SHARMA, J. - (1.) THIS is a reference by the learned Additional Sessions Judge, Jaipur City in a case under sec. 4 of the Public Gambling Act. The accused Radhey Shyam was convicted by the second Assistant City Magistrate Jaipur Under the aforesaid section and sentenced to a fine of Rs. 30/ -.
(2.) THE case against him was that Shri Mahesh Chandra. Sub-Inspector, Police Station, Ramganj got an information the 25th of June, 1952 that gambling was going on at the shop of the accused. He obtained a warrant form the Superintendent of Police on the 12th June, 1952, for conducting a raid on the shop of the accused. A signed one rupee note was given to Birda P. W. 2 to use it in betting on figures 1, 4, 7 and 8 at the shop of the accused. Birda took that note to the accused and stated it on the given number. Meanwhile the Sub-Inspector reached the spot and recovered the note with a slip of paper on which the name of Birda was written. THE applicant was challaned under secs. 3 and 4 of the Public Gambling Act. Re denied that he was either keeping a common gaming house or was gaming at any common gaming house. THE learned Magistrate, however, convicted him under sec. 4 of the Public Gambling Act and sentenced him as mentioned above. THE accused Radhey Shyam went in revision to the learned Additional Sessions Judge and he has made this reference recommending that the conviction and sentence of Radhey Shyam be set aside. Parties have not appeared. I have gone through the record of the case well as the explanation submitted by the learned Magistrate under Rule 80 of the High Court (Criminal) Rules. The conviction by the learned Magistrate was mostly based upon presumption under sec. 6 of the Public Gambling Act. The said section, however applied when any cards, dice, gaming tables, clothes, boards or other instruments of gaming are found in any house walled enclosure, room or place, entered or searched under the provisions of sec. 5. Sec. 5 authorises a Magistrate of a District or other Officer invested with the full powers of a Magistrate or the District Superintendent of Police to issue a warrant authorising that Officer of police, not below such rank as the Government appoints in this behalf to enter, with such assistance as may be found necessary by night or by day, and by force, if necessary, any such house, walled enclosure, room or place, if the Magistrate or the Superintendent of Police as the case may be, upon credible information, and after such enquiry as he may think necessary, has person to believe that any house walled enclosure, room, or place is used as a common gaming house. The learned Additional Sessions Judge has found that the warrant in the present case was not legal as it appears that certain interpolations have been made in it and that it was issued on the 12th June, 1952 whereas, information leading to the necessity of such a warrant was given to the Sub-Inspector, Mahesh Chandra on the 25th of June, 1952. On looking at the warrant very carefully and perusing the evidence of Shri Mahesh Chandra, I quite agree with the learned Additional Sessions Judge that the warrant was suspicious. Of course it was signed by Superintendent of Police but certain interpolations, namely, Exs. PA, PB and PC appear to have been made afterwards. It does not stand to reason why a warrant should be obtained on the 12th of June, 1952 when the information about the keeping of the gaming house was given to the Sub-Inspector on the 25th June, 1952. I shall not be surprised if the Sub-Inspector obtained the blank warrant signed by the Superintendent of Police to be filled up with necessary details as and when the occasion arose. Such a warrant cannot be said to be legal under sec. 5 of the Public Gambling Act and it cannot be said that it was issued by the Superintendent of Police on the credible information and after making inquiry as he thought necessary the presumption u/sec. 6 of the Public Gambling Act could not therefore, be raised. Moreover a person found in the house can be presumed to be gaming only when cards, dice and other instruments of gaming are found in the house at the time of search. No such things excepting a paper and one rupee note was found inside the house. The contents of the paper were not proved and it was not disclosed how its contents led to the conclusion that it was meant for the purpose of gaming. It was the duty of the prosecution to explain what is gaming according to the American features. To my mind, learned Additional Sessions Judge was perfectly justified in holding that the guilt was not brought home to the accused. The reference is accepted, the conviction,, and sentence of Radhey Shyam accused is set aside and he is acquitted. The fine if paid shall be refunded to him. .;