H.N.Kapoor - (1.) THIS revision has been filed by Subhas Sethi, Shamim Ahmad, Sabir Husain and Naqi Haider against the order and judgment dated 1))-9-l975 of the IV Addl. Sessions Judge, Moradabad in Cr. Appeal No. 146 of 1975 confirming the order of the trial court by which Subhas Sethi has been convicted under Section 3 of the Public Gambling Act and sentenced to pay a fine of Rs. 200/- and further convicting him under Section 4 of the same Act and sentencing him to pay a fine of Rs.100/- under that section. Shamim Ahmad, Sabir Husain and Naqi Haider have further been convicted under Section 4 of the said Act and sentenced to pay a fine of Rs. 100/- each.
(2.) THE revision was admitted on the question of sentence. Sri H. S. Joshi, learned counsel for the applicants after seeing the record which has now been received, however, sought permission to argue the revision on merit. He was allowed to do so. The prosecution case is that on getting information that Subhas Sethi w.as keeping a gaming house, the Sub- Inspector got the warrant signed by the Magistrate and raided his house. He found that he was gambling along with the other three accused persons, namely, Shamim Ahmad, Sabir Husain and Naqi Haider. Shamim Ahmad and Sabir Husain were the employees of the Hydle department. He arrested the four accused persons with the help of witnesses who were also there. All the applicants were duly prosecuted. The applicants denied the prosecution allegations. Five witnesses in all were examined in support of the prosecution case. The case of Subhas Sethi was that he was falsely implicated on account of enmity with the police. The learned Magistrate rejected the evidence of three witnesses, namely Ramsaran (P. W. 1), Ladden (P. W. 2) and Ahmad Box (P. W. 3) and relied only on the evidence of S. I. Hakim Rai and Sri Prem Kumar and convicted and sentenced them as stated above. The lower appellate court agreed with the conclusion arrived at by the trial court.
(3.) LEARNED counsel for the applicants has argued that there can be no conviction under Section 3 of the Act as it has not been proved that Subhas Sethi was maintaining a common gaming house. Much emphasis has been Lald by the lower court on the fact that the door of the house was open. There lis some inconsistency with regard to this fact also. Some witnesses have stated that it was closed. Even if it is assumed that it was open, it would not mean that it was open to the persons of the .public in general. Subhas Sethi, Shamim Ahmad and Sabir Husain are residents of the same mohalla Faizganj. Naqi Haider is a resident of Amroha Gali. Shamim Ahmad and Sabir Husain are also employees of the Hydle department and the last person Naqi Haider is a businessman of the same town. All these persons could be intimate to each other specially when three of them are residents of the same mohalla. Even if it. is assumed that they were playing cards with stakes inside the house of Subhas Sethi, that fact alone would not bring them under the mischief of any of the: sections of the Public Gambling Act unless it could be proved that Subhas Sethi was maintaining any gaming house; within the meaning of Section 3 of the: said Act. The only evidence adduced for this purpose is that Subhas Sethi had won and collected Rs. 2/- each from the other three accused persons and in addition had collected 25 NP. from each of the accused and had put the same inside the pocket. Prem Kumar in his examination-in-chief could not say as to for what purpose this additional .25 NP. was taken. There is no evidence that some other persons had won and Subhas Sethi had then collected this amount by way of Nal. It may be that he might have collected the additional sum by way of Salami having exposed a good card. In my opinion, the evidence falls far short of bringing the case under Section 3 or 4 of the U. P. Gambling Act and the applicants are, therefore, entitled to be acquitted. In the result the revision is allowed and the conviction and the sentences of the applicants are set aside. Fine if, paid, shall be refunded to them. Revision allowed.;