Seizure of money in personal search under Section 5 of the Public Gambling Act, 1867 does not authorize forfeiture under Section 8.

Digby, J—The learned Additional Sessions Judge, Nagpur, has recommeded that orders of forfeiture of certain moneys and a gold ring made by the trial Magistrate under Section 8, Public Gambling Act, 1867, should be set aside. So far as is known, the moneys and the gold ring were found on search of the persons of the various accused, and the argument of the learned advocate for the Crown has proceeded on this basis.

2. The construction of Sections 5 and 8, Public Gambling Act, 1867, presents considerable difficulty. It appears to me, however, that the scheme of 8. 5 of the Act, is to distinguish the seizure of articles found on entering the place of gaming from the seizure of articles found on more intensive search including the search of the persons who have been taken into custody, and the words in Section 5 'found therein'' do not apply to what is found on search of the persons of those taken into custody. Furthermore, it appears that the articles which should be seized on search of the person under Section 5 of the Act do not include money. It appears that although the definition of instruments of gaming is very wide in Section 1 and although in Section 4 money is an instrument of gaming when it is used for purposes of gaming, nevertheless, in Section 5 and Section 8 money is distinguished from an instrument of gaming. The money seized under Section 5 and forfeited under Section 8 is money seized as found on the premises and connected with gaming by suspicion, not money found in the pockets of those taken into custody.

3. It appears that in Section 8 the word ''therein'' has a wider signification than in Section 5. Obviously, it is the intention of the Legislature that instruments of gaming such as cards found in the pockets of persons who are taken into custody and searched should be destroyed, and if it were not that's. 8 were controlled by the provisions of Section 6, all money found in the pockets of persona taken; into custody would be liable to be forfeited. As I consider, Section 8 is controlled by Section 5 and as I do not think that Section 5 authorises seizure of money from pockets of those who are taken into custody, it follows that the moneys seized in personal search cannot be forfeited, nor a ring seized in personal search. This view is in accordance with the view expressed in Pyarelal v. Emperor, Misrilal v. Emperor,1927 AIR(Lah) 338 and generally in accordance with the view in In re Ramprasad Ganesh Prasad There is also the decision of the Nagpur Judicial Commissioner's Court in Chaturbhuj v. Emperor,1923 AIR(Nag) 66 which, I think adopts the same construction of Section 5 as I have adopted. Accordingly all the moneys seized from various accused and the ring will be returned to them. I desire to add that the police should always note what money is found on personal search and where, as this may provide evidence of playing, quite apart from seizure.