M. U. SHAH, N. K. VAKIL, J. ( 1 ) THIS criminal appeal is directed against the order passed by the City Magistrate 3 Court Ahmedabad convicting appellant No. 1 under sec. 4 (a) of the Bombay Prevention of Gambling Act 1887 and sentencing him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 200. 00 in default to suffer rigorous imprisonment for ten days and convicting appellants Nos. 2 to 13 under sec. 5 of the said Act and sentencing each of them to suffer rigorous imprisonment for one month and each of them to pay a fine of Rs. 200. 00 in default to suffer further rigorous imprisonment for seven days. ( 2 ) THE facts that gave rise to the prosecution case are as follows:it was alleged that appellant No. 1 was in possession of one room in a chawl known as Ram Chawl at Khokhra Mehmadabad wherein with the help of appellant No. 2 gambling was carried on. He used to collect persons there and made profit out of the proceeds of gambling. On receiving information about it on 9th of March 1964 Police Inspector Mankad went to the room with panchas at about 7-30 p. m. and found appellants Nos. 2 to 13 sitting in a circle playing the game of Andar-Bahar a game played for gambling with cards and money. Appellant No. 2 was seen taking Nal money when the game was over. Having watched the game being played the Inspector entered the room with the panchas and after showing the authority to search a search was carried out of the room and the person of all the appellants present there. Card and money were attached which were lying on the ground. Nal money with the metal cup in which it was found and which was with appellant No. 2 and cash found on the person of respective appellants were attached. It is an admitted position that appellant No. 1 was not present at the time of the raid. On these facts all the appellants were put up before the Magistrate to stand their trial. ( 3 ) ALL the accused had pleaded not guilty to the charge. It is an admitted position that appellant No. 1 was not present at the time of the raid. On these facts all the appellants were put up before the Magistrate to stand their trial. ( 3 ) ALL the accused had pleaded not guilty to the charge. The defence of appellant No. 1 was that he was neither in possession nor in occupation of the room in which the raid was made that he had transferred the tenancy and possession of the said room to one Devmani months before the raid was carried out and that he had nothing to do with the game that was being played in the said premises and that he was not guilty of the charge. Appellants Nos. 2 to 13 admitted their presence in the room but each had an explanation to give to show that they were not guilty. Appellant No. 2 stated that he was playing but he was playing some other game. He conceded that he was the secretary of the club where people used to come and play innocent games including those of cards. The name of the club was Vijay Club. Appellants Nos. 3 and 4s case was that they were playing the game of carrom. Appellant Nos. 5 6 and 7s defence was that they were not playing cards but they were playing serpant game (Snakes and ladders ). Appellant Nos. 8 9 12 and 13s defence was that they were merely sitting and watching. Appellant No. 10s version was that he had come there only to take the money from appellant No. 2. Appellant No. 11s defence was that he had come there to play some other game. ( 4 ) THE learned Magistrate after recording the evidence and hearing the arguments came to the conclusion that all of them were guilty and passed the order of conviction and sentence as aforesaid. So far as appellant No. 1 was concerned the learned Judges conclusion was that it was obvious that he wanted to keep his name out of records and he had put up Devmani who was his servant as the person in whose name the tenancy stood transferred since January 1964. He refused to believe that there was any genuine transfer of the tenancy rights in favour of Devmani. He refused to believe that there was any genuine transfer of the tenancy rights in favour of Devmani. His conclusion was that appellant No. 1 had merely put up Devmani to avoid suspicion and also to avoid punishment in case of prosecution. As regards appellants Nos. 2 to 13 the learned Magistrate came to the conclusion that they were proved to be present in the room which was used as common gaming house playing the game of cards and from where the instruments of gaming were found. The learned Magistrate therefore raised the presumption under sec. 7 of the Act against these appellants ( 5 ) BEING aggrieved by the order of conviction this appeal had been filed challenging the conviction and sentence of all the appellants on grounds which we shall mention. But before that one fact needs to be noted that by an application the appellants sought leave of the Court to amend the memo of appeal to raise fresh grounds particlarly the contention that the provisions of secs. 6 and 7 of the Bombay Prevention of Gambling Act No. IV of 1887 violate the constitutional guarantee of equal protection of law given by Article 14 of the Constitution of India and should therefore be struck down. Leave was granted to amend the memo and notice was issued to the Advocate General. Notice has been served on the Advocate General but no appearance is filed. ( 6 ) WE propose to first deal with the constitutional issues raised. The relevant impugned provisions are as follows:- sec. 6. Leave was granted to amend the memo and notice was issued to the Advocate General. Notice has been served on the Advocate General but no appearance is filed. ( 6 ) WE propose to first deal with the constitutional issues raised. The relevant impugned