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PETITIONER: KISHAN CHANDER

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 25/01/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1965 AIR  307            1964 SCR  (1) 765

ACT: Ultra Vires-Principle of--Constitution of 1nd Arts, 13,  19, 21,--The  United State of Gwolior Indore and  Malwa  (Madhya Bharat) Gambling Act, samvat 2006 (Madhya Bharat Act No.  51 of 1949), ss. 6, 8.

HEADNOTE: 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  and  sentenced  to imprisonment.   The Sessions judge rejected  their  appeals. The High 766 Court  rejected  their revision petititions.  They  came  to this  Court by Special Leave.  The only point  urged  before this  Court  was that ss. 6 and 8 of the Gambling  Act  were ultra  wires the Constitution and against the principles  of natural justice and fundamentals of criminal jurisprudence. Held,  that ss. 6 and 8 of the Act were not ultra vires  the Constitution.    The   Act  is  not  unreasonable   in   its restrictions  upon  the fundamental rights  of  the  people. There  is nothing in the definition of gambling’ to make  it unreasonable  or  to offend against any  of  the  guaranteed rights.  The definition of a ’gaming house’ is no doubt wide and  there  is  not only a long list of  places  which  come within  the expression gaming house’ but the  term  includes any  place  which answers the rest of the  description.   In spite  of this, there is nothing unreasonable or which  does not   subserve  the  central  purpose.   The  Act   provides safeguards  against  victimization of  innocent  persons  by putting  certain checks when it provides for  the  detection and prosecution of offenders against the Act.  The power  to enter  and authorise the police to enter and  search  places believed,  to be gamin houses is given to superior  officers who   are  expected’  to  act  reasonably  and   after   due satisfaction.  Moreover,the officer who enters the  building and  seizes the articles ha-,’to satisfy the Court that  his suspicions  were based on reasonable grounds and it is  only then that the burden is shifted to the accused to prove  his

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innocence.  Though , the word used in s. 6 is  "suspecting", in  actual proof this suspicion must be dermonstrated to  be reasonably based.  Considering the fact that gambling is  an evil  which  is  rampant and gaming  houses  flourish  as  a profitable  business and detection of gambling is  extremely difficult, the law to root out gambling cannot but be in the public interest.  Such a law must of necessity provide for a special  procedure.   So  long as it is  not  arbitrary  and contains  adequate  safeguards, it  cannot  be  successfully assailed.  The Act contains sufficient safeguards, to ensure that  there is no danger to any one except to those who  are proved  to  the satisfaction of the Court to keep  a  gaming house or who can be presumed, unless the contrary is proved, to be there for the purpose of gaming.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 47  of 1961. Appeal  by special leave from the judgment and  order  dated December 14, 1960, of the Madhya Pradesh High Court (Gwalior Bench at Gwalior) in Criminal Revision No. 91/59.  767      R.   L. Kohli and C. L. Sarin, for the appellants.      I.   N. Shroff, for the respondent. 1963.  January 25.  The judgment of the Court was  delivered by HIDAYATULLAH, J.-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 2036).  Krishnachandra, 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 months’  simple imprisonment.  Krishnachandra was  convicted in  addition  under  s. 3 of the Act and  sentenced  to  one months’  .simple  imprisonment.  The sentences  in  Krishna- chandra’s case were ordered to run concurrently. 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  convicated.   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. 768 Only one point has been agrued before us and it is that s. 6 of  the Gambling Act is ultra wires 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

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definitions ins.  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  or 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               deemed to be "gaming". "Gaming house" is defined to mean- "Any house, room, tent, enclosure, space vehicle, vessel  or any place whatsover 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               or evidence of any gaming, the proceeds of any               gaming, and any winnings or prizes in                769               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, Section 3 which  creates  the  offence affecting the keeper of a gaming house provides 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.               770               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

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             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. Section  5 gives powers to certain officers to enter or  to- authorise  police  officers (not below the rank  of  a  sub- inspector) to enter and search a gaming house but the  power is exercisable only if the officer concerned "is  satisfied, upon credible information, and after such inquiry as he  may think  necessary,  that there, are good grounds  to  believe that  any  house,  room, tent,  enclosure.  space,  vehicle, vessel or place is used as a gaming house." Section 6  which is impugned in this appeal then provides as follows: -               "6.  When  any instrument of gaming  has  been               seized  in any house, room,  tent,  enclosure,               space,  vehicle,  vessel or place  entered  or               searched   under   the  provisions   of   last               preceding section, or about the person of  any               of those who are found therein and in the case               of any other thing so seized, if the Court  is               satisfied  that  the officer  who  entered  or               searched  such house, room,  tent,  enclosure,               space,   vehicle,   vessel,   or   place   had               reasonable  grounds  for suspecting  that  the               thing so seized was an                771               instrument  of  gaming, the  seizure  of  such               instrument  or thing shall be evidence,  until               the  contrary  is  made to  appear  that  such               house, tent, enclosure, space, vehicle, vessel               or  place is used as a gaming house  and  that               the  persons found therein were  then  present               for  the purpose of gaming although no  gaming               was actually seen by the Magistrate or  Police               Officer." Section  8  creates  a  special  rule  of  evidence  and  it provides:-               "8.  It  shall not be necessary, in  order  to               convict any person of any offence against  any               of the provisions of sections 3 and 4 to prove               that  any person found gaming was playing  for               any money, wager or stake." It  has  been  amply proved in the present case  that  on  a search  being made instruments of gaming were found  in  the house  and  a  presumption under s. 6  was  therefore  drawn against the persons present there. The  impugned sections are challenged under Articles 19  and 21  of the Constitution.  The former Article is said  to  be voilated because the sections unreasonably impair the  right of assembly and the right to hold and enjoy property.  It is not  contended  that  gambling in the  form  of  betting  or wagering  or as explained in the explanation to s. 2 (d)  is not an evil from which society needs to be protected.   What is  complained  of is the manner in which  the  offences  of keeping  a gaming house and gaming in a gaming house may  be proved  against the respective offenders.  It  is  contended that  this  proof largely depends upon the suspicion  of  an officer  and  the discovery on search of  innocent  articles like  playing  cards  and  dice  and  that  added  to  these

