Decided on September 09,1966



N.K.VAKIL - (1.) This criminal appeal is filed by the State against the order of the City Magistrate 10 Court Ahmedabad in Summary Case No. 541 of 1964 whereby the two respondents were acquitted of the charges under secs. 4 and 5 of the Bombay Prevention of Gambling Act 1887 Before this appeal could be heard on 13th June 1965 respondent No. 1 (Original accused No. 1) has died. His death certificate is produced and the learned Assistant Government Pleader Mr. G. T. Nanavati appearing for the appellant-State concedes that respondent No. 1 has died. So we have now to consider the appeal against respondent No. 2 only.
(2.) On the 12th of December 1963 Police Inspector B. F. Jadeja suspecting that in the house of deceased respondent No. 1 he and respondent No. 2 were gaming raided the house in the presence of panchas. The prosecution case was that they were found taking satta-betting i. e. gambling on American futures. Both the respondents were found sitting on a carpet. Respondent No. 1 was writing something on a pad. Then both were seen counting money. Then the raiding party entered the room and found 68 slips whereon names of certain persons were written. These slips and some amount were attached. They also attached a consolidated statement and a diary showing some accounts of several persons. On these facts accused No. 1 faced the charges under secs. 4 and 5 and accused No. 2 under sec. 5 of the Bombay Prevention of Gambling Act. It was claimed that Police Inspector Jadeja was authorized by general order by the Police Commissioner dated the 12th of January 1962 under sec. 6 of the Bombay Prevention of Gambling Act. It is Exhibit 4 and is as follows :- Order under sec. 6 of the Bombay Prevention of Gambling Act. In exercise of the powers vested in me under sec. 6(1) of the Bombay Prevention of Gambling Act 1887 (Bom IV of 1887) as amended upto-date I N. Rama Iyer Commissioner of Police Ahmedabad City hereby empower Shri B. P. Jadeja Inspector of Police Ahmedabad City (a) to enter with the assistance of such persons as may be found necessary by night or day and by force if necessary any house room or place which be has reason to suspect is used as a common gaming house. (b) to search all parts of the house room or place which he shall have so entered when shall have reason to suspect that any instruments of gaming are found therein whether such persons are then actually gaming or not (c) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming and which are found therein. Given under my hand and seal this 12th day of January 62 at Ahmedabad. Sd. N. Rama Iyer. Commissioner of Police Ahmedabad City.
(3.) At the trial after recording the evidence the learned Magistrate held that the order Exhibit 4 whereby P. I. Jadeja was empowered by the Police Commissioner could not be held to be a general order within the meaning of sec. 6 of the Bombay Prevention of Gambling Act and therefore the presumption under sec. 7 of the said Act could not arise. He further held that in the absence of such a presumption the actual gaming as also the profit and gain motive of accused No. 1 has also to be proved by the prosecution. But the prosecution had failed to put on record any evidence to prove either of these facts. On these grounds the learned Magistrate acquitted both the accused.;

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