JUDGMENT D.N. Roy, J. - Mahabir Prasad applicant has been convicted u/s 3 of the Public Gambling Act (No. III of 1867) for keeping a common gaming house and Misri Lal, Kapoor Chand, Ram Bharosey and Ram Dularey alias Parshoo applicants have been convicted u/s 4 of that Act for having been found in that gaming house for the purpose of gaming. The trial was a summary trial. Against their conviction and sentence they preferred a revision, but it was dismissed by the learned Sessions Judge. They have come up in revision to this Court. 2. Mr. Darbari, who has appeared on behalf of the Petitioners, has addressed me at length and the main grounds of his contention are set forth in the application for revision. The learned Counsel contends that according to the order promulgated by the local Government u/s 5 of the Act the warrant could be executed only by a police officer in charge of a police station not below the rank of Sub-Inspector, that in the present case the warrant under which the search took place was given to the station officer of the police station but, since he endorsed it in favour of his second officer who executed it and took the search, the execution of the warrant was illegal and consequently the fact of cards and money and ml having been found on search did not constitute evidence against the Petitioners as contemplated by Section 6 of the Public Gambling Act. 3. Learned Counsel for the State, on the other hand, whilst conceding that the endorsement of the warrant by the station officer of the police station to the second officer was an irregularity, contends on the authority of the ruling in Empress v. Musa and Ors. 1884 A.W.N. 59, which was followed and approved of by a Division Bench of this Court in Empress v. Hardeo Das 1884 A.W.N. 285, that the provisions of Section 517 of the Code of Criminal Procedure render an irregularity ineffective as it has occasioned no failure of justice. 1884 A.W.N. 59, which was followed and approved of by a Division Bench of this Court in Empress v. Hardeo Das 1884 A.W.N. 285, that the provisions of Section 517 of the Code of Criminal Procedure render an irregularity ineffective as it has occasioned no failure of justice. He further contends that even, if the provisions of Section 6 of the Public Gambling Act be held inapplicable by reason of the irregularity in issuing the warrant to the second officer, there is sufficient evidence to support the conviction, and that the witnesses who deposed to having seen these persons gambling and Mahabir Prasad the occupier of the house taking nal, could be acted upon in registering the conviction of the applicants. 4. Having considered the terms of Section 5 of the Public Gambling Act and the order of the Local Govt. in Notification No. 2195/ VI-349-1909 of 1910, published in the UP Gazette Part I dated 18-6-1910 at page 578 as to the rank of officers competent to execute warrants under that section. I am of opinion that the issue of the search warrant with the endorsement of the search warrant to the second officer of that police station was an irregularity which renders Section 6 of the Act inapplicable to the present case. The terms of the section clearly shows that the Legislature has attached importance to the rank of the officer who is competent to execute the warrant, and no warrant can be issued to any officer of police not below such rank as the State Government shall appoint in that behalf. The Notification aforesaid clearly laid down that the State Government u/s 5 of the Public Gambling Act appoint "Inspectors of police and officers in charge of police stations not below the rank of sub-inspector" as the officers who may be authorised to exercise the power described in that section. Under that Notification a second officer who is not in charge of a police station was not authorised to exercise the power described in Section 5. There can therefore be no doubt that the warrant was wrongly endorsed to the second officer and executed by him. 5. My attention has been drawn to three decisions of this Court, the first in Mahadeo Vs. Emperor, AIR 1920 All 150 , the other in Emperor v. Kashi Nath ILR 30 All. 60, and the third in Hannu Vs. There can therefore be no doubt that the warrant was wrongly endorsed to the second officer and executed by him. 5. My attention has been drawn to three decisions of this Court, the first in Mahadeo Vs. Emperor, AIR 1920 All 150 , the other in Emperor v. Kashi Nath ILR 30 All. 60, and the third in Hannu Vs. The State, AIR 1955 All 231 . The last mentioned decision followed the earlier two decisions cited above and it disapproved of a decision of the Lahore High Court in Kundan Lal v. Emp. AIR 1948 Lah. 8 which has been relied upon on behalf of the Petitioners. In these three decisions of this Court the Notification which was made by the State Govt. u/s 5 of the Public Gambling Act was not specifically considered. In Emp. v. Kashi Nath ILR 30 All. 60 it was laid down that warrants issued under Act No. III of 1867 are governed by those provisions of the Code of Criminal Procedure