JUDGMENT Lodge, J. - This is a Reference by the Sessions Judge of Howrah under the provisions of sec. 438 of the Code of Criminal Procedure. Certain persons were placed on their trial on charges under sees. 3 and 4 of the Public Gambling Act (Act II of 1867). They were found guilty. One of the accused was sentenced to pay a fine of Rs. 5O under sees. 3 and 4 of the Act and the remaining accused were each sentenced to pay a fine of Rs. 25 under sec. 4 of the Public Gambling Act. The learned Sessions Judge has recommended that the convictions and sentences be set aside on the ground that there was no evidence to show that the building in question was used or kept as a common gaming house. 2. The evidence on record shows that a police officer obtained a search warrant from a Magistrate and in execution of that search warrant searched the premises, found the accused on the premises, found certain slips of paper with numbers on them and found money. 3. The prosecution case was that the pieces of paper were instruments of gambling and under sec. 6 of the Gambling Act the presumption was that the place was used as a common gaming house. The learned Sessions Judge has recommended that the convictions and sentences be set aside. The learned Sessions Judge has observed that there was no evidence to show that the authority which issued the warrant did so upon credible information and having reason to believe that the house, walled enclosure or place, was used as a common gaming house. The learned Sessions Judge, therefore, held that as it was not proved that the warrant was properly issued under sec. 5 of the Public Gambling Act, there was no room for the presumption to be drawn under sec. 6 of the Gambling Act. 4. I am unable to accept this view. The evidence on record is sufficient to show that a police officer made a report to a Magistrate. The Magistrate issued a warrant under sec. 5 of the Gambling Act. The issue of a warrant under sec. 5 of the Gambling Act has been held to be a judicial Act, and under the provisions of sec. 114 of the Indian Evidence Act judicial acts may be presumed to have been regularly performed. The Magistrate issued a warrant under sec. 5 of the Gambling Act. The issue of a warrant under sec. 5 of the Gambling Act has been held to be a judicial Act, and under the provisions of sec. 114 of the Indian Evidence Act judicial acts may be presumed to have been regularly performed. There was, therefore, the initial presumption that the Magistrate who issued the warrant under sec. 5 of the Public Gambling Act, did so complying with the terms of the section. Of course it was open to the defence to show that the terms of the section had not been complied with and that the Magistrate had not in fact performed his duty regularly. 5. In this case there was no evidence whatever on record to show that the Magistrate had not performed his duties regularly. Therefore, in my opinion under sec. 114 of the Evidence Act, the trying Magistrate was entitled to presume that the warrant had been duly issued under sec. 5, and that being the case, the presumption set out in sec. 6 of the Public Gambling Act applied and there was material on which the Magistrate could convict the accused persons. 6. The learned Sessions Judge in his Letter of Reference seems to have thought from an entry in the search list that the search was a search under the provisions of sees. 103 and 105 of the Code of Criminal Procedure and therefore not a search under the provisions of sec. 5 of the Public Gambling Act. In my opinion, the provisions of sees. 103 and 105 of the Code of Criminal Procedure are merely provisions relating to the manner in which the search was conducted. They do not indicate the authority under which the search was conducted. In this case there can be no doubt whatever that the authority to conduct the search was under sec. 5 of the Gambling Act. The sentences in this case are not excessive. In the result I see no reason to interfere and I order that the Reference be rejected.