provisions are as follows:- sec. 6. (1) It shall be lawful for a Police Officer- (I) any area for which a Commissioner of Police has been appointed not below the rank of a Sub-Inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the Commissioner of Police and (II) elsewhere not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a District Additional Assistant or Deputy Superintendent of Police and (III) without prejudice to the provision in clause (ii) above in such other area as the State Government may by notification in the Official Gazette specify in this behalf not below the rank of a Sub-Inspector and empowered by general order in writing issued by the District Magistrate (A) to enter with the assistance of such persons as may be found necessary by night or by day and by force if necessary any house room or place which he has reason to suspect is used as a common gaming-house (B) to search all parts of the house room or place which he shall have so entered when he shall have reason to suspect that any instruments of gaming are concealed therein and also the persons whom he shall find therein whether such persons are then actually gaming or not (C) to take into custody and bring before a Magistrate all such persons (D) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming and which are found therein: provided that no officer shall be authorised by special warrant unless the Commissioner of Police the Magistrate the District (or Additional) or Assistant or Deputy Superintendent of Police concerned is satisfied upon making such inquiry as he may suspect the said house room or place to be used as a common gaming-house. (2 ). . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . Section 7. When any instrument of gaming has been seized in any house room or place entered under sec. 6 or about the person 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 grounds 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 by any person acting under the authority of either of them. Provided that the aforesaid presumption shall be made notwithstanding any defect in the warrant or order in pursuance of which the house room or place was entered under sec. 6 if the Court considers the defect not to be a material one. ( 7 ) THE submission made on behalf of the appellants in support of the challenge to the vires of the said provisions are as follows:- (1) There is discrimination between areas where there is Police Commissioner and areas where there is no Police Commissioner. Stated a little differently it appears Mr. Thakore wants to contend that the statutory provision of sec. 6 applies unequally to persons residing in the area for which a Commissioner of Police has been appointed and areas elsewhere and it thus violates the constitutional guarantee and therefore the provision that authorises the Commissioner of Police to empower by a general order a police officer not below the rank of Sub-Inspector of Police to do the various things mentioned in the said section should be struck down. (2) Unguided and arbitrary powers are given to Police Commissioner in authorising the issue of general order empowering a police officer not below the rank of a Sub-Inspector to do all the acts mentioned in the said section. The Legislature has not provided any guiding principles not only in that section but also in the whole of the Act as to how the right shall be exercised. The Legislature has not provided any guiding principles not only in that section but also in the whole of the Act as to how the right shall be exercised. The submission in our view would cover the contention that if it were to be held that the said statutory provision itself is not enacting a discriminatory rule of law it would in any case enable unequal or discriminatory treatment to be accorded as the Legislature has vested a discretion in the Police Commissioner by this provision in sec. 6 without laying down any policy or disclosing any intelligible purpose and has thus vested in the authority unguided and arbitrary powers enabling him to discriminate Clause (i) of sub-sec. (1) of sec. 6 inasmuch as it gives to the Commissioner of Police unrestricted authority to issue the general order should be held to be ultra vires Article 14. (3) Discrimination results between the accused who are tried under the Bombay Prevention of Gambling Act and those who are tried under other penal Acts inasmuch as the presumption against the accused is drawn under section 7 of the Act if the raid is made by the Police Officer under the authority of the general order given under sec. 6 (1) (i ). Therefore sec. 6 (1) (i) is ultra vires Article 14 of the Constitution so far as it empowers the issue of general order. We will consider these contentions in the order stated. ( 8 ) THE first ground urged is that the Legislature by enacting sec. 6 has created statutory discrimination between persons residing in the area where the Commissioner of Police is appointed or the area which by a special notification the State Government notifies under clause (iii) of sub-sec. (1) of sec. 6 and persons residing elsewhere. Mr. Thakores argument was that residents in the area where the Commissioner of Police is appointed or in the specially notified area are differently treated from those in other areas because people in the area where the Commissioner of Police is appointed or any areas specially notified do not get the same or equal protection of law. In the area where the Commissioner of Police is appointed the Commissioner of Police is authorised to empower any police officer not below the rank of a Sub-Inspector to do all the acts contemplated by sec. In the area where the Commissioner