which provide for the issue and execution of warrants in general; that there is therefore no objection to the officer to whom such a warrant is originally issued endorsing it to another officer, provided that the latter is an officer to whom such warrant could be legally issued in the first instance. The words "provided that the latter is an officer to whom such warrant could be legally issued in the first instance" in his decision are important. In the present case the second officer was not an officer to whom such warrant could be legally issued in the first instance. Consequently the decision in Emperor v. Kashi Nath ILR 30 All. 60 does not go to support the view that where, as in the pre sent case, the station Officer endorses the warrant in favour of his second officer the warrant could be e cecuted by him. 6. In Mahadeo Vs. Emperor, AIR 1920 All 150 the Notification u/s 5 of the Act was not brought into question or prominence. The same appears to be the case in Hannu Vs. 6. In Mahadeo Vs. Emperor, AIR 1920 All 150 the Notification u/s 5 of the Act was not brought into question or prominence. The same appears to be the case in Hannu Vs. The State, AIR 1955 All 231 , and this case cannot be taken as a decision for the broad proposition that, irrespective of the Notification issued by the state Government u/s 5 of the Act, a warrant issued by a Magistrate to a station officer can be endorsed by the Station Officer to his second officer for execution, although the second officer was not an officer who was competent to execute the warrant u/s 5. 7. The matter which arises for decision in the present case seems to me to be completely covered by the decision in Empress v. Musa and Ors. 1884 A.W.N. 59. and also by the decision in Empress v. Hardeo Das 1884 A.W.N. 285. The provisions of Section 6 of the Public Gambling Act constitute a special rule of evidence as to the onus probanda in such cases; and, although with reference to the general terms of Section 114 of the Evidence Act I am not prepared to hold that the former section has seriously altered the ordinary rules of evidence as to presumptions or burden of proof. I am of opinion that the provisions of the section must not be held strictly applicable to cases in which search is not made by a duly authorised officer under the provisions of Section 5. The finding of cards, money, and a tin containing nal money are declared by the section to be "evidence until the contrary is made to appear, that such house, etc. is used as a common gaming house." That such things when found in a house suspected of being a common gaming house would be "evidence" is obvious and scarcely needed special legislation, but the context of the section clearly shows that the word is used in the sense of "proof" and not in the sense of evidence which falls short of proof. The rule contained in Section 6 thus interpreted appears to give exceptional weight to the results of a search made under the preceding section; and it is only in this sense that the section can be regarded as an especial rule of evidence. The rule contained in Section 6 thus interpreted appears to give exceptional weight to the results of a search made under the preceding section; and it is only in this sense that the section can be regarded as an especial rule of evidence. In other words, it renders imperative a presumption which has always been regarded as permissible by the rules of evidence. 8. Such being the view of the effect of Sections 5 and 6 of the Public Gambling Act as observed by the Division Bench of this Court in 1884 AWN 5, the question arises whether independently of the presumption arising u/s 6 of the Act the evidence which is adduced in a case of the present nature can be acted upon in order to convict the applicants Under Sections 3 and 4. The rules contained in Sections 5 and 6 of the Act appear to be in a penal statute which must be strictly interpreted, and I cannot hold that they would be applicable to cases in which all the essential conditions provided by the law have not been duly observed. In the present case the warrant was issued to the Station Officer who was authorised under law to execute it. The search was conducted by the second officer who could not be authorised under the law to make any such search and who was incompetent to execute the warrant. To apply the provisions of Section 6 so far as they are exceptional to the present case, would be to apply an especial rule of law without the existence of essential conditions precedent to its applicability. I am fortified in this view by the ruling in 1884 AWN 5, which followed a ruling of the Calcutta High Court in Sreram Chandra Lerkan v. Bipendass ILR IV Cal 710. 9. Disregarding therefore the especial rule contained in Section 6 of the Public Gambling Act we have to consider whether the irregularity in issuing the warrant vitiates the conviction and renders all the evidence taken in the case absolutely nugatory. 