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PETITIONER: JAGAT SINGH KISHOR SINGH DARBAR ETC.

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT06/02/1979

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. KAILASAM, P.S. DESAI, D.A.

CITATION:  1979 AIR  857            1979 SCR  (3)  33  1979 SCC  (4) 307

ACT:      Bombay Prevention  of Gambling Act, 1887-S. 3(ii)-Scope of-Direct  relafion   With  use  of  the  premises  or  with instrument of gaming-If necessary ro bring tilC placc within the scope  of the definition-Mere probability or expectation of profit-If sufficient-Presumption under s. 7-When raised.

HEADNOTE:      The term "common gaming house" has been defined in s. 3 of the  Bombay ‘Prevention  of Gambling Act, 1887. Under cl. (i) of  the section  a house  or place  in which  any of six different types  of gaming enumerated therein takes place or in which  instruments of  gaming are  kept or  used for such gaming would fall within the definition. Clause (ii) of that section states  that in the case of any other form of gaming (a) any  house,  room  or  place  whatsoever  in  which  any instruments of gaming are kept or used (b) for the profit or gain of  the person owning, occupying, using or keeping such house, etc., (c) by way of charge for the use of such house, room or  instrument or otherwise howsover, would be a common gaming house.      Certain instruments of gaming were seized by the police from the premises of appellant no. 1 in both the appeals. He was convicted  for keeping  a common  gaming house while the other appellants  were convicted of an offence under s. 5 of the Act.      On appeal,  rejecting the appellants’ contention that a mere expectation  or  probability  of  profit  arising  from gaming, without  establishing a direct relation with the use of the  premises or with instruments of gaming, would not be sufficient to  bring the  place  within  the  scope  of  the definition,  the   High  Court  held  that  the  purpose  of occupying or  using the premises must be such profit or gain as meant  a probability or expectation of profit or gain and not necessarily a certainty of it. F      The argument urged before the High Court was reiterated in appeal before this Court.      Dismissing the appeals, ^      HELD: 1.  The expression "or otherwise howsoever" is of the widest  amplitude and  cannot be restricted to the words

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immediately preceding it, namely, "for profit or gain.... by way of charge for the use of the premises." [37F]      2. For  proving that  a particular house, room or place was a  common gaming house, it would be sufficient if it was shown that  the house was one in which instruments of gaming were kept  or were used for the profit or gain of the person keeping or  using such  place, that  is,  where  the  person keeping or using the house knew that profit or gain would in all probability la result from the use of the instruments of gaming. Profit  or gain  may not  actually result  from such use. Even the hope of making a profit out of the 34 gambling would  be sufficient  to satisfy the definition. In given case  the occupier  of a house may allow it to be used by the  public for  gambling and he himself may take part in it in  the  hope  of  making  profit  although  he  may  not necessarily make  it  every  time.  Such  a  hope  would  be sufficient to  make the  house a common gaming house and the occupier liable  for keeping  such a house. At the same time the prosecution  must establish  that the purpose of keeping or using  the instruments  was profit  or gain, which may be done either  by showing  that the owner was charging for use of the  instruments of  gaming or  for the use of the house, room or  place or  in any  other manner that may be possible having regard to the nature of the game carried [38E, 39E-F]      3. The  profit  or  gain  and  the  other  requirements mentioned in  cl. (ii)  of the  definition are  a matter  of peremptory presumption  which has  to be raised by the court as soon  as seizure  of instruments of gaming from the place is proved. Section 7 which allows a presumption to be raised against the accused, provides that seizure of instruments of gaming from  the  premises  shall  be  evidence,  until  the contrary was  proved, that they were used as a common gaming house and  the persons  found therein  were present  for the purpose of  gaming, although no gaming was actually seen. In the instant  case there  is no  evidence in  rebuttal of the presumption. [40F-Gl

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 126 127 of 1972.      (From the Judgment and Order dt. 21-4-72 of the Gujarat Court in Criminal Revision Appln. Nos. 490-491 of 1971).      S. K. Dholakia and R. Ramachandran for the appellants.      S. P. Nayar and M. N. Shroff for the respondents.      The Judgment of the Court was delivered by      KOSHAL,  J.  By  this  judgment  we  shall  dispose  of Criminal Appeals Nos. 126 and 127 of 1972 both of which have been instituted on certificates granted under Article 134(1) (c) of  the Constitution  of India  by  the  High  Court  of Gujarat against  the judgment  dated April  21,  1972  of  a Division Bench  of that  Court upholding  the conviction  of each of  the appellants  under section 4 or section 5 of the Bombay Prevention of Gambling Act 1887 (hereinafter referred to as the Bombay Acc) and a sentence of imprisonment coupled with fine.      2. Appeal  No. 126  of 1972  has been  filed  by  eight persons. Appellant  No. 1  has been  convicted of an offence under section  4 of  the Bombay  Act for  keeping  a  common gaming house,  while  his  seven  co-appellants  were  found guilty of  an offence  under  section  5  of  that  Act.  In Criminal Appeal No. 127 of 1972, appellant No. 1 is the same person who  figures as  appellant No. 1 in the former appeal