of Police is appointed the Commissioner of Police is authorised to empower any police officer not below the rank of a Sub-Inspector to do all the acts contemplated by sec. 6 of the Act by a mere general order while in the case of other areas the police officer even if he had reason to suspect that a house room or place was used as a common gaming house cannot do so without a special warrant from the higher authority empowered by the section and the higher authority can only issue a special warrant in respect of a particular case and that too only after himself being satisfied on making such inquiry as he may deem necessary that there were good grounds to suspect that the particular house room or place for which the warrant was asked for was used as a common gaming house. When a police officer is authorised by a general order by the Commissioner of Police or the District Magistrate in a notified area no question about the Commissioner of Police or the District Magistrate being first satisfied in that respect arises. The police officer so authorised is not bound to go to the Commissioner of Police or the District Magistrate before raiding a place to satisfy first the Commissioner of Police or the District Magistrate as the case may be as required in the case of a special warrant. He can exercise all the wide powers under the said section any time in respect of any place which he himself has reason to suspect is used as a common gaming house. The police officer who could be so authorised need not be an officer higher in rank than a mere Sub-Inspector who cannot be deemed to have the sense of responsibility of the kind the higher officer would be expected to have. As such the residents of the place where the Commissioner of Police is appointed or of the notified area are exposed to greater danger of the wide powers being misused and even an honest resident stands exposed to such misuse without the protection of the scrutiny and screening to be made by the higher authority in places elsewhere. To emphasise his arguments Mr. To emphasise his arguments Mr. Thakore pointed out that the danger is all the greater as there are no provisions made by the Legislature to guide the Commissioner of Police or the District Magistrate as the case may be as to officers of what standing or experience such wide powers will be given by the general order or for what area or in what kind of places the empowered officer shall operate or to what length of time by such authority he will be so empowered. Exhibit 3 which is the order in the present case clearly shows that no restrictions whatever as to time locality kinds of places or persons are mentioned. The officer so authorised can therefore operate and exercise the wide powers at his free will the only statutory restriction being that he may have to establish after the event that he had reasons to suspect that the house or place was being used as a common gaming house. This statutory provision even if it is meant to be a protection is a slender one compared to the other. Therefore so far as the areas other than where the Police Commissioner is appointed or the notified areas are concerned the citizen in any event gets the double protection under this very same provision of law. ( 9 ) MR. G. T. Nanavati the learned Assistant Government Pleader appearing on behalf of the State faintly made an attempt to submit that there is no such differential treatment created by the statutory provision. We however find no substance in his submission. There is no doubt that the statutory provisions of sec. 6 as they stand apply unequally to citizens in the areas where the Commissioner of Police is appointed or the area notified and these residing elsewhere. There is justification in what Mr. Thakore has argued that the effective protection of law enacted by this section in respect of special warrants under which only a police officer could be authorised in areas other than those where the Commissioner of Police is appointed or areas in respect of which notification is issued is denied to those residing in the areas where the Commissioner of Police is appointed or areas in respect of which notification is issued. But now it is settled law that equal protection of laws guaranteed by Article 14 is not an unqualified guarantee and that the principle of equality does not take away from the state the power of classifying persons for legitimate purposes and further that equal protection can only mean the right to equal treatment under similar circumstances or to persons similarly situated. At the same time it is also now well established that this power is not unrestricted. A long array of decisions of the Supreme Court have now crystalised the import and amplitude of Article 14 and it is unnecessary for us to embark on a discussion thereof on our own. It would be sufficient to point out that in the decision of Jyoti Pershad v. Administrator for the Union Territory of Delhi and others A. I. R. 1961 S. C. 1602 on which Mr. Thakore seemed to rely for his various submissions the learned Judges of the Supreme Court have considered the effect of various decisions of the Supreme Court on the subject and have summarised the principles or rules of guidance gathered from those decisions for the interpretation of Article 14 over again on a slightly different line than the one done by Das C. J. in Ramakrishna Dalmia v. S. R. Tendolkar A. I. R. 1958 S. C. 538. In the summary made by Ayyangar J. in Jyoti Pershad v. Union Territory of Delhi (supra) the first principle laid down is that if the statute itself or the rule made under it applies unequally to persons or things similarly situated it would be an