9. Disregarding therefore the especial rule contained in Section 6 of the Public Gambling Act we have to consider whether the irregularity in issuing the warrant vitiates the conviction and renders all the evidence taken in the case absolutely nugatory. Learned Counsel for the Petitioners contends that the fact of the cards having been found, and the applicants having also been found playing cards, and the fact that money was found on their person, and money was also found in a tin which was there by the Police Officer not duly authorised to make such a search, does not constitute them any evidence against the Petitioners. An exactly similar contention was raised in 1884 AWN 285, and was repelled. It was held that whilst the special rule contained in Section 6 is in its entirety inapplicable to the facts of the present case, it could not be held that there is anything in Section 6 to render the results of a search conducted under an irregularly issued warrant inadmissible in evidence. It was further held that if there is sufficient evidence to sustain the conviction irrespective of the special rule contained in Section 6, the conviction is proper. There is nothing in the testimony of the witnesses for the prosecution to render their evidence untrustworthy, and I cannot therefore hold that the mere irregularity in issuing the warrant prejudiced the applicants or occasioned any failure of justice within the meaning of Section 337 of the Code of Criminal Procedure. I may add that the opinion expressed by me in this case is in accord with the ratio decidendi adopted by the Bombay High Court in Emperor v. Abasbhai Abdulhussein 28 Bom. L.R. 272. 10. It has been contended on behalf of the applicants that one of the search witnesses came from a far off place and, therefore, there was no compliance with Section 103 of the Code of Criminal Procedure and the search was therefore illegal. The presence and the search was therefore illegal. The presence of that witness was not denied. In fact it was admitted on behalf of the Petitioner that they were playing a game of cards. What was contended on their behalf was that they were not gambling and that nal was not being taken. On that point the prosecution evidence was believed. The presence of that witness was not denied. In fact it was admitted on behalf of the Petitioner that they were playing a game of cards. What was contended on their behalf was that they were not gambling and that nal was not being taken. On that point the prosecution evidence was believed. Consequently in the circumstances of the case it cannot be said that there was any serious infraction of the provisions of Section 103 of the Code. 11. It has lastly been urged upon the authority of the decision of the Supreme Court in Dhirajlal Girdharilal Vs. Commissioner of Income Tax, Bombay, AIR 1955 SC 271 that since the trial court was influenced by the pres umption arising u/s 6 of the Public Gambling Act the evidence which was led in the case, taken independently, could not be sufficient to warrant the conviction. In the Supreme Court decision which was based upon an interpretation of Section 66 of the income tax Act, 1922, it was observed that if the court of fact whose decision on a question of fact is final, arrives at a decision of fact by considering material which is partly relevant and partly irrelevant, or bases its decision partly on conjectures, surmises and suspicions and partly on evidence, then in such a situation clearly an issue of law arises; and in such a case it is well established that when a court of fact acts on material, partly relevant and partly irrelevant it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding; and that such a finding is vitiated because of the use of inadmissible material. The facts and circumstances of the case in Dhirajlal Girdharilal Vs. Commissioner of Income Tax, Bombay, AIR 1955 SC 271 were entirely different. In the present case the evidence that was led on behalf of the prosecution cannot by any stretch of reasoning be said to be irrelevant, or partly relevant and partly irrelevant. Apart from the presumption arising u/s 6 of the Pubic Gambling Act, which, as I have said, could not be raised in favour of the prosecution, the evidence that was led could be acted upon in view of the decisions cited above. And that evidence could form the basis of a valid conviction. Apart from the presumption arising u/s 6 of the Pubic Gambling Act, which, as I have said, could not be raised in favour of the prosecution, the evidence that was led could be acted upon in view of the decisions cited above. And that evidence could form the basis of a valid conviction. I am of opinion that the conviction of the applicants was perfectly justified. 12. On the question of sentence I do not think that a fine of Rs. 100/- against applicant No. 1 and the fine of Rs. 75/- against each of the other applicants u/s 4 can be said to be excessive. Nor can it be urged that since a custom prevails amongst the Hindus to gamble on the Diwali day, an offence of this nature should be condoned. There is no force in this revisional application and it is accordingly dismissed. The stay order is vacated.