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PETITIONER: BHIMRAO TRIMBAKRAO INGLE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT19/08/1986

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) RAY, B.C. (J)

CITATION:  1987 AIR  533            1986 SCR  613  1986 SCC  (4)  91        JT 1986   188  1986 SCALE  (2)352

ACT:      Bombay Prevention  of Gambling  Act, 1887-Ss.  3(ii), 5 and 7-’Common  gaming house’-What  is-Conviction for offence under s. 5-When arises.

HEADNOTE:      The appellants  were convicted under s. 5 of the Bombay Prevention of  Gambling Act  1887. Appellant  no. 6 was also convicted under s. 4 of the Act. In the appeal, the Sessions Court on  an appreciation of evidence came to the conclusion that the  prosecution had failed to establish that appellant no. 6  was deriving any profit or gain by way of charges for the use of the room of the office in which gaming was taking place and  that accordingly  it was  not  a  ’common  gaming house’ within  the meaning  of s.  3(ii), and  therefore the offence committed by appellant no. 6 would not fall under s. 4. It,  however, recorded a finding of guilt against all the appellants for  an offence  under s.  5 seeking support from s.7, which  provides for  presumptive proof  of  keeping  or gaming in  a common  gaming house. This view was affirmed by the High Court.      Allowing the appeal to this Court, ^      HELD: 1.  An offence  under s.  5 can be committed only provided the  persons concerned  were gaming or were present for the purpose of gaming in a ’common gaming house’. [615F]      2. What  was held  to be ’not’ a ’Common Gaming House’, having regard  to the  fact that  evidence  adduced  by  the prosecution was  considered unacceptable could not have been held to  be  a  common  gaming  house  by  recourse  to  the presumption under  section 7.  What is  not a ’common gaming house’ in  fact in  the light  of evidence  cannot become  a common gaming house by reason of a presumption. [615C-D]      3. The  Sessions Court  was in  error in convicting the appellants for  an offence  under Section  5  which  can  be committed only provided 614 the persons  concerned were  gaming or  were present for the purpose of gaming in a ’common gaming house’. The High Court was in error in failing to appreciate the import of the said finding  recorded   by  the   Court  on  the  basis  of  the

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appreciation of evidence. [615F-G]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 28 of 1977      From the  Judgment and  Order dated  16.12.1976 of  the Bombay High Court in Criminal Rev. Appln. No. 79 of 1976.      A.K. Sanghi for the Appellants.      A.M. Khanwilkar and A.S. Bhasme for the Respondent.      The Judgment of the Court was delivered by      THAKKAR, J.  Whether or  not it  was a  ’common  gaming house’ is the question. Not is the answer.      The appellants  were convicted  for  an  offence  under Section 5  of the  Bombay Prevention  of Gambling  Act, 1887 (hereinafter called ’the Act’) as it stood in 1972 for being found in  a ’common  gaming house’  where they had assembled for  the  purpose  of  gaming.  Appellant  no.  6  was  also convicted for  an offence  under Section  4 of  the Act, for using a  room as  a common  gaming house. The Sessions Court exercising appellate  jurisdiction came  to  the  conclusion that the  gaming was  taking  place  in  an  office  of  the (Agricultural) Soil  Conservation Department  and  that  the room in  which the gaming was taking place was not a ’common gaming house’  within the  meaning of  Section 3(ii)2 of the Act. On  reaching the  conclusion that  it was not a ’common gaming house’,  the Sessions  Court came  to the  conclusion that the offence committed by Appellant No. 6 would not fall under Section 4 of the Act.      The Sessions  Court, however,  recorded  a  finding  of guilt against ___________________________________________________________ 1.   As defined by section 3(ii) of the Act. 2.    Section  3 (ii):  "In this  Act, ’common gaming house’      means: 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  persons owning,  occupying,  using  or      keeping such  house, room or place by way of charge for      the use  of such house, room or place or instruments or      otherwise howsoever." 615 the appellants  including Appellant  No. 6  for  an  offence under Section  5 of the Act seeking support from Section 7/1 of the  Act which  provides for presumptive proof of keeping or gaming in a common gaming house.      Even though  on an  appreciation of evidence adduced by the prosecution  the Sessions  Court came  to the conclusion that the  prosecution had failed to establish that Appellant No. 6  was deriving any profit or gain by way of charges for the use  of the room in question and that accordingly it was not a ’common gaming house’, the Court strangely enough held that it  was a  common gaming  house within  the meaning  of Section 3(ii)  of the Act by reason of the presumption under Section 7  of the  Act. What  was held to be ’not’ a ’Common Gaming House’,  having regard  to  the  fact  that  evidence adduced by the prosecution was considered unacceptable could not have  been held  to be a common gaming house by recourse to the  presumption under  section 7.  The presumption  is a rebuttable presumption which was not required to be rebutted by the  defence inasmuch  as the  proseuction  evidence  was discredited and  rejected and the presumption stood rebutted on that account. What is not a ’common gaming house’ in fact in the light of evidence cannot become a common gaming house

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by reason  of a  presumption under  section 7. The reason is neither far  to seek  nor obsecure.  What the prosecution is required to establish by recourse to the presumption is that the room  is a  ’common gaming  house’  as  defined  in  the dictionary of Section 3(ii) that is to say that the occupier is collecting charges for the use of the room. When evidence in adduced  and the prosecution fails to establish that such charges are in fact collected, how can the Court hold in the face of  its own  finding that  such charges  are collected, that even  so it  is a  ’common gaming house’ because of the presumption? The  Sessions Court  was in error in convicting the appellants  for an  offence under Section 5 which can be committed only provided the persons concerned were gaming or were present  for the  purpose of gaming in a ’common gaming house’. The High Court was in error in failing to appreciate the import of the said 1.   Section 7:  When any  instruments of  gaming  has  been      seized in  any  house,  room  or  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  reasonable grounds for      suspecting that  the things so seized was an instrument      of gaming,  the seizure  of such  instrument  or  thing      shall be  evidence, until  the contrary is proved, that      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. 616 finding  recorded   by  the   Court  on  the  basis  of  the appreciation of  evidence that  in fact it was not a ’common gaming house’  as found by the Sessions Court, and confirmed by the High Court. None of the appellants could therefore be convicted for an offence under Section 5/1      The  appeal   is,  therefore,  allowed.  The  order  of conviction and sentence is set aside. A.P.J.                                       Appeal allowed. 1.   Section 5: "Whoever is found in any common 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 ...." 617