LALJI Vs. EMPEROR

JUDGEMENT

(1.) The total number of applicants in this revision is nine. One of them Lalji was convicted under Secs.3 and 4, Gambling Act, and sentenced to a fine of Rs. 25 on each count. The remaining eight were convicted under Section 4 of the same Act and sentenced to pay a fine of Rs. 25 each. All of them went in revision to the learned Sessions Judge who by an order dated 19 April 1947 confirmed the convictions and sentences passed on them. The applicants have now come up in revision to this Court.

(2.) The facts which have given rise to this application may now be given shortly: The prosecution story is that Lalji was keeping a common gaming house, that on 27 October 1946 at about 2 P.M., the applicants were found gambling in the house of Lalji when the second officer of Sisamau who had a search warrant under Section 5 of the Act went to conduct a search of that house. The main point which has been raised in this case is that the applicants could not be convicted under law as the search warrant was on the face of it illegal. The ppsition in regard to the search warrant is that it was neither addressed to any particular police officer nor did it state that the place which was to be searched was a common gaming house. There is no doubt that the warrant suffers from these two defects. The question is whether the defects from which the warrant undoubtedly suffers are curable under Section 537, Criminal P.C. So far as the fact that the name of the police officer is not mentioned in the warrant is concerned, the position is that the law does not require that the warrant must be directed to one or more police officers. I am not, therefore, disposed to attach any importance to the plea that the warrant was not addressed to any particular police officer. It has been repeatedly held that the police administration of the country would become impossible if a warrant had to be directed by name to a police officer and upon his transfer it became incapable of execution till the name of some other officer had been sub-stituted in his place.

(3.) The other defect from which the warrant suffers is that it did not state that the house which was to be searched was a common gaming house. This defect is of a more serious nature. Section 6, Gambling Act, enables a presumption to be raised against persons found in a common gaming house of being there for the purpose of gaming. It, therefore, casts the burden of proving that a person found in the common gaming house was not there for the purpose of gaming, upon the person so found. For this reason it is important to ensure that the provisions of Section 5 which lay down the requirements of a legal warrant under the Gambling Act are complied with strictly. The position in this case is that if the warrant was illegal under Section 5, no presumption would arise that the applicants found in the house had gathered there for the purpose of gambling. That they were gambling will have to be proved as a fact by cogent and independent evidence without any presumption being made that they were so gambling.