Full Judgment Text
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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,
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(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
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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
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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.
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G.C. Appeal dismissed.
356