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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: JAGANBHAI BHAGWANBHAI

DATE OF JUDGMENT: 16/02/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K.

CITATION:  1966 AIR 1633            1966 SCR  (3) 623

ACT: Bombay  Prevention of Gambling Act, 1887 (Bom. 4  of  1887), ss.3 &7-Necessity of expert to prove articles seized whether "instruments of gaining"-Evidence of officer to whom warrant issued--Corroboration if necessary.

HEADNOTE: The  respondent was charged under ss. 4 and 5 of the  Bombay Prevention  of Gambling Act, on the allegation that  be  was found  accepting  bets  on American futures,  and  on  being searched  currency notes and two -slips, on  which  American Futures  wore recorded, were found.  The  trial,  Magistrate acquitted the respondent, which was confirmed, on appeal, by the High Court.  In appeal to this Court the appellant-State contended that it was not necessary to examine an expert  to corroborate  the evidence of the  prosecuting  sub-Inspector that  the articles seized were "instruments of  gaming"  and that  the  evidence  of the Police  Inspector  to  whom  the warrant  was  issued under s. 6 of the Act did  not  require corroboration, in each and -.very case. HELD : The contentions are well founded and must be accepted as correct. There  is  nothing in the Act to suggest that  in  order  to prove  that the articles seized are "instruments of  gamine’ it  is the duty of the prosecution to examine an  expert  in every case.  It is open to the prosecution to prove that the articles seized are instruments of gamiag by proper evidence and it is not necessary to examine an expert for the purpose in  each  and every case. It  is  also not proper to make a  distinction  between  the evidence  of  an  officer who makes a  complaint  under  the proviso to s. 6 of the Act and to whom a warrant issued  for search  and  the  evidence of a person  to  whom  a  warrant is issued but who makes no such complaint under the proviso. The  question as to whether the evidence of the  person  who executes  the warrant requires corroboration depends on  the facts   and  circumstances  of  each  case  and   no   legal distinction,  can  be  made merely because  the  person  who executes the warrant happens to be the person who makes  the complaint  under the proviso to s. 6 of the Act to the  Com- missioner of Police or to the Magistrate. [616 A-C]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No . 167 of 1964. Appeal  from the judgment and order November 4, 1963 of  the Gujarat High Court in Criminal Appeal No. 734 of 1962. G.   S.  Patwardhan, R. N. Sachthey and B.R.G.K. Achar,  for the appellant. The respondent did not appear. 614 The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda- bad  dated  November 4, 1963 in Criminal Appeal No.  734  of 1962. The  respondent  was charged in the Court  of  the  Judicial Magistrate  First  Class, Bulsar under ss. 4 and  5  of  the Bombay  Prevention of Gambling Act, 1887 (Bombay Act  IV  of 1887),  hereinafter  called  the ’Act’.   The  case  of  the prosecution was that on January 31, 1962 at about 9 p.m. the respondent was found accepting bets on American futures.  On being searched in the presence of panchas currency notes  of Rs.  119/-  and two slips on which  Ameri-can  futures  were recorded  were found.  The trying Magistrate, however,  held that  slips  were not "instruments of  gaming"  within  ,the meaning  of  s. 7 of the Act.  The Magistrate was  also  not satisfied that the police officer who carried out the search and  .seized the articles had reasonable grounds to  believe that  the  slips  and  other  articles  recovered  from  the respondent were instruments of gaming.  The Magistrate  held that  the  presumption under s. 7 of the Act  could  not  be raised.   The  respondent was, therefore, acquitted  of  the charge.  Against the order of acquittal the State of Gujarat preferred  an  appeal  to  the  High  Court  of  Gujarat  at Ahmedabad  in Criminal Appeal No. 734 of 1962.   The  appeal was dismissed by Raju, J. on November 4, 1963. In support of this appeal Mr. Patwardhan submitted that  the High  Court was in error in holding that it is necessary  to examine  an  expert  to  corroborate  the  evidence  of  the prosecuting  Sub-Inspector  that the  articles  seized  were "instruments  of gaming".  It was also contended by  Counsel that  the High Court was not right in taking the  view  that the evidence of the Police Inspector to whom the warrant was issued under s. 6 of the Act required corroboration in  each and every case.  In our opinion, both the contentions of Mr. Patwardhan are well-founded and must be Section   3  of the Act defines the expression  "instruments of gaming" as  including 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 money or ,otherwise distributed or intended to  be distributed  in respect of ,any gaming.  Section 6  provides for  entry and search by police officers in  gaming  houses. Section 6(1) states: "6. (1) It shall be lawful for a Police Officer- (i)  in any area for which a Commissioner of Police has been appointed  not below the rank of a Sub-Inspector and  either empowered by general order in writing or 615 authorized  in  each case by special warrant issued  by  the Commissioner of Police, and (ii) elsewhere  not  below the rank of  a  Sub-Inspector  of Police authorised by special warrant issued in each case  by

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a  District Magistrate or Sub-Divisional Magistrate or by  a Taluka   Magistrate   specially  empowered  by   the   State Government  in this behalf or by a Superintendent of  Police or  by  an  Assistant or  Deputy  Superintendent  of  Police especially empowered by the State Government in this behalf,   and (iii)     without prejudice to the provision in clause (ii)  above, in     such other area as the State Government  may, by  notification  in the Official Gazette, specify  in  this behalf, not below the rank of a Sub-Inspector and  empowered by   general  order  in  writing  issued  by  the   District Magistrate. (a)  to enter, with the assistance of such persons as may be found  necessary,  by  night or by day,  and  by  force,  if necessary,  any house, room or place which he has reason  to suspect is used as a common gaming-house. (b)  to search all parts of the house, room, or place  which he  shall  have  so entered, when he shall  have  reason  to suspect that any instuments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not, (c)  to take into custody and bring before a Magistrate  all such persons, (d)  to  seize all things which are reasonably suspected  to have  been  used or intended to be used for the  purpose  of gaming, and which are found therein: Section 7 of the Act relates to presumptive proof of keeping or  gaming  in common gaming-house.  Section 7  provides  as follows: "7.  When  any instrument of gaming has been seized  in  any house,  room or place entered under section 6 or  about  the person of anyone 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 thing 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               616 by  the  Magistrate or the Police officer or by  any  person acting under the authority of either of them: There  is  nothing in the Act to suggest that  in  order  to prove  that the articles seized are "instruments of  gaming" it  is the duty of the prosecution to examine an  expert  in every case.  It is open to the prosecution to prove that the articles seized are instruments of gaming by proper evidence and  it  is,  not necessary to examine  an  expert  for  the purpose  in each and every case.  It is also not  proper  to make  a distinction between the evidence of an  officer  who makes  a complaint under the proviso to s. 6 of the Act  and to whom a warrant is issued for search and the evidence of a person  to  whom a warrant is issued but who makes  no  such complaint under the proviso.  The question as to whether the evidence  of  the person who executes the  warrant  requires corroboration depends on the facts and circumstances of each case and no legal distinction can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso to s. 6 of the Act  to the Commissioner of Police or to the Magistrate. We  do not, however, propose to interfere with the order  of acquittal in this case, because the offence is petty and the offence  was committed several years back.   We  accordingly dismiss the appeal.

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Appeal dismissed. 617