ORDER SHIVDAYAL, J. 1. The Additional District Magistrate, Bhind, who tried Kishan Chand petitioner for the offences under Sections 3 and 4, and seven other accused (including Ramnath and Munnalal petitioners) for the offence under section 4 of the Madhya Bharat Gambling Act, found that in the evening of October 12, 1959, Kalicharan Dixit (P.W. 1) Station Officer, Kotwali, Bhind received information that gambling was going on in the house of Kishan Chand accused, He sent Ram Saran Tripathi (P. W. 7) Head Constable and Govind Bihari (P. W. 9), a clerk in the office of the District Superintendent of Police, to see whether the information was correct. Govind Bihari was given Rs. 15 by the Sub-Inspector to participate in the gambling. After a short while Kishan Chand's house was raided by the Sub-Inspector with whom were two witnesses, Jagdeo (P. W. 3) and Laxmi Narain (P. W. 11). The petitioners and some other persons were found within the house where instruments of gaming, that is, a pair of dice, four packs of cards and cash were seized The learned Magistrate drew a presumption against the petitioners and their co-accused under section 6 of the said Act. He dis-believed their defence and found that accused guilty of the offences with which they were charged, except Mansingh who was acquitted. Kishan Chand was sentended to two months simple imprisonment on each count (concurrent); each of the others was awarded a sentence of one month simple imprisonment. The Additional Sessions Judge, Bhind, dismissed their appeal. 2. It is first contended on behalf of the petitioners that the requisites for the presumption under section 6 did not exist. Learned counsel took me through the entire evidence on which the Conviction was founded. I see no ground to interfere with that finding. Two conditions must be satisfied before a presumption can be raised under section 6. The first is that there must be an instrument of gaming seized in the house and the second is that the house is entered or searched under the provisions of section 5 i. e., after satisfaction upon credible information and after such inquiry as may be thought necessary. In this case, it is undeniable that dice and cards are instruments of gaming. There is over-whelming evidence to prove that these articles were recovered from that part of Kishan Chand's house where all the accused were found. In this case, it is undeniable that dice and cards are instruments of gaming. There is over-whelming evidence to prove that these articles were recovered from that part of Kishan Chand's house where all the accused were found. The accused did not come forward with any explanation, but merely denied the seizure of those articles from that place. Shri Anand suggests that these instruments of gaming could have well been planted by the raiding party and the basis of the suggestion is that there is discrepancy in prosecution evidence as to the taking of personal search of the police party, Shri Anand points out to me the statement of Ram Saran P. W 6 that the personal search was taken at the police station, while Laxmi, Ram Saran and Dixit stated that the personal search was taken near Kishan Chand's house. Jagdeo denied that the Sub-Inspector was searched in his presence. I find that there is positive evidence that search was, in fact, taken If there had been some confusion in their mind of one witness about the exact spot of the search, it is not material. The memorandum Ex P. 1 was witnessed by Laxmi and Jagdeo and they admitted to have subscribed these documents. All this aside, there is positive evidence of Govind Bihari P. W. 9 and Shiv Narain P. W. 10 not only that these instruments were in the room but also that the pair of dice was actually being used in gambling. I see no error in the finding of the Courts below that these instruments were seized in Kishan Chand's house and the suggestion that they might have been planted is baseless. 3. It is then urged that Kali Charan had no reasonable ground for suspicion. Shri Anand lays stress on the statement of Dhanpal P. W. 4 who was stated by Kalicharan Dixit to have informed him that gambling was going on. Dhanpal was declared hostile. Even so, all that is pointed out to me is a contradiction as to when and where the information was given According to Dhanpal he informed the Sub-Inspector in the lane. Shri Anand's argument that this information, was given after the raiding party had started from the police station is not supported from the facts on record. Dhanpal did not state the point of time when he gave the information. Shri Anand's argument that this information, was given after the raiding party had started from the police station is not supported from the facts on record. Dhanpal did not state the point of time when he gave the information. It is also pointed out that, according to Dixit Dhanpal informed him of eight persons gambling in Kishan Chand's house, while Dhanpal did not say so. This is no discrepancy because Dhanpal was not asked about it. At any rate, the fact remains that Dhanpal did inform Kalicharan Dixit. Besides, it is proved that previously two reports had been entered in the police record (Ex. P. 6 dated the 6th June, and Ex P; 7 dated the 28th July, 1957 that there was gambling going, on in Kishan Chand's house. Above all this, Kalicharan took care to ascertain whether the information was correct. He sent Ram Saran and Govind Bihari first, Govind, Bihari went inside the house while Ram Saran remained outside. The understanding was that if Govind Bihari did not come out within a few minutes that would be an indication of the fact that gambling was going on