V. B. RAJU, J. ( 1 ) THIS is a revision application by nine persons who were convicted by the Judicial Magistrate First Class Junagadh under secs. 4 and 5 of the Bombay Prevention of Gambling Act which will hereinafter be referred to as the Act. Applicant No. 1 Fatandas Chimanlal was convicted under sec. 4 and the others under sec. 5 of the Act. Holding that the conditions of sec. 6 of the Act had been satisfied and relying on the evidence that applicant No. 1 was the Secretary of the-Club known as Swastik Club in respect of which warrant had been issued the learned Magistrate convicted applicant No. I under sec. 4 and he convicted the others under sec. 5 of the Gambling Act because they were found in the house when the raid was conducted. In appeal the learned Sessions Judge confirmed by conviction and hence this revision application. ( 2 ) IN regard to applicant No. 1 it has been contended that he was not present at the time of the raid that there was no proof that he was living in the premises and that as he was the Secretary of the Swastik Club he cannot be convicted under sec. 4 of the Act which it is contended does not apply to clubs. As regards the other applicants it is contended that at the time of the raid admittedly gaming was not going on in the premises and that therefore the conviction of the other applicants under sec. 5 of the Act is improper. It is also contended that the presumption has been rebutted learned counsel for the applicants on the following case:- (1) Mohd. Dawood v. Emperor A. I. R. 1948 Bombay 67 (2) Emperor v. Kallappa Gurappa A. I. R. 1939 Bom. 481; (3) Ismail Varyo and others v. Emperor A. I. R. 1934 Sind 130 and (4) Mani Ram v. State 1954 Criminal Law Journal 1209. ( 3 ) COMMON gaming house is defined in sec. 3 of the Act sec. 4 of the Act punishes certain persons like owners or occupiers of a common gaming house and persons who have the case or management of a common gaming house. Sec. 5 punishes persons found in any common gaming house either gaming or present for the purpose of gaming. Under sec. 3 of the Act sec. 4 of the Act punishes certain persons like owners or occupiers of a common gaming house and persons who have the case or management of a common gaming house. Sec. 5 punishes persons found in any common gaming house either gaming or present for the purpose of gaming. Under sec. 7 of the Act when any instrument of gaming has been seized in any house room or place entered under sec. 6 or about the persons 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 ground for suspecting that the thing 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 any person acting under the authority of either of them. ( 4 ) IN this case it has not been contended that the warrant is defective. The finding that instruments of gaming were found in the house at the time of the raid is also not challenged. Rebuttable presumption must therefore be drawn under sec. 7 that the house was a common gaming house and therefore the burden of proving the contrary is on the accused. Under sec. 7 of the Act there is a presumption that the house in question was a common gaming house but there is no presumption that any particular person was the owner or occupier or a common gaming house. The Bombay case Mohd. Dawood v. Emperor A. I. R. 1948 Bombay 67 explains this position. The allegation of the prosecution that applicant No. 1 was the Secretary of the Swastik Club has been proved by evidence and is admitted. This fact is not challenged in revision. To prove that applicant No. 1 was the Secretary of the house which was known as Swastik Club the prosecution did not rely on any presumption but on actual evidence. This Bombay Case does not therefore help the learned counsel for the applicants. This fact is not challenged in revision. To prove that applicant No. 1 was the Secretary of the house which was known as Swastik Club the prosecution did not rely on any presumption but on actual evidence. This Bombay Case does not therefore help the learned counsel for the applicants. The Sind case also does not help him because that was a case of defective warrant while the instant case is not a case of defective or irregular warrant. The case of Emperor v. Kallappa Gurappa A. I. R. 1939 Bombay 481 was cited in support of the proposition that the presumption under sec. 7 of the Act cannot be drawn in the case of Clubs. But such proposition has not been laid down in this Bombay Case. The case merely explains the distinction between a respectable Club and a common gaming house. The points of distinction are (1) that in the case of a respectable Club it is open only to Members and the second point of distinction is that in the case of a club profit is not made by the owner or occupier of the premises. But it is nowhere laid down in this Bombay case that the presumption under sec. 7 cannot be drawn or should not be drawn if a respectable Club is raided under a warrant issued under sec. 6 of the Act. But in the case of a respectable Club it may be easy to rebut the presumption that it is a common gaming house. In the instant case although the place raided is what is known as Swastik Club in view of the facts found at the time of the raid which are mentioned in paras 10 and 11 of the Judgment of the learned Magistrate his view that presumption is not rebutted cannot be interfered with in revision. ( 5 ) THE last case relied on by the learned counsel in the case of Mani Ram and others v. State 1954 Cri. Law Journal 1209 where on the evidence it has been held that the presumption was rebutted. ( 5 ) THE last case relied on by the learned counsel in the case of Mani Ram and others v. State 1954 Cri. Law Journal 1209 where on the evidence it has been held that the presumption was rebutted. As the raid was made two days before the Diwali day when Hindus indulge in gaming which is considered auspicious it was held that there was no evidence to show that in that house gaming had taken place on any previous occasion that it had not been shown that the accused in question had derived any profit or gain from gambling and that these circumstances were quite sufficient to rebut the presumption arising under sec. 6. This case was therefore dealing with facts from which the presumption under sec. 7 of the Act can be rebutted. In the said case the place was raided two days before the Diwali. If a raid under a proper warrant is conducted on a respectable house on a Diwali day and playing cards are found. under the law a rebuttable presumption under sec. 7 of the Act would arise but ordinarily it would be held that the presumption that the house was a common gaming house is easily rebutted if the raid is conducted on such days as Diwali days. Therefore the case does not help the learned counsel for the applicants. ( 6 ) IT is true that applicant 1 was not present at the house when it was raided but in order to justify a conviction under sec. 4 of the Act it is not necessary to prove that the owner or occupier or the person who has the care or management of the house was present at the time of the raid. For a conviction under sec. 4 of the Act the prosecution has to prove (1) that a person opens keeps or uses any house room or place for the purpose of a common gaming house; or (2) that being the owner or occupier of any such house room or place he knowingly or willfully permits the same to be opened occupied kept or used by any other person for the purpose aforesaid; or (3) that he has the case or management of or in any manner assists in conducting the business of any such house room or place opened occupied kept or used for the purposes aforesaid. If any of these ingredients is proved the person would be guilty under sec. 4 of the Act although he was not present at the time of the raid. Where the presumption applies it is not necessary to prove that he receives nil or makes any profit out of the gaming. There is therefore no merit in the contention of the learned counsel in regard to applicant No. 1. ( 7 ) AS regards the other applicants also it is contended that admittedly gaming was not going on at the time of the raid and that therefore the other applicants cannot be held to be guilty. For a conviction under sec. 5 of the Act it is not necessary that the person should be actually found gaming. A person who is present in a house for the purpose of gaming would be guilty under sec. 5 even though none may be actually gaming at the time of the raid. In view of the presumption under sec. 7 however a person found in the house room or place in question is presumed unless the contrary is proved to be present therein for the purpose of gaming although no gaming was actually seen at the time of the said. Sec. 7 even makes it clear that the presumption can be drawn although gaming may not be actually seen. There is therefore no merit in the contention of the learned counsel for the applicants. The revision application is therefore dismissed. .