Hidayatullah, J. - (1.) This is an appeal by special leave against an order of the Madhya Pradesh High Court (Gwalior Bench), by which a criminal revision filed by the three appellants was dismissed. The three appellants with five others were tried for offences under S. 4 of "The United State of Gwalior, Indore and Malwa (Madhya Bharat), Gambling Act, Samvat 2006", (Madhya Bharat Act No. 51 of 1949) (Samvat 2006) ). Krishna, chandra, the first appellant, was also tried under S. 3 of the Act. All the original accused except one were convicted under S. 4 of the Act and sentenced to one month's simple imprisonment. Krishnachandra was convicted in addition under S. 3 of the Act and sentenced to one month's simple imprisonment. The sentences in Krishnachandra's case were ordered to run concurrently.
(2.) All these persons appealed unsuccessfully, to the Court of Session. The three appellants then filed a petition for revision in the High Court. The High Court also issued a notice under S. 439 of the Code of Criminal Procedure to these appellants to show cause why the sentences passed on them should not be enhanced. The High Court by its order dated December 14, 1960, dismissed the revision petition filed by the appellants and in addition to the sentence of imprisonment imposed a fine of Rs. 200 on each count or counts for which they were originally convicted. The appellants asked for a certificate to appeal to this Court but it was refused by the High Court. The appellants, however, obtained special leave from this Court and have filed the present appeal.
(3.) Only one point has been argued before us and it is that S. 6 of the Gambling Act is ultra vires the Constitution and is against the principles of natural justice and the fundamentals of criminal jurisprudence. A similar contention has also been raised about S. 8 of the Act. The Madhya Bharat Act is almost a replica of the corresponding Indian statute. Though it differs slightly in its wording, the purport and intent is almost the same. There are three definitions in S. 2 of the Act which control the later provisions. The expression "gaming" is defined to include "wagering and, betting" and the explanation attached to the definition provides:- "Any transaction by which a person in any capacity whatever employs another in any, capacity whatever, or engages for another in any capacity whatever, to wager or bet with another person, and the collection or soliciting of bets, receipt or distribution of winnings on prizes in money or otherwise in respect of wagering or betting or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution, shall be decried to be gaming'." "Gaming house" is defined to mean- "Any house, room, tent, enclosure, space, vehicle, vessel or any place whatsoever in which gaming takes place or in which instruments of gaming are kept or used for gaming." The expression "instruments of gaming" includes- "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 on evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or otherwise distributed or intended to be distributed in respect of any gaming;" These definitions show that a gaming house is a place in which gaming takes place or in which instruments of gaming are kept for use for gaming, that is, for wagering or betting etc. or for the purpose of facilitating wagering or betting etc. Two offences have been created by the Act affecting respectively the keeper of a gaming house and persons found gaming or present for the purpose of gaming, in a gaming house. Setting 3 which creates the offence affecting the keeper of a gaming house provided as follows: "3. Whoever- (a) opens, keeps or uses any, house, room or place for the purpose of a gaming house; (b) being the owner or occupier of any such house, room or place knowingly or wilfully permits the same to be opened, occupied, kept, or used by any other person for the purpose aforesaid; (c) has the care or management of, or in any manner assists in conducting the business of, any such house, room or place opened, occupied, kept or used for the purpose aforesaid; (d) advances or furnishes money for the purpose of gaming with persons frequenting any such house, room or place; shall on conviction be punishable with imprisonment which may extend to six months and with, fine: "A proviso provides for enhanced penalties for the first, second, third or subsequent offences. Section 4 which makes gaming in a gaming house an offence provides: "4. Whoever is found in any 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." A special presumption is provided as follows:- "Any person found in any gaming house during any gaming therein shall be presumed, until the contrary is proved to have been there for the purpose of gaming." A proviso provides for enhanced penalties in the same way as in S. 3.;