instance of a direct violation of the constitutional guarantee and the provision of the statute or the rule in question would have to be struck down. Now this test covers the contention No. 1 raised by Mr. Thakore and Mr. Thakore tried to rely upon this firmly established principle. But we are afraid it cannot come to the help of the present appellants. The important ingredient of this principle to be noticed is that the statute must apply unequally to persons similarly situated. Now can it be said that the impugned provisions of sec. 6 create a classification which is not reasonable or that they are tried to be applied unequally to persons similarly situated ? In our view that is not so. The important ingredient of this principle to be noticed is that the statute must apply unequally to persons similarly situated. Now can it be said that the impugned provisions of sec. 6 create a classification which is not reasonable or that they are tried to be applied unequally to persons similarly situated ? In our view that is not so. In order to determine the reasonableness of classification the Court has to take various factors into consideration. The Court has to ascertain the policy underlying the statute and the purpose or the object intended to be achieved by it. This the Court has to ascertain from the examination of its title the preamble and the provisions and sometimes having a look into the history of the legislation. After having ascertained the policy and purpose of the Act the Court has to apply the now well established dual test in examining its validity (a) Is the classification rational and based on an intelligible differentia which distinguishes persons that are placed in one group from those who are kept out and (b) Has the basis of differentiation any rational nexus or relation with the policy and object of the statute If both these tests are satisfied the provision must be held to be valid. The consideration as to whether the same result could not have been better achieved by laying down a different classification does not fall within the scope of the judicial enquiry. ( 10 ) MR. Thakore conceded that the State has the right to make classifications but he urged that the classification sought to be made in the present case is not a reasonable classification as it has no nexus with the object or purpose of the Act. He argued that even if we look to the preamble of this Act we find that it only says Whereas it is expedient to consolidate and amend the law for the prevention of gambling in the State of Bombay. . . The purpose or object therefore was only to a mend and consolidate the law relating to gambling. Therefore according to him the preamble did rot indicate any purpose or object which would justify giving a different treatment or protection of law to the citizens of the two areas aforesaid. . . The purpose or object therefore was only to a mend and consolidate the law relating to gambling. Therefore according to him the preamble did rot indicate any purpose or object which would justify giving a different treatment or protection of law to the citizens of the two areas aforesaid. However the governing object at the relevant time to our mind that can be gathered from the preamble is the prevention of gambling in the State of Bombay and for that purpose to consolidate and amend the law to achieve that purpose. It is however to be remembered that sec. 6 as it existed when this Act was enacted was a different provision. This Act was amended from time to time to suit the requirements of the time and to make it more and more effective to achieve the object. The provision in sec. 6 authorising the Commissioner of Police to empower a police officer not below the rank of a Sub-Inspector by a general order was introduced in sec. 6 for the first time in 1936 and since then it has existed inspite of the fact that the Act came in for several amendments year after year. It is obvious that in large cities particularly industrial cities which attract a floating population also from all stratas of society and where this evil of gambling was found to be rampant and on the increase that this far reaching power was thought fit to be given in its wisdom by the Legislature in order to achieve the object for which this legislation existed. A Police Commissioner is appointed in important and large cities with large population of the nature described hereinabove which pose complex and difficult problems to the police administration for maintenance of law and order. A Police Commissioner is a top ranking officer of experience and high qualification and the Legislature thought fit to invest him with the power to issue the general order authorising selected officers under his jurisdiction to do all the acts under sec. 6 in order to achieve the object of the statute. The basis of such classification is geographical which is permissible in law. The problems of enforcement of law may be different in different part of the State or different local areas so as to justify the special provisions of law. 6 in order to achieve the object of the statute. The basis of such classification is geographical which is permissible in law. The problems of enforcement of law may be different in different part of the State or different local areas so as to justify the special provisions of law. The differentiation can be based on difference in local conditions and the need for the carrying into effect of the object and policy of an enactment. It would therefore be valid basis for classification if need for more effective or speedier action by the authority (police) is found necessary in a particular area and has a reasonable nexus with