Kishan Chander Vs. State of Madhya
Pradesh  INSC 15 (25 January 1963)
25/01/1963 HIDAYATULLAH, M.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1965 AIR 307 1964 SCR (1) 765
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.
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
petitions. 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
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 sub serve 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 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
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
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 argued 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 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 what
so ever 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 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
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
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 sub
serve 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 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 anyone 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.