inside and Ram Saran would inform Kalicharan Dixit accordingly. When actually Govind Bihati did not return, Ram Saran informed the Station Officer and then the police party started. In my opinion, these facts undoubtedly afforded the satisfaction required under section 5 4. I am further convinced that the prosecution succeeded in proving that actual gambling took place. Govind Bihari (P. W. 9) the Punter, and Shiv Narain (P. W. 10), the approver, were inside the room and have given details of the person who participated. It is also proved by the statements of Laxmi and Ram Saran that they climbed over a wall of Kishan Chand's house and saw gambling going on. That the door of the house had been chained from inside and that several persons who were not admittedly related to Kishan Chand were found in the same room an inner most apartment of the house are facts which further strengthen the veracity of the prosecution case. The fact that the game of Kaptain was placed is established by cogent evidence on the record. As described by Dixit, in this game the dice is thrown against a wooden plank or an earthen pitcher and it decides who wins and who loses. The fact that the game of Kaptain was placed is established by cogent evidence on the record. As described by Dixit, in this game the dice is thrown against a wooden plank or an earthen pitcher and it decides who wins and who loses. Shri Anand lays a great deal of stress on Govind Bihari's statement that they were playing with the help of a pitcher. I am at one with the observations made against him in the judgments of the Courts below that this witness tried to produce something useful to the accused. Apart from the fact that from other evidence it is established that they were actually gambling with the help of a plank, the seizure memo Ex. P. 2 clinches the matter. No earthen pitcher was found inside the room. It seems clear to me that the chaff was removed from the grain in an appropriate manner by the Courts below. 5. From all this discussion I am satisfied that the findings of the lower Courts namely, that Kalicharan Dixit had reasonable grounds for suspicion, that he had credible information, that he made proper inquiry, and that instruments of gaming were recovered from the house of Kishan Chand, are correct beyond any manner of doubt. The petitioners admitted their presence within Kishan Chand's house at the time when the police raided the house. There is, therefore, a presumption of law under section 6 of the Act that the petitioners were present there for the purpose of gaming. The finding of the Courts below that the game of Kaptain was actually being played when the police raided the house must also be upheld. 6. Now the questions are whether the presumption has been rebutted and whether there is positive evidence that the petitioners were actually gambling. 7. Ram Nath's defence was that he had gone to Kishan Chand's house for executing a Kirayanama in favour of the latter as it had been agreed that Kishan Chand would let out a house to Ramnath Munnalal explained his presence there as the scribe of the document. It is true that Govind Bihari stated that a Kirayanama was writien in Kishan Chand's house on a stamp of eight annas. The learned Courts below have discussed Govind Bihari's evidence in detail and it is unnecessary to retravel those grounds. It is true that Govind Bihari stated that a Kirayanama was writien in Kishan Chand's house on a stamp of eight annas. The learned Courts below have discussed Govind Bihari's evidence in detail and it is unnecessary to retravel those grounds. Shri Anand lays stress on the evidence of Bhawani Shankar (P. W 5) who stated that Ramnath and Chhote Khan were going to Kishan Chands house for taking a house on rent. Even assuming that these persons had gone there for that purpose, that is not sufficient to rebut the presumption. Firstly, their presence in such an inner-most part of the house has not been explained Secondly, their presence for executing a deed is not inconsistent with their presence for gambling as well. Thirdly, the rent-note (Ex. D. 2) was produced by the accused before the trial Magistrate for the first time. It is on a stamp paper, which stamp was sold on the same day, that is, the 12th October. No time is written on it; it might have as well been sold before 8 p. m. or after 10 p m. The evidence of Murarilal, stamp-vendor does not help them as he could not state the time with any precision. Fourthly, it is noteworthy that this rent-note was not found on the spot by the police, nor did the accused produce it there. There is no grievance even in their own statements thas the accused showed or offered the rent-note to the Police Officers but they did not take it. Fifthly, Ramnath merely stated that he had gone there to execute the Kirayanama and that he paid Rs. 16 but when saked in his cross-examination (under Section 342-A Cr. P. C.) he stated that be never occupied the premises for which the rent-note was executed, (the rent-note was a real transaction and Ramnath had really paid Rs. 16 in advance to Kishan Chand, that conduct is not understandable. According to the defence version, the stamp was taken by Ramnath to Kishan Chand's house at 8 in the night. It was certainly an unusual hour for the writing and execution of a rent-note unless there was some emergency, but the omission on the part of Ramnath to occupy the premises at any time thereafter shows that there Was no urgency whatever. 8. It was certainly an unusual hour for the writing and execution of a rent-note unless there was some emergency, but the omission on the part of Ramnath to occupy the premises at any time thereafter shows that there Was no urgency whatever. 