Bhimrao Trimbakrao Ingle Vs. State of
Maharashtra [1986] INSC 174 (19 August 1986)
THAKKAR, M.P. (J) 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 appreciation of evidence. [615F-G]
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 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.
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