the object sought to be achieved by the legislation. The language of sec. 6 clearly indicates that the intention of the Legislature in enacting the impugned provision is to more effectively curb gambling and prevent delays and consequent failures in the achievement of the object; therefore there is nexus with the object of the statute. It is also obvious that this differentiation is made to meet different conditions existing in the particular geographical area like large cities with Commissioners of Police at its head and other areas. This power was vested only in the Commissioner of Police a high official who could be relied upon to use his powers discriminately. Having regard to all these facts there is no doubt in our mind that persons residing in the area where a Commissioner of Police is appointed and elsewhere cannot be said to be similary situated. The basis of classification introduced by this provision by the Legislature is geographical and the differentiation is based on the respective requirements of the two categories of areas the local conditions and needs for the carrying into effect of the object and policy of the statute being different in the two respective areas. This classification therefore cannot be challenged on the ground of being unreasonable nor on the basis that there is no reasonable nexus with the object and purpose of the statute. Mr. Thakores twofold contention therefore that the residents of these two respective areas must be held to be similarly situated and that basis of the classification has no nexus with the object of the statute has no merit. This disposes off the first contention raised by Mr. Thakore against the constitutionality of the impugned provision. Mr. Thakores twofold contention therefore that the residents of these two respective areas must be held to be similarly situated and that basis of the classification has no nexus with the object of the statute has no merit. This disposes off the first contention raised by Mr. Thakore against the constitutionality of the impugned provision. ( 11 ) THE second contention raised is mainly based on the ground that even if the classification is held to be reasonable the authority vested in the Commissioner of Police is such that it would enable the Police Commissioner to mete out unequal or discriminatory treatment as the Legislature has not laid down while giving such extra-ordinary authority any policy or guiding principle. In support of this contention Mr. Thakore relied upon another principle laid down by Ayyangar J. speaking for the Supreme Court in Jyoti Pershad v. Union Territory of Delhi (supra) which is as follows:- (2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the Legislature vests a discretion in an authority be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose thus clothing the authority with unguided and arbitrary powers enabling it to discriminateonce again we find that this principle laid down by the Supreme Court cannot come to the support of the contention raised by Mr. Thakore because there also the essential ingredient of the principle is that if the enactment enables an unequal or discriminatory treatment accorded to persons similarly situated. Now it is very important again to note that the test to be applied while considering this contention would be as to whether the Police Commissioner in the exercise of his discretion would be enabled to discriminate or to give different treatment to persons similarly situated. We are unable to envisage any such occasion arising in the exercise of this particular authority vested in the Police Commissioner. We are unable to envisage any such occasion arising in the exercise of this particular authority vested in the Police Commissioner. By this power vested in the Police Commissioner he is only authorised to select his subordinate officers not lower in rank than Sub-Inspector and clothe each of them by general order with the powers contemplated by sec. 6. Now once such subordinate officers are clothed with those powers by respective general orders there can hardly arise any occasion of any discriminatory treatment on the part of the Commissioner of Police to any of the citizen within his jurisdiction. This power therefore vested in the Police Commissioner vis-a-vis the citizens within the jurisdiction would act the same way and no question of any discrimination would arise. Mr. Thakore conceded that that would be so. But then he argued that the discrimination would arise in another manner. His submission was that as no guiding principles at all were given the Police Commissioner was free to give general authority to a Sub-Inspector who may not have any sufficient experience and he may also give such power to Inspectors who may have better experience. The sense of responsibility in the two sets of officers would naturally be different and as such would act differently in the exercise of the authority given to them and this would amount to discrimination We are unable to see any merit in this submission. We are afraid that this is not the angle from which the test has to be applied at all. As we have already observed the Police Commissioner is the executive head in confidence of the State a man highly qualified and experienced and certainly once the Legislature had in its wisdom left the discretion to a particular authority it obviously had thought that the authority was worthy of its confidence and the presumption therefore would be that the discretion will not be abused. But apart from that there is the other legal position which is also to be taken into account and that again is to be found from the decision of Jyoti Pershad (supra) wherein