JUDGMENT : Das, J. - This is an appeal by the State against an order dated 27-8-1963, passed by the Judicial Magistrate, II Class, Sambalpur, acquitting the Respondents of offences under Sections 3 and 4 of the Orissa Prevention of Gambling Act. 2. The Officer-in-Charge of the Sadar Police Station, Sambalpur, received information that gambling was going on in the house of accused Chhagan Lal at Sansadak, a place within the town Sambalpur and made note of the information at several places in his personal diary and ultimately 011 23-7-1963, he obtained a search warrant from the Section D.O., Sadar, and proceeded to the spot with his A.S.I. (p.w. 3) and some other witnesses of the locality. Reaching the house of Chhagan Lal he found all the accused persons gambling with cards and cash. He seized the cash and the cards under seizure list, ext. 9, and submitted a prosecution report (ext. 10) on the following day, u/s 4 against accused Chhagan Lal and u/s 3 against all other accused persons. In due course cognizance was taken and the accused persons were summoned to stand their trial. 3. The accused persons admitted that they were there in the house of Chhagan Lal, but contended that they were invited on the occasion of the birthday ceremony of his daughter. They, however, denied to be gambling as alleged by the prosecution. In support of their defence they examined one witness (d.w. 1) Radhakishen Agarwalla. 4. In support of its case, the prosecution examined three witnesses, P.W. 1 the officer-incharge, P.W. 2 an outsider search witness, and P.W. 3 the A.S.I. 5. The learned Magistrate acquitted the accused persons mainly on the ground that there was no evidence to show that the accused persons were in fact gambling at the spot, that is, in the house of Chhagan Lal, and that there were material discrepancies in the evidence regarding the seizure. 6. That the accused persons were present, in the house of Chhagan Lal at the time of the raid by the police is admitted. It cannot be disputed that the police seized some cards and cash under seizure-list, ext. 9, though the contention of the defence was that the cash was seized from their very person and not from the spot. That the accused persons were present, in the house of Chhagan Lal at the time of the raid by the police is admitted. It cannot be disputed that the police seized some cards and cash under seizure-list, ext. 9, though the contention of the defence was that the cash was seized from their very person and not from the spot. The accused persons do not deny the recovery of playing cards from the spot by the police when questioned by the Court. The question for consideration is whether they could be prosecuted for offences under Sections 3 and 4 of the Orissa Prevention of Gambling Act (17 of 1955)(hereinafter described as 'the Act'), on the evidence on record. 7. It has been admitted by the prosecution witnesses that they were unable to say as to which of the accused persons did in fact participate in the game. P.W. 1 admitted in cross-examination that on their arrival all of them stood up at his direction. According to him all of them were gambling but he was unable to say which of them was playing the card. The evidence of P.W. 3 is almost to the same effect. In cross-examination he admitted that he could not identify the actual gamblers. P.W. 2 also has not stated whether any or all the accused persons participated in the game. But according to him all the accused persons were present in the house of Chhagan Lal and were sitting on a Satranj and had playing cards amidst them. 8. It was contended by Mr. R.K. Mohapatra, learned Counsel for the State that once the accused persons were found with several heaps of cards and also money, the only presumption that could reasonably be drawn under the circumstances was that they were indulging in gambling. We have already seen that the accused persons admitted their presence in the house of Chhagan Lal and undoubtedly the cards and cash were also found there. Though from the evidence it appears that the cards and money were found in different heaps, the seizure-list, ext. 9 shows that there was only one seizure in respect of the entire stock of cards and cash. Ext. 9 does not indicate in how many heaps the cards or money were kept. Though from the evidence it appears that the cards and money were found in different heaps, the seizure-list, ext. 9 shows that there was only one seizure in respect of the entire stock of cards and cash. Ext. 9 does not indicate in how many heaps the cards or money were kept. It may be remembered that the plea of the accused persons was that the money was not seized from the place, but only from their pockets. Though it is the case of P.W. 1 that only one seizure-list was prepared, P.W. 3 stated in cross-examination that there were seizures in respect of each individual accused. If that were so, the prosecution should have placed all the seizure-lists to enable the Court