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and the  conviction recorded  against  him  is  one  for  an offence under  section     or,  in  the  alternative,  under section 5  of the  Bombay Act.  His two  co-appellants  have earned a conviction under the section last mentioned. 35      3. The  two appeals have arisen from Criminal Revisions Nos. 490  A and  491 of 1971 both of which were dismissed by the High  Court through the impugned judgment. In Appeal No. 126 of 1972, appellant No. 1 was said to be keeping or using house No. 1408 situate in Ward No. 1 of Himatnagar town as a common gaming house and appellants Nos. 2 and 3 were said to have been  employed by him for carrying on in that house the business of  betting on  Worli Matka figures. On a search by the police, appellants Nos. 2 to 8 were found present in the house  from   which  numerous   betting  slips   and  boards indicating the  opening and  closing figures  of Worli Matka betting were recovered. A personal search of appellants Nos. 2 and 3 yielded counterfoils of the said slips.      The  allegations   against  the   three  appellants  in criminal appeal  No. 127  of 1972 were that all of them were found present  for the  purpose of  gaming in the said house which was,  as already  stated, being rum by appellant No. 1 as a common gaming house.      4.  The   only  contention  raised  on  behalf  of  the appellants before the High Court was that the said house had not been  proved to  be a  "common gaming  house" within the meaning of  the definition  of that  expression occurring in section 3 of the Bombay Act. That definition runs thus      In this Act, "common gaming-house" means-           (i) in the case of gaming-                (a)   on the market price of cotton, opium or                     other commodity  or on the digits of the                     number used is stating such price, or                (b)  on the amount of variation in the market                     price of  any such  commodity or  on the                     digits of the number used in stating the                     amount of such variation, or                (c)   on the  market price  of any  stock  or                     share or  on the  digits of  the  number                     used in stating such price, or G                (d)   on the  occurrence or non-occurrence of                     rain or other natural event, or                (e)   on the  quantity of  rainfall or on the                     digits of  the number  used  in  stating                     such quantity, or                (f)   on the  pictures, digits  or figures of                     one  or  more  playing  cards  or  other                     documents or objects bearing numbers, or                     on the total of such digits 36                     or figures,  or  on  the  basis  of  the                     occurrence  or   non-occurrence  of  any                     uncertain future event, or on the result                     of any  draw, or  on the  basis  of  the                     sequence   or    any   permutation    or                     combination of  such  pictures,  digits,                     figures, numbers, events or draws                any house,  room or place whatsoever in which                such  gaming   takes  place   or   in   which                instruments of  gaming are  kept or  used for                such gaming:           (ii) in  the case of any other form of gaming, any                house, room  or place whatsoever in which any                instruments of  gaming are  kept or  used for                the profit  or gain  of  the  person  owning,