8. Furthermore, in this case there is convincing evidence of actual gambling in the statements of Govind Bihari, Shiv Narain, Ram Saran and Laxmi, which evidence has fully been discussed by the Courts below. Having gone through their statements I see no ground for interfering with that concurrent finding of fact, which must be upheld as proper. 9. It is contended on behalf of the petitioners that the prosecution failed to prove what that actual game was, which was alleged to be gambling. There is no substance in this contention because it has been found proved by both the Courts below that "Kaptain" was being played with a dice. The suggestion of the learned counsel that the cards and dice might have been in the house for children to play indoor games is but imaginary because that is not the explanation given by Kishan Chand; he has altogether denied the recovery of any dice from there. 10. Then it is urged that it was necessary for the prosecution to prove that the game which was going on was not a game of skill. It is true that games are of three kinds: (i) of mere chance, (ii) of mere skill, and (iii) of chance and some element or skill combined. The last mentioned class, may be sub-divided into two heads: (a) where the element of chance is substantial or predominates the element of skill, and (b) where the element of chance is not substantial but is negligible. I am quite unable to appreciate the argument how a game played with a dice can be classified either in (ii) or in (iii) (b). There can be absolutely no doubt that any game placed with a dice must fall within category (i). Kalicharan Dixit has stated the manner in which the game is played. A six-sided dice is thrown against a wooden board. Stakes are placed on a Place (a sheet of cloth on which are drawn six houses for putting their stakes by the gamblers). Each gambler wins or loses according as the dice turns. If the gambler who throws the dice wins, all others lose, and vice versa. A six-sided dice is thrown against a wooden board. Stakes are placed on a Place (a sheet of cloth on which are drawn six houses for putting their stakes by the gamblers). Each gambler wins or loses according as the dice turns. If the gambler who throws the dice wins, all others lose, and vice versa. Undoubtedly, this is a game of mere chance. 11. Govind Bihari and Shiv Narain have given full details of the occurrence, I have perused their statements with care and I have reached the conclusion that the finding arrived at by the Courts below that Shiv Narain, Ramnath, Munnalal, Kishanchand and Govind Bihari were engaged in gambling when the police party suddenly raided the house and apprehended them. I say nothing about Chhote Khan, and Shri Kishan who did not file any revision here). For these reasons the convictions of all the three petitioners must be maintained. 12. Learned counsel appeals to me for reduction of sentence and relies on the decision in Ram Narain Vs. State, 1960 JLJ 886 , Where it is held that after the repeal of the Madhya Bharat Gambling Act, and its replacement by the Central Provinces Gambling Act, the Court has power to inflict a punishment of fine only and the provisos to sections 3 and 4 of the M. B. Act relating to sentence of imprisonment have ceased to be mandatory. That decision does not bind me because in that case section 6 of the M. P. Extension of Laws Act, 1958 was not considered. There it is enacted as follows:- "If immediately before the appointed day, there is in force in any region of the State any law corresponding to any of the Acts now extended to that region, that, law shall, save as otherwise expressly provided in the Act, Stand repealed: Provided that the repeal shall not affect:- (a) ................. (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law, so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d)................." In this case the offence was committed on October 12, 1957 when that Act was in force. Its subsequent repeal did not affect the punishment incurred by the petitioners on the day that they committed the offences. Its subsequent repeal did not affect the punishment incurred by the petitioners on the day that they committed the offences. However, I think that like all other accused in this case, the minimum sentence should meet the ends of justice as regards Kishan Chand as well, because it is his first offence. 13. The trial Magistrate did not inflict any punishment of fine on the petitioners, in disregard to the mandatory direction in Sections 3 and 4 of the M. B. Gambling Act, 1949. Notice of enhancement was, therefore, given when I heard this case formerly. 14. In the result.- (1) Convictions of Ramnath and Munnalal petitioners of the offence u/s 4 of the Madhya Bharat Gambling Act are maintained. Each of them shall suffer simple imprisonment for one month and shall pay a fine of Rupees two hundred. In default of payment of fine, a further imprisonment (simple) for one month shall be suffered. (2) Conviction of Kishan Chand petitioner of the offences under Section 3 of the said Act is maintained. He shall suffer simple imprisonment for one month and shall pay a fine of Rupees two hundred in default he shall suffer imprisonment (simple) for one month. His conviction of the offence under Section 4 of the Act is also maintained and he shall suffer simple imprisonment for one month and shall pay a fine of Rupees two hundred in default shall suffer further imprisonment (simple) for one month. The sentences of imprisonment shall run concurrently. 15. The petitioners shall surrender forthwith.