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unreasonable  provisions, the burden of proof, which  should always 772 lie on the prosecution, is reversed and the alleged offender is  required to clear himself of the alleged guilt.   It  is submitted  that  the sections are unconstitutional  as  they offend  Articles  19  and 13 of  the  Constitution.   It  is further  submitted  that in these circumstances there  is  a breach of Article 21 as well. The  argument  based on Article 21 need  not  be  separately noticed  because if the impugned provisions are found to  be constitutional,  the  curtailment of liberty  would  not  be except  according to the procedure established by  law.   So the   only  point  to  consider  is  whether  the   impugned provisions  of  the Act are so unreasonable as to  lose  the protection  of Clauses (3). (4) and (5) of Article 19.   The Act  is  a  pre-Constitution  measure and  it  can  only  be declared  void under Article 13.  The Act is not  challenged on  the  ground  that it was beyond the  competence  of  the Legislature which passed it or that it has ceased to be  law otherwise  than by the -’alleged breach of Articles  19  and 21.   Once it. is conceded that gambling is an evil, and  it is rightly so conceded here, the interests of public  order, morality or the general public requite that it be eradicated and the only question which survives is whether the law made to  do  this is unreasonable in its  restrictions  upon  the guaranteed   rights.   In  this  connection  what  must   be established  by  the appellants is that an object  which  is legitimate  in  itself has been achieved in a  manner  which amounts  to  an unreasonable curtailment of  the  guaranteed liberties. In order to find out whether the impugned provisions can  be regarded  as  unreasonable  in the  sense  explained  it  is necessary  to consider them in some detail.  We  begin  with the  definitions.  "’Gaming" is defined to include  wagering and  betting which are the commonest forms of  gambling  but the  definition leaves room for inclusion in the term  other forms which gambling might take., There is nothing in the  773 definition to make it unreasonable or to offend against  any of  the  guaranteed rights.  Next comes  the  definition  of "gaming  house".  A house becomes a gaming house  if  gaming takes place there or instruments of gaming are kept there or used for gaming.  The definition is no doubt wide and  there is  not  only a long list of places which  come  within  the expression  ’gaming house’ but the term includes  any  place whatsoever  which answers the rest of the description.   But here  again there is nothing which is unreasonable or  which does  not  subserve  the  central  purpose  "Instruments  of gaming"  are  next  defined  to  include  articles  used  or intended  to be used as a subject or means of  gaming,  also documents, registers, records, proceeds of gaming and  prize money  etc.   The word, "used or intended to be  used  as  a subject  or  means of gaming" outline the  circumstances  in which the possession of articles becomes incriminatory under the Act. Having  defined  gambling, gaming house and  instruments  of gaming, the Act provides safeguards against victimisation of innocent  persons  by  putting in  certain  checks  when  it proceeds  to  provide for the detection and  prosecution  of offenders against the Act.  The offences are the keeping  of a  gaming house (s. 3), gaming in a gaming house (s. 4)  and gaming  in places to which public have access (s.  12).   We are  not  concerned with the last.  Section- 5  confers  the powers  to  enter and authorise police to enter  and  search

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places believed to be gaming houses.  This power is given to a  District  Magistrate, a sub-divisional  magistrate  or  a police officer riot below the rank of a sub-inspector.   The officer  must  be satisfied, upon credible  information  and after such inquiry as he may think necessary that there  are good  grounds for belief that any place is used as a  gaming house  before  he makes a search.  On entry the  officer  is empowered to take the persons present there into custody and to search them and to search the 774 place and seize all things reasonably suspected to have been used  for the purpose of gaming.  Pausing here, it is  clear that  the  power  is -given to  superior  officers  who  are expected to act reasonably and after due satisfaction.   But the  matter  does  not end there.   After  the  arrests  and seizures  have been made the officer who entered t  e  place and  seized the articles has to satisfy the Court  that  his suspicions  were based on reasonable grounds And it is  only then that the burden is shifted to the accused to prove  his innocence.  Though the word used in s. 6 is "suspecting"  in actual  proof  this  suspicion must be  demonstrated  to  be reasonably   based.   The  safeguards,  thus,  are-(a)   the existence  of  credible  information,  (b)  the  seizure  of articles  suspected to be instruments of gaming  which  bear out the information on which action is taken, and (c)  proof to  the satisfaction of the Court that there are  reasonable grounds for holding that the articles seized are instruments of  gaming.  Once the house is shown to the satisfaction  of the Court to be a gaming house the law leaves any one  found in it during any gaming, to explain his presence on pain  of being presumed to be there for gaming. Considering  the  fact that gambling is an evil  and  it  is rampant, that gaming houses flourish as profitable  business and  that detection of gambling is extremely difficult,  the law  to  root  out  gambling cannot but  be  in  the  public interest.  Such a law must of necessity provide for  special procedure  but so long as it is not arbitrary  and  contains adequate safeguards it cannot be successfully assailed.   In our  opinion  the Act with which we are  concerned  contains sufficient  safeguards to ensure that there is no danger  to any  one except to those who are proved to the  satisfaction of  the Court to keep a gaming house or who can be  presumed unless the contrary be proved to be there for the purpose of gaming.  We are  775 satisfied  that the impugned provisions are  constitutional. The appeal fails and is dismissed.                                     Appeal dismissed.