http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: SINDHI LOHANA CHAITHRAM

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT: 31/03/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SHELAT, J.M.

CITATION:  1967 AIR 1532            1967 SCR  (3) 351  CITATOR INFO :  R          1976 SC1697  (18)

ACT: Bombay Prevention of Gambling Act, 1887, s. 6(1) (i) and  s. 7.Authority  to  Deputy Superintendent of  Police  to  issue search warrant to sub-inspector-Notification conferring such authority   whether  must mentnion Deputy Superintendent  by name -Presumption under s. 7 when arises.

HEADNOTE: Under  s.(1)  (i)  of  the  Bombay  Prevention  of  Gambling Act,1887,a  search  warrant  can  be  issued  by  a   Deputy Superintendent  of  Police  especially  empowered  in   this behalf.   By  a  notification dated  January  22,  1955  the Saurashtra Government empowered specially certain  Assistant Superintendents   and  Deputy  Superintendents   of   Police Porbandar  Division,  Porbandar, to authorise  by  issue  of special warrants in each case a police officer not below the rank  of  sub-inspector of police to do the  various  things necessary  in order to raid a house when the police  officer suspected  gaming to be carried on and which house  room  or place was suspected as being used as a common gaming  house. The  appellant’s  house  was raided by  a  sub-inspector  of police  and  on  the basis  of  incriminating  evidence  the appellant  and six others were charged under ss. 4 and 6  of the  Act.   At  the trial the accused  contended  that  shri Pandya the Deputy Superintendent of Porbandar who issued the search  warrant  was not authorised to do so  and  accepting their  plea  the magistrate acquired them.  The  High  Court however  took the opposite view and convicted  the  accused. The appellant came to this Court by special leave. HELD : (i) When a power is conferred on a person by name  or by virtue of his office the individual designated by name or is the holder of the office for the time being is  empowered specially.   Judged  by  this test  the  notification  dated January  22, 1955 specially empowered Shri Pandya holder  of the office of the Deputy Superintendent of Police, Porbandar to issue the search warrant under s. 6. [353F-G] Emperor v. Udho and Ors., A.I.R. 1943 Sind. 107, Emperor  v. Savlaram  Kashinath  Joshi,49  B.L.R. 798,  A1uga  Pilli  v. Emperor,  A.I.R.  1924  Mad. 256, Mahomad Kasim  &  Anr.  v. Emperor, A.I.R. 1915 Mad. 1159, Slate of Mysore v. Kashambi,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

(1963)  2  Cr.  L.J. 226, State v. Judhabir  Chetri,  A.I.R. 1953 Assam 35, K. N. Vijayan v. v.  State, I.L.R. 1953 Trav. Cochin  514  and Polublha Vajubha & Tapu Rudu,  A.I.R.  1956 Saurashtra 73, referred to. (ii) The seizure of instruments of gaming in the appellant’s house  under s. 6 raises i presumption under s. 7  that  the house  was  used as a common gaming house  and  the  persons found  therein were then present for the purpose of  gaming. In,  applying this artificial presumption the  court  should act with circumspection.  playing cards can be kept and used for  innocent pastime.  The presumption can be  rebuffed  if from  the prosecution evidence itself it, is  apparent  that there was it reasonable probability of the playing cards not being kept or used as means of gaining or for profit or gain of  The  occupier  of the house. In  the  present  else  the appellant  could  not successfully  rebut  the  presumption. [354E-H] 352 No  rejudice  had  been  caused  to  the  appellant  by  the production  of the notiphication dated January 22, 1955  for the first time at the appellate stage, [355A]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 13 of 1964. Appeal  by special leave from the judgment and  order  dated August 16, 1963 of the Gujarat High Court in Criminal Appeal No. 154 of 1962. Daniel A. Latifi and K. K. Sinha, for the appellant.____ Hans Ra Khanna and R. N. Sachthey for R. H. Dhebar, for  the respondent. The Judgment of the Court was delivered by Bachawat, J. The appellant and six other persons were charg- ed  under ss. 4 and 5 of the Bombay Prevention  of  Gambling Act 1887.  The sub-inspector of police Shri Anjaria received information  that the appellant was keeping a common  gaming house.  He obtained a special search warrant from the Deputy Superintendent of Police, Porbandar, Shri S. M. Pandya,  and raided the appellant’s house in Bantwa on June 4, 1961 at  1 p.m.  The raiding arty found the door leadin- to  the  upper floor  closed.  The inpmates pressed against the  door  from the inside and did not open it until a blacksmith broke open the  latch.   Shri Anjaria seized torn and burnt  pieces  of playing  cards lying on the floor of the central  room,  two packs  of cards from a wall cabinet, some burnt cards  lying on the floor and in the folds of a bed in the drawing  room, four  jokers  and three packs of cards from  trunks  in  the kitchen, some cash, burnt cigarette ends, bidis and  matches and  empty cigarette cases.  All the accused were  found  in the upper floor.  The appellant as the occupant of the house was charged under s. 4 of the Act and the other six  accused were charged under s. 5 of the Act.  The learned  magistrate refused to raise a presumption under s. 7 of the Act on  the ground that Shri Pandya was not specially empowered by  name to  issue a search warrant.  He acquitted all  the  accused. On  appeal,  the  High Court held that Shri  Pandya  as  the deputy  superintendent  of police, Porbandar  was  specially empowered  to issue the search warrant and  the  prosecution was  entitled to the benefit of the presumption under s.  7. The High Court convicted the appellant of the offence  under s. 4 of the Act and sentenced him to simple imprisonment for one  month.  The High Court convicted the other six  accused under.,,.  5 of the Act and sentenced each of them to pay  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