Ayyangar J. summarised two more principles which in our view are a complete answer to the argument of Mr. But apart from that there is the other legal position which is also to be taken into account and that again is to be found from the decision of Jyoti Pershad (supra) wherein Ayyangar J. summarised two more principles which in our view are a complete answer to the argument of Mr. Thakore:-IT is manifest that the above rule would not apply to cases where the Legislature lays down the policy and indicates the rule or the line of action which should serve as a guidance to the authority. Were such guidance is expressed in the statutory provision conferring the power no question of violation of Art. 14 could arise unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case there might be a transgression by the authority of the limits laid down or an abuse of power but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of Art. 14 but as really being beyond its power. It is not however essential for the legislation to comply with the rule as to equal protection that the rules for the guidance of the designated authority which is to exercise the power or which is vested with the discretion should be laid down in express terms in the statutory provision itself. The Saurashtra Case would seem to lay down the principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied but leaves the selective application of the law to be made by the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and therefore obnoxious to article 14. (Kedar Nath v. State of West Bengal A. I. R. 1953 S. C. 404 ). It is not difficult now to see in the present case that such guidance is to be found in the very purpose and the policy of the enactment which was to control and eradicate as far as possible the social evil of gambling and further the provisions of sec. It is not difficult now to see in the present case that such guidance is to be found in the very purpose and the policy of the enactment which was to control and eradicate as far as possible the social evil of gambling and further the provisions of sec. 6 itself would imply that the Commissioner of Police would so exercise his discretion that only such subordinate officers will be clothed with the powers by a general order who would understand the responsibility of acting on their own without the precautionary step being taken as in the case of a special warrant. Under these circumstances we are not able to uphold the second contention of Mr. Thakore. ( 12 ) THE third submission is directed against sec. 7 of the said Act and the only ground is that it provides a special and a different rule of evidence or procedure in the case of persons tried for offences under the provisions of this Act and that this differentia is not justifiable and thus offends against the provisions of Article 14. We are not able to accept this submission also. On the principles which we have discussed the State is entitled to provide special procedure and rules of evidence for prosecutions in respect of certain class of offences provided such differentiation is reasonable and has relation to the object and purpose of the legislation. Sec. 7 provides a special rule of evidence in respect of a class of persons and things when they are in a place which is raided by a police officer empowered by a general order or by a special warrant under sec. 6 and when an instrument of gaming has been seized from such premises. It further raises a presumption in respect of the premises also. There is no doubt therefore that this different rule of evidence is made applicable to a group of persons but is based on an intelligible differentia and it would hardly require any stressing to show that it has a direct relation to the object of the statute. Time and again the Supreme Court has upheld such special rules either of procedure or of evidence where they are found to fulfil the two way test disclosed above. We have no hesitation therefore in rejecting this submission also. Time and again the Supreme Court has upheld such special rules either of procedure or of evidence where they are found to fulfil the two way test disclosed above. We have no hesitation therefore in rejecting this submission also. ( 13 ) WE have carefully examined the challenge made to the vires of both secs. 6 and 7 and in our judgment there are no grounds to come to the conclusion that either of the sections offends in any manner against the provisions of Article 14. ( 14 ) THIS takes us to the consideration of the case on merits. But there also the appellants have raised contentions of law and we now proceed to consider them. ( 15 ) MR. Thakore made the following three submissions:- (I) The facts and circumstances established in this case would not permit the raising of the presumption under sec. 7 of the Act and the learned Magistrate was in error in convicting the appellants on the basis of such a presumption raised in favour of the prosecution. (II) If such a presumption cannot be raised there is no evidence whatever on the record to enable the Court to hold that any of the appellants was guilty of any of the offences with which they were charged. (III) In any case the conviction of appellant No. 1 (accused No. 1) under sec. 4 (a) of the said Act cannot be sustained. We shall consider the submissions seriatim. ( 16 ) THE first question for us to take into consideration is when does the presumption arise under sec. 7 and in repect of what. On the analysis of sec. 7 we find that (1) the presumption would arise in either of the two categories of cases:- (i) when any instrument of gaming has been seized in any house room or place entered under sec. 