JUDGMENT

Mosely, J - Report.--In his Criminal Regular Trial No. 29 of 1934 the First Class Additional Magistrate of Taikkyi, U Maung Maung, convicted 34 accused persons of gaming and making preparations to set cocks to fight in a place to which the public have access with a common intention of wagering money under Section 10(a)(b)(c), Gambling Act, and sentenced each of them to-pay a fine of Rs. 15 or in default to suffer seven days' rigorous imprisonment. Six of those accused have been committed to jail for failure to pay the fine. Of the rest eleven have paid their fines in full and 17 in part. The facts of the case-briefly are that the Inspector of Police, Taikkyi, on information received, led a raid on a cock-fighting waing at Zigon village. There can be no doubt that full preparation had been made for a cockfight and it seems that also minor attractions in the form of gambling with playing cards were provided. The scene of the waing was in a mango grove to which the public undoubtedly had access. As usually happens on these occasions, as soon as the raiding party appeared there-was a general stampede. The police succeeded in arresting some twenty of those present either on the spot or soon, afterwards, and it appears that the remainder were arrested on information supplied by those arrested first of all. While I have no doubt that the accuse are morally guilty and whole heartedly supported the proceedings and intended to enjoy an afternoon's gambling it seems to me that the Magistrate convicted them without having any materials on which to do so. The first prosecution witness, Sub-Inspector Maung Tin, described the-arrests as follows:

When my party is about the length of a. bamboo from the actual scene they all bolted-away, leaving about 20 of them who were then arrested by us. Their names are Maung Po Nyun, Tun Kyine, Tun Hline, San Bwin, San Hmyin, Po Tun, Po Thike, Po Tok, San Kwe, Maung Khine, Tun Khine, Maung Gyi, Aung, Hmyin, Tun Yin, Ko Min Gyaw, Ko Tha Shoon, Maung Pu, Ma Thein Yin, On Myint and Maung Tha Hline. Out of them Aung Hmyin, ran away but he was soon caught by us.

2. He also said that two small tables were found near accused Ma Thein Yin. The persons arrested were relieved of various sums of money found on them. The Sub-Inspector said further:

Remaining accused were arrested by me on the evidence of accused U Min Gyaw and Ko Maung Gyi.

3. Naturally, U Min Gyaw and Ko Maung Gyi being accused in the case, their evidence is not on the record, but it appears to be all that exists for the purpose of proving the presence of the other accused on this occasion. The Sub-Inspector could give no evidence at all as to who actually took part in the waing (presumably the gambling at cards is meant) or whether any commission was taken, nor could he say who acted as doing; nor did he see any wagering taking place. There was no cock-fighting when the police arrived, apparently because only one cock had up to that time been procured. The Sub-Inspector of Police said that "accused Po Nyun was caught redhanded." What he meant by redhanded he did not explain, except that earlier in his evidence he had said that he was informed that accused U Po Nyun was the daing for the cock-fighting. Most of the accused denied that they were present, a few admitted that they were present at the waing. From the evidence of first defence witness Maung On Saing, it seems to be borne out that the accused Maung Po Nyun was more than a mere idle spectator and was taking an active part in promoting the cock-fight. I entirely fail to see how the Magistrate could possibly have convicted accused 21 to 32, 35 and 36. as there is literally no evidence whatever on the record of their presence at the waing. With regard to the first twenty accused, while it may be taken as proved that they were present, there seems to me to be absolutely no ground for holding that they were committing any of the offences defined in Section 10. Burma Gambling Act, with the exc