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              occupying, using  or keeping such house, room                or place by way of charge for the use of such                house, room  or place  or instrument or other                wise howsoever."      Clause (i)  of the definition is obviously inapplicable to the  cases in  hand and  the plea  of the prosecution has throughout been  that the  house in  question squarely falls within clause  (ii) thereof. This plea was challenged before the  High  Court  on  behalf  of  the  appellants  with  the contention that  the house abovementioned had not been shown to be  kept for  use "for  the profit  or gain of the person owning, occupying  ........ "  because, according  to  their learned  counsel,  the  profit  or  gain  mentioned  in  the definition must  have a  direct relation with the use of the premises or  with the  instruments  of  gaming  and  a  mere expectation or  probability of  profit arising  from  gaming itself would not be sufficient to bring the place within the definition of  a common  gaming house.  The High Court noted that there  was a  clear distinction  between  the  language employed in  the two clauses of the definition so that while the element  of profit  or gain  of  the  person  owning  or occupying the  premises in  question  was  immaterial  under clause (i),  it was  an essential requirement of clause (ii) which deals  with forms of gaming not covered by sub-clauses (a) to  (f) of clause (i). The High Court therefore analyses the provisions  of clause  (ii) and  formed the opinion that the expression  "or otherwise  howsoever" occurring  therein had the  widest amplitude  and did  not take its colour from the  immediately  preceding  portion  of  the  clause  which employs the  words "by  way, of  charge for  the use of such house, room  or place  or instrument". Discussing the matter further  the   High  Court  was  of  the  opinion  that  the requirement of  the expression  "for the  profit and gain of the person  owning, occupying..  " was  that the  purpose of occupying or  using the premises must be such profit or gain as meant a probability 37 Or expectation  of profit  or gain  and  not  necessarily  a certainty of it A and that the expression would embrace even a case  where the keeper of the premises expected to gain by the process  of gaming itself. In coming to this conclusion, the High  Court relied  upon two Division Bench judgments of the Bombay  High Court  reported in  Emperor  v.  Dattatraya Shankar Paranjpe  and another(1)  and Emperor  v.  Chimanlal Sankalchand(Z) and  rejected as  untenable an opinion to the contrary expressed  in some  Allahabad cases  and  a  single Bench decision of the Bombay High Court in State v. Vardilal Natuchand, (Criminal  Appeal No.  551 of 1964 decided on the 14th of January 1965).      5. The  argument raised before the High Court on behalf of the  appellants has  been reiterated  before us  by their learned counsel, Shri S. K. Dholakia, but on a consideration of the definition extracted above, we cannot agree with him. It is  common ground  between the  parties that  the present case is  not covered by clause (i) of the definition so that what has  to be  considered is  the language  of clause (ii) thereof. For the applicability of the clause last mentioned, the following conditions have to be fulfilled:- D           (1)  Instruments of gaming must be kept or used in                the premises in question.           (2)  The  keeping  or  using  of  the  instruments                aforesaid must  be for  the profit or gain of                the  person   owning,  occupying,   using  or                keeping such premises.           (3)   Such profit  or gain may be by way of charge

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              for  the  use  of  the  premises  or  of  the                instruments   or    in   any   other   manner                whatsoever.      We fully  agree with the High Court that the expression "or otherwise  howsoever" is  of the  widest  amplitude  and cannot  be   restricted  F.   in  its  scope  by  the  words immediately preceding  it which  lay down that the profit or gain may be by way of charge for the use of the premises. In this connection  we may  usefully quote from the judgment of Shah,  Acting  C.J.,  who  delivered  the  judgment  of  the Division Bench  in Emperor  v. Dattatraya  Shankar Paranjpe, (Supra).           "It is  essential for  the prosecution  under this      definition to establish that instruments of gaming were      kept or  used in  he house, room or place for profit or      gain of  the person owning, occupying, using or keeping      the  house,   room  or   place.  It   may  be  done  by      establishing that  the person did so either by a charge      for use  of the  instruments of gaming or of the house,      room or place, or otherwise howsoever. The (1) 25 Bombay Law Reporter 1089 = A.I.R. 1924 Bombay 184. (2) 47 Bombay Law Reporter 75 = A.I.R. 1945 Bombay 305. 38      expression "otherwise howsoever" appears to be very com      prehensive, and  does not  suggest any limitation, such      as is contended on behalf of the accused."      ...... ....... .... ........ ....... ............      ...... ....... .... ........ ....... ............      "We have  heard an interesting argument on the question      as to how far the words justify the somewhat restricted      meaning which  has been  put upon the definition by the      learned Judge  of the Allahabad High Court; and after a      careful consideration  of the arguments urged on either      side, and  with great  respect to the learned Judges, I      have come  to the  - conclusion  that the  words of the      definition which  we have  to construe  here would  not      have their full meaning if we were to accept the narrow      construction.  I   do  not   think  that  on  a  proper      construction of  the definition  the prosecution can be      restricted for the purpose of proving that a particular      house, room  or place  is a common gaming house, to the      two alternatives  mentioned in  the case of Lachchi Ram      v. Emperor(’).  It is sufficient if the house is one in      which instruments  of gaming  are kept  or used for the      profit or  gain of  the person  keeping or  using  such      place, i.e.,  where the  person keeping  or  using  the      house knows  that profit  or gain  4  15  Will  in  all      probability result  from the  use of the instruments of      gaming. The profit or gain may not actually result from      such use.  But if  profit or  gain is  the probable and      expected result  of the  game itself-and if that is the      purpose of  keeping or  using the instruments, it would      be sufficient,  in my opinion, to bring the case within      the scope  of the  definition. At  the same  time it is      clear that  the prosecution  must  establish  that  the      purpose is  profit or  gain. This may be done either by      showing that  the owner  was charging  for use  of  the      instruments of gaming or for the use of the house, room      or place,  or in  any other manner that may be possible      under the  circumstances of  the case, having regard to      the nature of the game carried on in that house."      The opinion  of  Shah,  Acting  C.J.,  was  noted  with approval in  Emperor v.  Chimanlal Sankalchand  (supra), the reasoning adopted in which may be reproduced with advantage:           "Lachchi Ram’s  case was  considered by a Division

