SIDDANNA Vs. STATE OF MYSORE
LAWS(KAR)-1966-1-9
HIGH COURT OF KARNATAKA
Decided on January 07,1966

SIDDANNA Appellant
VERSUS
STATE OF MYSORE Respondents

JUDGEMENT

H.Hombe Gowda, C.J. - (1.)This revision petition is directed against the order passed by the Munsiff-Magistrate, Yadgir in Criminal Case No. 4.3.1963 convicting the nine petitioners under Section 5 of the Hyderabad Gambling Act and sentencing each of them to pay a fine of Rs. 50/- and in default of the payment of fine to suffer S.I. for two weeks.
(2.)The nine petitioners and another person by name Nazimul Saquib (A. 10) were prosecuted by the Sub-Inspector of Police of yadgir for offences punishable under Sections 4 and 5 of the Hyderabad Gambling Act. The charge against the petitioners is that they were found playing a game of cards with money for stakes in a common gambling house bearing No. 1, 2, 92 situated Station area in Yadgir town at about 10 P.M. on 9.7.1962. The charge against A. 10 Nazimul Saquib was that he was the occupier of the premises which was used as a common gambling house and had knowingly allowed the petitioners to indulge in gambling in the said house. All the accused denied the charges framed against them. The prosecution examined lour witnesses to prove the charges against the accused persons. One witness was examined for the defence. After assessing the evidence placed on record by the prosecution the learned Magistrate held that the prosecution had failed to establish that A. 10 Nazimul Saquib was the occupier of the premises bearing No. 1.2.92 situated in Station area of Vadgir in which the other accused persons were indulging in gambling and/or that lie had knowingly allowed the other accused persons to engage themselves in gambling in the said premises. He accordingly acquitted him of the charge. But the learned Magistrate held that the present petitioners (accused 1 to 9) were guilty of an offence punishable under Section 5 of the Hyderabad Gambling Act and convicted and sentenced them as above stated. The learned Magistrate rejected the contention put forward by the petitioners that the evidence on record did not satisfactorily establish the fact that the petitioners were in fact playing a game of chance and as such are liable to answer a charge punishable under Section 5 of the Hyderabad Gambling Act. The learned Magistrate also rejected the contention that the search warrant Exhibit P, 3 on the authority of which the Sub-Inspector of Police raided the house in which some of the petitioners were playing cards was invalid and that therefore no presumption under Section 7 of the Hyderabad Gambling Act could be raised on the mere fact that a pack of cards and some money were found in the premises when the same was searched on the night of 9.7.1962, Being dissatisfied with the convictions and sentences passed against them, the petitioners have filed this revision petition.
(3.)Mr. Malimath, the learned Counsel for (the petitioners, has challenged the correctness and legality of the convictions of the petitioners under Section 5 of the Hyderabad Gambling Act. He urged two contentions. Firstly, the material placed on record is not inconsistent with the case of the petitioners that some of them were playing a game of skill and were not gambling. He urged that there is sufficient material in the evidence placed on record by the prosecution itself to prove that the petitioners were not playing any game of chance with money as stakes and that some of them were engaged in playing a game of skill as a pastime and there-tore, they are not guilty of an offence punishable under Section 5 of the Hyderabad Gambling Act. He further contended that the mere fact that a pack of cards and some money were found in the house when the same was searched at about 9-30 p.m. does not necessarily lead to the irresistible conclusion that either the petitioners that were actually playing cards or others that were present in the place were indulging in gambling in the said house. Secondly, it was urged that the finding of the learned Magistrate that the search warrant Exhibit P. 3 is valid is clearly erroneous. He strenuously urged that Exhibit P. 3 which did not bear the seal of the Court and which is the authority for the Sub-Inspector of Police to invade the house of the 10th accused Nazimul Saquib was invalid in law and that any recovery effected during the illegal search, even if they are instruments of gambling, dos not enable the prosecution to rely upon the presumption under Section 7 of the Hyderabad Gambling Act. According to the contention of Mr. Malimath even assuming that the articles that were seized during the search were instruments used for gambling, the prosecution is not entitled to ask the court to draw presumption under Section 7 of the Hyderabad Gambling Act and therefore, the conviction of the petitioners is illegal and is liable to be set aside.


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