to find out if any money other than the sum collected under ext. 9 was separately recovered from each of the accused or the sum of Rs. 851-2 nP. represents the total of recoveries made from all the accused persons. On account of this discrepancy on a material point between the evidence of p.ws. 1 and 3 naturally a doubt arises that the prosecution has not come forward to place before the Court the exact place from which the amount was seized whether from the spot or from the pockets of the accused persons as alleged by them. 9. Learned Counsel for the Appellant contended that it is necessary for the prosecution to prove that each one of the accused persons was participating in the gambling and it is enough to show that they were present in the house of Chhagan Lal where these cards and money were found. In this connection, it is necessary to examine the relevant provisions of the Act. Section 2(b) defines "gambling or gaming" as follows: "Gambling or gaming" does not include lottery and means a play or game for money or other stake and includes betting and wagering and other act, game and contrivance by which a person intentionally exposes money or things of value to the risk or hazard of loss by chance. Taking part in "gambling or gaming" is made punishable u/s 3 of the Act. Taking part in "gambling or gaming" is made punishable u/s 3 of the Act. Thus, to make out a case u/s 3, it is necessary for the prosecution to prove that an accused person indulged himself in some play or game for money or other stakes and intentionally exposed money or things of value to the risk or hazard of loss by chance Section 2(c) of the Act defines a 'gaming house' as follows: (2)(c) 'gaming house' means any house, room, tent, enclosure, space, vehicle, vessel or place where gaming or gambling takes place or where instruments of gaming are kept or used for gaming or gambling therein. Section 4 of the Act makes it punishable to own or keep or to have in charge a gaming house. The sentence provided for offences under Sections 3 and 4 of the Act are the same, i.e., a sentence of imprisonment which may extend to one month or with fine which may extend to one hundred rupees or with both. The Act however makes a distinction between an ordinary gaming house and what is defined as a 'common gaming house' in the Act. It treats gaming in a common gaming house as a serious offence so also the offence of owning, keeping or having the charge of a 'common gaming house'. 'Common Gaming house' has been defined u/s 2(a) as follows: "Common Gaming House" means any gaming house where instruments of gaming are kept or used for profit or gain of the user, owner, occupier or keeper of such house whether by way of a charge for the use of the instruments of gaming or of such house or otherwise how-so-ever. Section 5 makes it punishable to own, keep or be in charge of a "common gaming house". Similarly a person found gaming in a "common gaming house" shall be held liable u/s 6. Offences under Sections 5 and 6 are provided with a higher sentence which may extend to six months' imprisonment or a fine of Rs. 10000/- or both. Thus the offence of owning or keeping a 'common gaming house' or taking part in game in the said house is taken as a more serious offence. Sections 5 and 6 are in a way aggravated forms of offences under Sections 4 and 3 respectively of the Act. 10000/- or both. Thus the offence of owning or keeping a 'common gaming house' or taking part in game in the said house is taken as a more serious offence. Sections 5 and 6 are in a way aggravated forms of offences under Sections 4 and 3 respectively of the Act. The law clearly takes a more serious notice of keeping a 'common gaming house' or gaming in the same. Apart from providing a penalty the 2nd part of Section 6 further says that "Any person found in a common gaming house during any gaming or playing therein shall be presumed until the contrary is proved to have been there for the purpose of gaming and to have taken part therein'. 10. A similar rule of presumption has been provided u/s 9 of the Act, but in a different context. u/s 8 of the Act a District Magistrate or a Magistrate of 1st class or a Superintendent of Police if he has reason to believe that any place is used as a 'common gaming house' may by warrant authorise a police officer not below the rank of an A.S.I. to enter such a place and take into custody persons found in such place whether such persons were there actually gaming or not and may seize or authorise the seizure of all instruments of gaming and all such money and articles of value suspected to have been used for the purpose of gaming and found at such a place. 11. Section 9 provides that when a place is searched in accordance with the provisions of Section 8 and some persons or instruments of gaming are found at such a place, a presumption will arise that the said place is a 'common gaming house' and the persons present there were there for the purpose of gaming although they were not found to be actually playing. 