JUDGMENT

Wazir Hasan, A J C - This is an application under Section 439 of the Code of Criminal Procedure. The applicants are 20 in number. They have been convicted by a Special Magistrate of the first class, exercising jurisdiction in the city of Lucknow under Sections 3 and 4 of the Public Gambling Act 1867. One of the applicants, Chhote Lal has been sentenced to a fine of Rs. 50 and the other applicants to a fine of Rs. 10 each. The applicants were dissatisfied with the order of the trial Court and challenged it by an application in revision presented to the District Magistrate of Lucknow. The learned District Magistrate rejected that application. Hence this application before me.

2. The facts found by the trial Court are as follows:

On the night following the 11th November there was a Katha at the house of Chhote Lal, applicant, in the early part of the evening. The Katha was followed by a dinner in the same house.. A large number of persons were invited by Chhote Lal, both to the Katha and to the dinner and a large number of persons took part in both. The dinner proceeded for a long time and did not come to an end until some time between 10 and 11 p.m. In those days a sort of Curfew order was in force in the City of Lucknow and as the learned Magistrate in the trial Court observes, people were forbidden to go about after 10 p.m. The congregation assembled at the house of Chhote Lal naturally, in the circumstances, prepared itself to pass the night in Chhote Lal's house. At 2 a.m. in the morning the police made a raid of the house under a warrant issued by a competent Magistrate and arrested the applicants under Section 5 of the Public Gambling Act. Some cauris were also found by the police on the spot but nothing else of any incriminating nature.

3. It was first contended on behalf of the applicants that cauris were not instruments of gaming and reliance was placed upon a decision of Mr. Justice Aikman in the case of Queen-Empress v. Shawani (1896) 18 All. 23. That decision entirely supports the contention but is no longer good law. By U.P. Act of 1917 the definition of "common gaming house" in the Act of 1867, was amended and within the substituted definition is included the following:

Instruments of gaming include any article used as a means or appurtenance of, or for the purpose of carrying on or facilitating gaming.

4. I have no doubt in my mind that cauris will fall within the definition of instruments of gaming as set forth above.

5. It was next argued that it was not proved that Chhote Lal kept or used this house for any profit or gain, such a proof being necessary to constitute the house a common gaming house within the definition in the Act. It is true that there is no such proof on the record of the ease. In answer to this argument the prosecution, however, relies on the presumption raised by Section 6 of the Public Gambling Act. I am of opinion that presumption is applicable to the facts of the present case. I have already found that the cauris are instruments of gaming. It is proved, indeed it is admitted, that they were found in Chhote Lal's house at the time of the police raid. It is also admitted that Chhote Lal's house was searched under the provisions of Section 5 of the Public Gambling Act. It follows that there is a presumption that Chhote Lal's house was used as a common gaming house and further that the persons found therein were there present for the purpose of gambling. Within the presumption that Chhote Lal's house was used as a common gaming house is included the ingredient that he kept or used the house for profit or gain.

6. It was lastly urged that the presumption is rebuttable and is rebutted in the present case. That it is rebuttable is not disputed. The real question therefore which I have to decide is whether on the facts found the presumption in question is rebutted. I am of opinion that it is. In considering this aspect of the case I take into account the fact that there is no proof on the