Full Judgment Text
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PETITIONER:
BHIMRAO TRIMBAKRAO INGLE
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT19/08/1986
BENCH:
THAKKAR, M.P. (J)
BENCH:
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
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appreciation of evidence. [615F-G]
JUDGMENT:
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
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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
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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.
1. Section 5: "Whoever is found in any common 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 ...."
617