12. Mr. R.K. Mohapatra, learned Counsel for the State contended that once the accused persons were found with the cards and some money at the place of Chhaganlal, the Court may presume that they were there for the purpose of gaming under the provisions of Section 6 or 9 of the Act. As stated above, the prosecution has not come forward with a consistent story so far as the seizure of the cards and cash are concerned. As stated above, the prosecution has not come forward with a consistent story so far as the seizure of the cards and cash are concerned. It, was the prosecution case that when the police party raided the place, play was actually going on and cards and money were placed by different heaps. Some more direct evidence on the point might have helped the prosecution in establishing that the parties in fact staked some money while playing at the place. But the S.I. instead of showing such separate heaps of money or cards in the seizure-list amalgamated an the money and cards. No oral evidence is adduced to show that in fact the cards and money were placed in separate heaps with a view to probablise the story of staking money and playing a game of chance. The seizure-list rather negatives the prosecution story in this respect. Regarding actual participation in the game the oral evidence is wholly unsatisfactory. None of the witnesses were able to say as to which of the accused persons actually participated in the games, but in a general way, it was stated that all were there. Now the question is whether under the circumstances of the case a presumption could be drawn either u/s 6 or Section 9 of the Act that the accused persons in fact participated in the game. Such a presumption will arise u/s 6 only when a person is found in a 'common gaming house' and not in any gaming house. The law makes a clear distinction between a 'common gaming house' Section 2(a) and a mere gaming house Section 2(c). To make out a case of a common gaming house the element as enumerated in Section 2(a) has to be made out the essential point being that the owner or occupier of the place wanting some kind of profit or gain from the gaming house. No such evidence has been laid in this case to make out a case that the house of Chhaganlal was a common gaming house. It may be recalled here that Chhaganlal has not been prosecuted u/s 5 of the Act for keeping a common gaming house or the other accused persons have not been charged u/s 6 for gaming in such a gaming house. On the other hand they have been prosecuted under Sections 4 and 3 of the Act. It may be recalled here that Chhaganlal has not been prosecuted u/s 5 of the Act for keeping a common gaming house or the other accused persons have not been charged u/s 6 for gaming in such a gaming house. On the other hand they have been prosecuted under Sections 4 and 3 of the Act. The prosecution is supposed to be funny aware of the distinction between the two classes of offences. Thus no such presumption u/s 6 is available to the prosecution in the present case. 13. It was next contended on behalf of the Appellant that the rule of presumption embodied in Section 9 of the Act is applicable to the case. This, however, is not the correct position. Section 9 clearly postulates that the presumption would be available only when a warrant has been issued u/s 8 of the Act and such a warrant can be issued when the officers mentioned in that section have the reason to believe that the place is being used as a common gaming house. 14. Mr. Murty rightly pointed out that the search warrant filed in the case does not show that it was issued u/s 8 of the Act, nor is there any mention in the same that the S.D.O. who issued the warrant was satisfied that the house of Chhaganlal was being used as a common gaming house. According to Section 9 when any cards, dice, gaming, table cloth, boards or other instruments of gaming are found in any house which are searched under the provisions of Section 8, it shall be evidence until the contrary is made to appear, that such a house is a common gaming house and that the persons found there were for the purpose of gaming, although no play was actually seen by the searching officer. No such presumption of guilt however will be available to the prosecution when they proceed against the accused under Sections 3 or 4 of the Act as in the present case, and the prosecution has to establish by evidence the guilt of each accused. 15. Undoubtedly the rule of presumption of guilt encroaches upon the liberty of the subject and must be strictly construed. 