7 and in repect of what. On the analysis of sec. 7 we find that (1) the presumption would arise in either of the two categories of cases:- (i) when any instrument of gaming has been seized in any house room or place entered under sec. 6 or on the person of any one found therein (ii) 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 grounds for suspecting that the thing so seized was an instrument of gaming; (2) The presumption that then arises is in respect of the place and also persons found therein; (3) The presumption that actually arises is that the seizure of such instrument or thing shall be evidence until the contrary is proved that:- (A) such house room or place is used as a common gaming-house and (b) the persons found therein were then present for the purpose of gaming although no gaming was actually seen by the officer entering the premises under the authority of sec. 6. There is a proviso to this section which only lays down that notwithstanding any defect in the warrant or order in pursuance of which the premises was entered under sec. 6 if the Court considers that the defect was not very material the presumption would still arise. Of course in this case we are not concerned with the proviso. The analysis would thus show that in order to enable the raising of the presumption in favour of the prosecution the prosecution has to establish (a) that what was seized at the time of the raid is an instrument of gaming when such raid is made by a person authorised under sec. 6 either from the premises itself or from the person of the individuals present there or (b) if the articles so seized are not per se instruments of gaming then the Court has to be satisfied that the police officer who entered such premises had reasonable grounds for suspecting that the thing so seized was an instrument of gaming. So in the first case the thing seized must on its face has to be shown to be an instrument of coming. So in the first case the thing seized must on its face has to be shown to be an instrument of coming. In the other case the Court has to be satisfied that the police officer had reasonable grounds to suspect that the thing so seized was an instrument of gaming. ( 17 ) IN the present case the learned Assistant Government Pleader frankly conceded that he cannot claim that the facts of the prosecution case would fall within the first category of cases. He agreed that the cards and money seized at the place of the raid by themselves cannot be held to be instruments of gaming. We think that this concession is fairly made because many Courts including this Court have held that the mere fact of find of cards and money exposed at the place of the raid or even on the person of those present there by itself does not make them instruments of gaming. Money and cards can be there for an innocent game and not necessarily for the purposes of playing a game which would be of the nature of wagering or betting. Thus it is clear that the present case falls in the second of the two categories and if the prosecution wants to claim the benefit of the presumption under sec. 7 it has to establish the the various ingredients as pointed out aforesaid. ( 18 ) THIS takes us to the examination of the evidence on record. As this is a case tried under the summary procedure we have not got before us the full evidence given by the various witnesses in the trial Court and we have only got the statements of these witnesses as incorporated in the judgment. In any case it will be our endeavour with whatever material that is there on the record to see whether there is enough material on the record to entitle the Court to raise the presumption in favour of the prosecution under sec. 7. Mr. Thakore on behalf of the appellants urged that the evidence as it stands does not at all establish the facts which would entitle the raising of such a presumption. (His Lordship after discussing the facts further stated :) ( 19 ) MR. Thakore stressed that in order to enable the prosecution to rely upon the presumption arising under sec. Mr. Thakore on behalf of the appellants urged that the evidence as it stands does not at all establish the facts which would entitle the raising of such a presumption. (His Lordship after discussing the facts further stated :) ( 19 ) MR. Thakore stressed that in order to enable the prosecution to rely upon the presumption arising under sec. 7 it will have to be shown to the satisfaction of the Court that the Police Inspector Mankad had reasonable grounds to suspect that these cards and the money that were found and attached at the time of the raid were instruments of gaming and that the evidence even if taken at its best does not go to establish these ingredients. Now it would as well be convenient to note at this stage the definitions of gaming and instruments of gaming. So far as the definition of gaming is concerned only a part of the definition is relevant for our purposes and it is as follows :in this Act gaming includes wagering or betting except wagering or betting upon a horse-race when such wagering or betting takes place. . . . . . . . . . . This definition as can be seen is an inclusive definition and it only says that gaming would include wagering or betting. Instruments of gaming is defined as follows:- in this Act the expression instruments of gaming includes any article used or intended to be used as a subject or means of gaming any document used or intended to be used as a register or record or evidence of any gaming the proceeds of any gaming and any winnings or prizes in money or otherwise distributed or intended to be distributed in respect of any gaming. This definition is also an inclusive