fine  of  Rs. 200, in default simple  imprisonment  for  one month.   The  present appeal was filed by the  appellant  by special leave. A  search warrant under s. 6(1)(i) of the Act can be  issued by  a "Deputy Superintendent of Police especially  empowered by the 353. State  Government in this behaff".  By a notification  dated January  22,  1955,  the  Saurashtra  government   empowered specially  certain  assistant  superintendents  and   deputy superintendents    of    police   including    the    deputy superintendent of police, Porbandar Division, Porbandar,  to authorise by issue of special warrants in each case a police officer  not below the rank of a sub-inspector of police  to do  the  various things necessary in order to raid  a  house where  the police officer suspected gaming to be carried  on and  which house, room or place was suspected as being  used as  a  common  gaming house.  The  magistrate  relying  upon Emperor  v.  Udho and others(1), held that under s.  6,  the officer must be specially empowered by name.  The High Court relying  on  Emperor v. Savlaram Kashinath Joshi,  (2)  held that an officer may be specially empowered under s. 6 either by  name or, in virtue of his office.  It is because of  the conflict  of  opinion  between  the  Sind  and  the   Bombay decisions that special leave was granted in this case. Section 15 of the Bombay General Clauses Act 1904 shows that a person may be appointed to execute any function either  by name  or  by virtue of office.  A person  may  therefore  be empowered  by  name  or by virtue of his  office  of  deputy superintendent of police to issue a special search  warrant. Sec.  6  of the Bombay Prevention of Gambling  Act  requires that the deputy superintendent of police must be  "specially empowered"  to  issue the warrant. In Emperor  v.  Udho  and others(1),   the   expression  "specially   empowered"   was interpreted  to mean specially empowered by name and not  by virtue  of his office, and an authorization of  "the  deputy superintendent of police, Rohri" was said to be insufficient for  the purposes of s. 6. This decision does not  lay  down the  correct test.  A person may be specially empowered  not only  by name but also by virtue of his office.  In  Emperor v.  Savlaram Kashinath Joshi(2) it was rightly held  that  a notification authorizing the deputy superintendent of police of  the  Poona  city to issue a search warrant  under  s.  6 specially  empowered the holder of that office by virtue  of his office to issue the warrant.  We think that where  power is conferred on a person by name or by virtue of his office, the  individual designated by name or as the holder  of  the office for the time being is empowered specially.  Judged by this   test,  the  notification  dated  January  22,   1955, specially empowered Shri Pandya as the holder of the  office of the deputy superintendent of police, Porbandar, to  issue the search warrant under s. 6. For the meaning of the expression "specially empowered"  re- ference  is  often made to s. 9(1) of the Code  of  Criminal Procedure  which provides "in conferring powers  under  this Code,  the  State Government may by order,  empower  persons specially by name or (1) A.I.R. 1943 Sind 107. (2) 49 B.L.R. 798. 354 in virtue of their office or classes of officials  generally by  their official titles".  In Aluga Pillai v.  Emperor1’), it  was  rightly held that an authorization  of  the  second class magistrate of Thirumangalam to try certain cases was a special  empowering  of the person holding  that  office  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

