JUDGMENT 1. This Rule was issued calling upon the Chief Presidency Magistrate of Calcutta to show cause why the conviction of five Petitioners under sec. 45 of Act IV of 1866 and the fine imposed on them should not be set aside. The trial was in a summary form and it appears that the particulars of the offence of which these persons were accused were not stated in the form. In the police report under sec. 370, Cr. P. C., the offence complained of was stated as follows All the accused are charged with being found in a common gaming house at No. 22, Weston St, gambling for gain of money by receiving and laying unauthorized battings on race horses at 8/55 A.M. on 16.2- 37. 45. IV. 66. On behalf of the accused complaint is made that the charge is vague and defective and the accused have been seriously prejudiced. It is not alleged that there was no statement made to the accused under sec. 242 although some objection on this score was urged in this Court. It is true that no statements were recorded under sec. 242 and the only statement under sec. 342 was that the accused would file a written statement. But we find from the written statement filed by the accused that they understood that the charge against them was that they were found on the 16th February engaged in unauthorised betting on the premises of Mr. Torcato. So there is no substance in the contention that the charge was vague and defective so as to prejudice them in their defense. Presumably, although there is no record of a statement of details of the complaint under sec. 242, such a statement was made in fact, because the written statement filed by the accused shows that they were perfectly well aware of the details of the charge. 2. It must be found, if the accused are to be held guilty under that charge, first, that they were found in a common gaming house and secondly, that they were there for the purpose of betting. 2. It must be found, if the accused are to be held guilty under that charge, first, that they were found in a common gaming house and secondly, that they were there for the purpose of betting. There is no evidence that they were actually engaged in betting at the time and the only evidence that they were there for the purpose of betting is the finding of certain slips of paper, with some of them, and in the premises, on which the names of horses were entered and figures apparently indicating the amount of bets pledged on these horses. These slips of paper would not in themselves show that they were actually engaged at the time in betting or even that they were there for the purpose of betting. To find the accused guilty, therefore, they must be brought under the provisions of sec. 47 of the Act which lays down that if a man is found in a house with respect to which a search warrant has issued under the provisions of sec. 46 of the Act, and instruments of gaming are found therein, the finding of these instruments of gaming will be evidence until the contrary is made to appear that the house is a common gaming house and that the persons found therein were there for the purpose of gaming. In this case the articles found in the house which the prosecution regards as instruments of gaming are certain slips of paper on which the names of horses are entered and figures indicating that certain amounts have been wagered on the horses opposite the name of which the figures appear. There were also found a book entitled "All-India Racing Results," 1936-37, four Racing Guides of the 15th February, 1937, as well as a large number of the betting slips referred to. Some of these are dated the 15th February, 1937: Some are headed " First tote " or " Second tote ": One of them, Ex. 11, is an account with the names of horses and entries of figures under " win " and " place," below which is written " paid Rs. 100." The question then is whether these are instruments of gaming. 11, is an account with the names of horses and entries of figures under " win " and " place," below which is written " paid Rs. 100." The question then is whether these are instruments of gaming. Sec. 3 of Act IV of 1866 states that gaming includes wagering or betting, and instruments of gaming include articles used as a means or appurtenances of or for the purpose of carrying on or facilitating gaming. Such slips as were found were therefore only instruments of gaming if they were useful at that time for the purpose of betting. 3. Most of them bear no date but a few of them are dated the 15th February, 1937, and the horses named therein appear to be horses who ran in the races on the 15th of February, namely on the previous day. These particular slips are apparently a record of betting transactions which took place on the previous day, and it is very doubtful if they can be regarded as any longer useful for the purpose of carrying on or facilitating betting especially as none of them show in themselves that the accused or any of them were there for the purpose of receiving money, if any, due on the slips, nor is there any evidence that they were there for that purpose. 4. On behalf of the prosecution reference has been made to the decision in the case of M. A. Adams v. The Emperor 39 C W. N. 1114 (1935). 4. On behalf of the prosecution reference has been made to the decision in the case of M. A. Adams v. The Emperor 39 C W. N. 1114 (1935). It is true that in that case similar slips of paper were held to be instruments of gaming, but it was found in that case that they were "used for the express purpose of facilitating the betting operations which were in progress at the time of the race." In this case there is no evidence that betting operations were in progress and these slips contained records of bets which were no longer current bets, the events on which the bets had been made having already taken place, for the Inspector S. K. Brahmachari, prosecution witness No. 1 says, " all the names of horses were in the events which had happened." It is possible that if it had been proved that any of the accused were there for the purpose of receiving money shown to be clue by the slips, it might be held that the slips were appurtenances of betting, but even this evidence is wanting. I think, therefore, that it has not been shown that these slips were instruments of gaming as defined in the Act. It follows that they are not in themselves evidence (under sec. 47 of the Act) that the house in which the accused were found is a common gaming house or that they were there for the purpose of gaming. The circumstances in which they were found there might lead one to suspect that they had been engaged in illegal betting, but this does not at all necessarily follow. Apart from the provisions of sec. 47 there is not, I think, sufficient evidence to show that the premises occupied by Mr. Torcato is a common gaming house and, as I have already said, the evidence is not sufficient to show that it was such under sec. 47. Further, there is no evidence to show that the accused were actually engaged in betting at the time. An offence under sec. 45 of the Calcutta Police Act has therefore not been established against them. The rule is accordingly made absolute. The conviction and sentence are set aside. The accused are acquitted and the fines, if paid, must be refunded.