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    Bench of  this Court in Emperor v. Dattatraya (1923) 25      Bombay      (1) A.l.R. 1922 All. 61. 39      Law Reporter (1089) and was dissented from. It was held      that  to  constitute  a  common  gaming  house  it  was      sufficient if it was one in which instruments of gaming      were kept  or used for the profit or gain of the person      keeping or  using such  place, i.e.,  where the  person      keeping or  using the  house knew  that profit  or gain      would in  all probability  result from  the use  of the      instruments of  gaming. The  profit  or  gain  may  not      actually result from such use. But if profit or gain is      the probable and expected result of the game itself and      if  that  is  the  purpose  of  keeping  or  using  the      instruments, it  would be  sufficient to bring the case      within the scope of the definition. C           "It is  argued by  Mr. Pochaji  on behalf  of  the      accused that  even in  that case  it was  observed that      ’the prosecution  must establish  that the  purpose was      profit or  gain and  that that  might be done either by      showing that  the owner was charging for the use of the      instruments of  gaming or  for the  use of  the room or      place or  in any  other manner.’  The words  ’or in any      other manner,’  (which were  used there  instead of the      words appearing  at the  end  of  the  definition’  ’or      otherwise howsoever’) cannot be regarded as restricting      the profit  or gain  of the  owner or  occupier of  the      house to  profit or  gain in  a manner  ejusdem generis      with what  pre cedes  those words,  and hence  even the      hope of  making a  profit out of the gambling itself is      sufficient to satisfy the requirement of the definition      of common gaming house. It may happen that the occupier      of a  house may  allow it  to be used by the public for      gambling and he himself may take part in it in the hope      of making  a profit,  although he  may not  necessarily      make it  every time.  Such a hope is sufficient to make      the house a common gaming house and the occupier liable      for keeping such a house."      We  fully   agree  with   the  interpretation   of  the definition of  the term  "common gaming  house" occurring in section 3 of the Bombay Act as propounded in, the two Bombay authorities cited  above, as  also in the impugned judgment, that interpretation being in conformity with the unambiguous language employed  by the  legislature. The  opinion to  the contrary expressed  in Lachchi  Ram’s case  (supra)  and  in other decisions is found to be incorrect.      6. The learned counsel for the appellants concedes that if  the   interpretation  placed   on  clause  (ii)  of  the definition  by   the  impugned   judgment  be   upheld,  the conviction of the appellants in the two appeals 40 is well-founded. However, we may state that there is another good reason  for up  holding the  conviction and  that flows from the  presumption which has to be raised under section 7 of the Bombay Act which states:           "When any  instrument of gaming has been seized in      any house,  room of  place entered  under section  6 or      about the  person of  any one found therein, and in the      case of  any other  thing so  seized if  the  court  is      satisfied that  the Police  Officer  who  entered  such      house, room  or  place  had  reason  able  grounds  for      suspecting that  the thing  so seized was an instrument      of gaming,  the seizure  of such  instrument  or  thing      shall be  evidence, until  the contrary is proved, that

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    such house,  room or  place is used as a common gaming-      house and  the persons  found therein were then present      for the  purpose of  gaming, although  no’  gaming  was      actually seen  by the  Magistrate or the Police Officer      or by  any person  acting under the authority of either      of them:           Provided that  the aforesaid  presumption shall be      made, notwithstanding  any defect  in  the  warrant  or      order in  pursuance of  which the  house, room or place      was entered under section 6. if the Court considers the      defect not: to be a material one."      It is  not disputed  that instruments  of  gaming  were seized from  the premises  in question  in both the appeals. That circumstances,  according to  the  section,  "shall  be evidence, until  the contrary  is proved,  that such  house, room or  place is  used as  a  comon  gaming-house  and  the persons found  therein  were  present  for  the  purpose  of gaming, although  no gaming  was actually  seen ..  " .  The profit or  gain mentioned  in clause  (ii) of the definition and also  the other requirements of that clause are a matter of peremptory  presumption which  has to  be raised  by  the court as  soon as  the seizure of instruments of gaming from the place  in question  is proved,  as  is  the  case  here. Admittedly,  there   is  no  evidence  in  rebuttal  of  the presumption  which   must  therefore  be  raised  and  which furnishes a good basis for the conviction of the appellants.      7.  In  the  result  both  the  appeals  fail  and  are dismissed. P.B.R.                                    Appeals dismissed. 41