virtue of his office within the meaning of s. 39(1). On the question whether a notification empowering all magis- trates  of a certain class to try certain cases can be  said to  empower specially every magistrate of that class to  try those  cases,  there is a conflict of opinion,  see  Mahomad Kasim  and  another  v.  Emperor(2),  State  of  Mysore   v. Kashambi(3).   On the further question whether a  magistrate should  be regarded as an office and not as an official  for ’the  purposes  of  s. 3 9 ( 1 ) of  the  Code  of  Criminal Procedure, there is a sharp conflict of opinion, see.  State v.  Judhabir-  Chetri(4), K. N. Vijayan v. State ( 5  )  and Pollubha Vajudha and Anr-. v.  Tapu Ruda(6).  We do not  ex- press  any  opinion  on those questions, as it  is  not  the practice of this Court to express opinion on questions which do not arise for decision.  For the purpose of this case, it is  sufficient to hold that a notification conferring  power on the deputy superintendent of police of Porbandar to issue a  search  warrant  specially empowers the  holder  of  that office by virtue of his office to issue the warrant. We hold that Shri Pandya as the holder of the office of  the deputy  superintendent  of police, Porbandar  was  specially empowered  under s. 6 of the Bombay Prevention  of  Gambling Act  by the notification of the Saurashtra government  dated January  22,  1955.  It is conceded  that  the  notification continued to be in force after the merger of Saurashtra with the  State of Bombay.  The seizure of instruments of  gaming in  the  appellant’s  house  entered under  s.  6  raises  a presumption  under s. 7 that the house was used as a  common gaming house and the persons found therein were then present for the purpose of gaming.  In applying this artificial pre- sumption the Court should act with circumspection.   Playing cards  may  be  kept and used for  innocent  pastimes.   The presumption can be rebutted if from the prosecution evidence itself   it  is  apparent  that  there  was   a   reasonable probability  of the playing cards not being kept or used  is means of gaining or for the profit or gain of the  occupier- of the house.  In the present case, the appellant could  not successfully  rebut the presumption.  The resistance to  the entry of the sub inspector and the attempt to burn,  destroy and  conceal  the playing cards fortified  the  presumption. The  explanation that the appellant had invited friends  and relatives  on  the occasion of his son’s betrothal  was  not convincing.   We  do  not find  any  compelling  reason  for interfering with the findings of fact by the High      (1) A.I.R. 1924 Mad. 256.     (2)A.I.R, 1915 Mad. 1159.      (3) [1963](2) Cr.L. J. 226.   (4) A.I.R. 1953 Assam 35.      (5) [1953] I.L.R. Trav.-Co 514      (6) A.I.R 1956 Saurashtra 73. 355 No  prejudice was caused to the appellant by the  production of  the  notification dated January 22, 1955 for  the  first time  at the appellate stage.  His contention in  the  trial court  was that such a notification was not  sufficient  for raising  the presumption under s. 7. This argument  was  not tenable.   He  had  ample  opportunity  for  rebutting   the presumption  arising  under s. 7. Nor did he  ask  the  High Court to give him any further opportunity for this  purpose. Counsel sought to argue that the search warrant was  invalid as it did not ex-facie set out the authority under which  it was  issued.   The point was not taken either  in  the  High Court  or  in  the special  leave  petition.   We  therefore indicated  that we will not allow this point to  be  raised. The High Court rightly convicted the appellant under s. 4 of the Act. In the result, the appeal is dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

G.C.                                 Appeal dismissed. 356