15. Undoubtedly the rule of presumption of guilt encroaches upon the liberty of the subject and must be strictly construed. It has been held in a number of reported cases that the presumption u/s 6 of the Public Gambling Act (Central Act) is not available unless the provisions of Section 5 of that Act have been strictly complied with. Sections 5 and 6 of the Public Gambling Act, 1867 (Act 3 of 1867) respectively correspond to Sections 8 and 9 of the present Act. 16. In a case reported in Jitendra Bhusan Das and Others Vs. Emperor it was held that it is not open to Courts to draw any presumption u/s 6 in respect of instruments of gaming found on the premises searched under a warrant not indicating that the Magistrate had any reason to believe that the house which he directed to be searched was used as a common gaming house. 17. In Public Prosecutor v. Subramania Sastri AIR 1935 Mad 648 , his Lordship while dismissing the Government Appeal held that the presumption u/s 6 of the Madras Gaming Act can only apply to searches conducted in pursuance of a warrant issued u/s 5 of that Act. It does not apply where the warrant is issued u/s 96 of the Code of Criminal Procedure. 18. In the case reported in AIR 1933 234 (Lahore), the very same view was also taken. The Allahabad High Court in the case reported in Kimat Mal and Others Vs. The State also took the same view holding that if a search is not made in accordance with the Gambling Act, the presumption u/s 6 will not be available to the prosecution. 19. We have already seen that the evidence does not show that the house of Chhagan Lal was being used as a common gaming house. The personal diary entries made by P.W. 1, the Officer-in-charge, also does not make out any such case. All that they show was that gambling often takes place in the house of Chhagan Lal. But that by itself is not enough to make it a common gaming house in law. There must be some evidence led to show that the accused Chhagan Lal was making a profit out of the game. All that they show was that gambling often takes place in the house of Chhagan Lal. But that by itself is not enough to make it a common gaming house in law. There must be some evidence led to show that the accused Chhagan Lal was making a profit out of the game. Assuming that on the date of occurrence the accused persons were playing with stakes, that itself is not enough to make the house of Chhagan Lal a common gaming house. In the Madras case cited above (A.I.R. 1935 Mad 648) it was also held that the mere fact that on certain occasions people used to play cards at a particular place and perhaps for money, does not necessarily make it a common gaming house. Even assuming that a presumption is available to the prosecution, the defence also has adduced some evidence to show that the accused persons were there being invited by Chhagan Lal for the birthday ceremony of his daughter. The printed invitation cards issued on this occasion have also been filed. Sections 6 and 9 provide special rule of evidence and the evidence that is expected of the accused a case of this nature cannot be of the same standard as is required from the prosecution, and some satisfactory explanation by way of rebuttal of the presumption may prove sufficient. 20. The present is a case under Sections 3 and 4 of the Act. In a case reported in Laxman v. State of Punjab 1955 N.U.C. 3432 (Notes on Unreported Case), Bhandari, C.J., held that the mere presence of the implements of gaming or the fact that some moneys were found in a glass placed near the knee of the gambler or that some money was lying in front of the other accused hardly serve as evidence that the house was a common gaming house, and that the people present there were gaming for the sake of gain or profit. The same was the view expressed in AIR 1923 All 1236. 21. Reliance was placed on behalf of the State on a case reported in Gurrappa and Ors. The same was the view expressed in AIR 1923 All 1236. 21. Reliance was placed on behalf of the State on a case reported in Gurrappa and Ors. v. Government of Mysore AIR 1953 Mys 14, where it was held that when a number of persons were found playing with cards having several heaps of money before them, the circumstances were enough to draw the natural presumption that the accused were playing a game of chance. But in this case, we have already seen that, the seizure made under ext. 9 does not show that the money or the cards were collected from different heaps. There was only one consolidated seizure. That apart the defence has explained the presence of the accused persons in the house of Chhagan Lal on account of invitation for the birthday ceremony of his daughter. Moreover the above Mysore case was a case under the Mysore Police Act the provisions of which are not similar to those in the Act in the present case. No doubt the Magistrate has not elaborately dealt with all the essential questions involved in this case, hut in view of the position in law as stated above, I must hold that the prosecution has failed to make out a case against the accused-Respondent Chhagan Lal u/s 4 and as against other accused u/s 3 of the Act. The order of acquittal is accordingly maintained and the appeal dismissed. The seizure-articles are to be returned to the owners there of. Final Result : Dismissed