that he was getting contributions from the persons sitting there.

6. The learned counsel for the applicants-accused has argued that since money, carpet and playing cards were recovered no presumption under section 6 of the Act can be drawn. Merely because these articles and money was recovered it cannot be said that the accused No.2 to 11 were with the aid of money playing gamble. These articles are so common that they are always available in every house. There is no iota of evidence that accused were gambling and accused Ram Bharti was using the house as gambling house. There is no evidence to show that accused was making profit and charging commission for the use of the house for the purpose of gambling the Officer S.P. Mishra who led the raid party and conducted seizure 0 the articles etc. was not examined in the Court. FIR has also not bee proved by the prosecutio