BHIMRAO TRIMBAKRAO INGLE v. STATE OF MAHARASHTRA

The Judgment of the Court was delivered by

THAKKAR, J. Whether or not it was a 'common gaming house'' D is the question. Not is the answer.

The appellants were convicted for an offence under Section 5 of the Bombay Prevention of Gambling Act, 1887 (hereinafter called 'the Act') as it stood in 1972 for being found in a 'common gaming house' where they had assembled for the purpose of gaming. Appellant no. 6 E . was also convicted for an offence under Section 4 of the Act, for using a room as a common gaming house. The Sessions Court exercising appellate jurisdiction came to the conclusion that the gaming was tak- ing place in an office of the (Agricultural) Soil Conservation Depart- ment and that the room in which the gaming was taking place was not a -....l 'common gaming house' within the meaning of Section 3(ii)' of the F Act. On reaclting the conclusion that it was not a 'common gaming house', the Sessions Court came to the conclusion that the offence committed by Appellant No~ 6 would not fall under Section 4 of the Act.

The Sessions Court, however, recorded a finding of guilt against G

1Copy pinpoint1. As defined ~y section 3(ii) of the Act.·

2Copy pinpoint2. Section 3 (ii): "In this Act, 'common gaming house' means: In the case of any other form of gaming, any house, room or place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the pe.t:sons owning, occupying, using or keeping such house, room or place by way of charge for the use of such house, room or place or instruments or otherwise howsoever."

B.T. INGLE v. STATE OF MAH. [THAKKAR, J. [ 615

the appellants including Appellant No. 6 for an offence under SectiQn A 5 of ihe Act seeking support from Section 71 of the Act which provides for presumptive proof of keeping or gaming in a common gaming house.

Even though on· an appreciatwn of evidence adduced by the prosecution the Sessions Court came to the conclusion thai the pro· B ·secution had failed to establish that Appellant No. 6 was deriving any profit or gain by way of charges for the use of the room in question and · that accordingly it was not a 'common gaming house', the Court strangely enough held that it was a common gaming house within the meaning of Section 3(ii) of the Act by reason of the presumption under Section 7 of the Act. What was held to be 'not' a 'Common Gaming c House', having regard to the fact that evidence adduced by the pro· .secution was considered unacceptable could not have been held to be a common gaming house by recourse to the presumption undi:r section

7. The presumption is a rebuttable presumption which was not re· quired to be rebutted by the defence inasmuch as the proseuction evidence was discredited and rejected and the presumption stood re· D butted on that account. What is not a 'common gaming house' in fact in the light of evidence cannot become a common gaming hous~ by reason of a presumption under section 7. The reason is neither far to seek nor obsecure. What the prosecution is required to establish by recourse to the presumption is that the room is a 'common gaming house' as defined in the dictionary of Section 3(ii) that is to say that the occupier is collecting charges for the use of the room. When evidence is adduced and the prosecution fails to establish that such charges are in fact collected, how can the Court hold in the face of its own finding I . that such charges are collected, that even so it is a 'common gaming ~- house' because of the presumption? The Sessions Court was in error in convicting the appellants for an offence under Section 5 which can be committed only provided the.persons concerned were gaming or were present for the purpose of gaming in a 'common gaming house'. The High Court was in error in failing to appreciate the import of the said

1. Section 7: When any instruments of gaming has been seized in any house, r?om or plaCe entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the court is satisfied that ~he Police Officer who entered such house, room or place had reasonable grounds for suspecting that th~ thi_ngs so·seized was an instrument of gaming, the seizure of such instrume~t or thi.ng shall be evidence, until the contrary is prov.ed, that such house, room or place i_s used ,as .a .common gaming-house and the persons found therein were then present for the .purpos,e of gaming, although no gaming was actually seen by th.e Magistrate or tb~ Police Officer or by any person _acting under the authority of either of th~m. _f=J

616 SUPREME COURT REPORTS I 19861 3 S.C. R. A finding recorded by the Court on the basis of the appreciation of evidence that in fact it was not a 'common gaming house' as found by the Sessions Court, and confirmed by the High Court. None of the appellants could therefore be convicted for an offence under Section )I

B The appeal is, therefore, allowed. The order of conviction and sentence is set aside.

A.P ..I. Appeal allowed.

1. Section 5: "Whoever is found in any common gaming house gaming or present for the purpose of gaming shall, on conviction, be punishable with imprisonment which may extend to six months and with fine .... ''