(1.)THE appellants, who were accused Nos. 1 and 7 in the Court below, were convicted respectively under Sub-section 4 (a) and Section 5 and under Sub-section 4 (b) and Section 5 of the Bombay Prevention of Gambling Act and sentenced to undergo two months' rigorous imprisonment and to pay a fine of Rs. 500, in default to suffer a further one month's rigorous imprisonment by Mr. S. A. Hatteea, Presidency Magistrate, Ninth Court, Bandra.
(2.)TRIED with the appellants were 15 other persons, who were charged under Section 5 only, and were convicted and sentenced to pay a fine of Rs. 100 each. They have not appealed.
It is now common ground that on the afternoon of April 21, 1945, which was Easter Sunday, all the accused were playing cards for money in a flat at 111, Chapel Road, Bandra, the tenancy of which is in the name of the wife of the appellant who is accused No.7, and that Inspector Solomon of the Bandra Police Station, who is an officer specially authorised by order of the Commissioner of Police made under Section 6 of the Act, and a party of about 15 constables raided the flat on that afternoon. Nor can it be disputed that playing cards and a sum of Rs. 365-7-3 were exposed on the floor amidst the 17 accused, and that the pockets of the 17 accused, when they were searched, produced a further total sum of upwards of Rs. 3,300. These circumstances by themselves do not necessarily constitute an offence (see Reg. v. Davies  2 Q. B. 199 and Emperor v. Chimanlal Maneklal (1917) 19 Bom. L. R. 693.)
Unfortunately the accused, like many other persons who are arrested, were foolish enough to commence their defence by telling obvious untruths, for each of them on July 9, 1045, made statements before the learned Magistrate that he did not gamble at all, but saner counsel having prevailed, each of them on August 1. 5 subscribed to the statement of accused No.5, from which the following is an extract : I therefore wanted to perform Moulud and Kavali on the night of April 20, 1946, and April 21, 1946, and had invited many friends of several communities. I had obtained a police permit for using loud speakers so that the audience might hear and enjoy the kavali songs at a far distance. The kavali went on till 1 a. m. on April 21, 1946, when the audience dispersed, hut the friends who had come from Bombay had no train to take them back at that hour. As April 21, 1046, was Easter Sunday I and my friends decided that we should spend the day by playing a game of cards among ourselves at the place of Pascal John Albert (accused No.7), which is situate in a lonely place in a small gulley away from the public road. This place is not likely to attract the attention of the passers-by. We also decided that in the evening we should have a khana before dispersing to go home. It appears some one among the men that were there must have heard the above talk that took place among us and then must have contacted with the police and given false information, evidently with the idea that in case there was conviction, he stood to get a reward. Acting on this kind of information, the complainant raided the place at about 3 p. m. but this time no game of pat was going on, nor was it gambling, but as stated above, it was a play among friends to while away time till the khana was ready in the evening.
(3.)BEFORE proceeding further it is necessary to examine some of the sections of the Bombay Prevention of Gambling Act, 1887. Section 3 is the definition section, and defines "gaming" as: including wagering or betting, except in certain circumstances upon horse races, "instruments of gaming" are defined as including any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming and winnings or prizes in money or otherwise distributed or intended to be distributed in respect of gaming.
A "common gaming house" is defined as meaning: a house, room or place in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room or place whether he has a right to use the same or not, such profit or gain being either by way of a charge for the use of the instruments of gaming or of the house, room or place or otherwise howsoever.