definition. But what we have to note is that any article actually used or intended to be used as a subject or means of gaming would fall within the purview of this definition. Similarly money which could be shown to be the proceeds of any gaming would also become an instrument of gaming. ( 20 ) MR. Thakore argued that having regard to the definitions and the provisions of sec. 7 it would not be enough for the prosecution to establish through the mouth of P. I. Mankad that he thought that the game that was being played was gambling. ( 20 ) MR. Thakore argued that having regard to the definitions and the provisions of sec. 7 it would not be enough for the prosecution to establish through the mouth of P. I. Mankad that he thought that the game that was being played was gambling. As the evidence stands it can only be said that the game that was being played was in the opinion of P. I. Mankad gaming. That would not be sufficient in law. Mr. Thakore urged that the Police Officer should have deposed actually that he had reasonable grounds for suspecting that the cards and money were actually the instruments of gaming. Then only the Court would be in a position to be satisfied that he had reasonable suspicion. The Police Inspector had not so deposed and had merely expressed his opinion that the appellants were gaming. According to him such opinion evidence would not be admissible. The police officer did not even claim that he had actual experience of such games being played by way of gaming. The learned Advocate submitted that the prosecution had therefore established only the following circumstances:-THAT the appellants were seen sitting in a room playing a game of cards and also with stake that some money was seen being collected by one of them i. e. appellant No. 2 and that a panch-witness and the P. S. I. had heard the word Andar-Bahar being used by one of the appellants. The argument runs that these circumstances were not enough to establish the required ingredients of the second part of sec. 7 to enable the raising of the presumption. He relied for his contention on the decision of a Division Bench of this Court in Criminal Appeal No. 565 of 1961 decided on November 12 1962 (State v. Kantilal Nanubhai and others ). That was an appeal against the order of acquittal. Before the High Court it was contended on behalf of the State that the second part of sec. 7 would apply to the facts and circumstances of the said case and the presumption should have been drawn. That was an appeal against the order of acquittal. Before the High Court it was contended on behalf of the State that the second part of sec. 7 would apply to the facts and circumstances of the said case and the presumption should have been drawn. The learned Judges of the High Court proceeded to answer the question whether the things seized be the police officer from the premises an question were such that Court would be satisfied that the police officer who entered the premises in question had reasonable grounds for suspecting that they were instruments of gaming in other words articles either used as a subject or means of gaming or intended to be used as a subject or means of gaming. The learned Judges observed that cards and coins by themselves and without anything more could not be said to be articles necessarily used or intended to be used as a subject or means of gaming. That proposition was conceded by the learned Assistant Government Pleader in that case as has been in the present. However in the said case the following circumstances were relied upon by the prosecution to establish facts entitling them to the benefit of the presumption. They were as follows:- (1) The finding of cards and coins within the circle in which the nine accused were sitting at the time of the raid (2) the joker card with certain writings thereupon and a pencil and (3) the fact of the accused having thrown away the cards and coins and the fact of their having extinguished the candle which was burning in the centre as soon as the police party was seen by them. The learned Judges observed that the writings on the joker card however were in some sort of a code and no attempt was made to decipher that code in order to ascertain what exactly those writings were. If the writings had been deciphered and they constituted a record either of the bets or of the winnings or profits it would be a circumstance which would have contributed towards the prosecution case. If the writings had been deciphered and they constituted a record either of the bets or of the winnings or profits it would be a circumstance which would have contributed towards the prosecution case. But that being not so they were not prepared to consider it as a circumstance which would go to help the prosecution to establish to the satisfaction of the Court that the officer raiding the place had reasonable grounds to suspect the articles seized to be used for purposes of gaming. The appeal was dismissed. . ( 21 ) MR. Thakore tried to press upon us the submission that the circumstances in the present case are very much in a line with those that existed in the said case. He argued that in the present case also the only circumstances established were that cards and money were found within the circle where the appellants had been found playing and that some amount was recovered from their person. The only other circumstances that are present in the instant case are that an aluminium cup with a small amount of money therein was found with appellant No. 2 and that they had heard the words Andar-Bahar uttered by one of the appellants. These two latter circumstances according to Mr. Thakore would not carry the case of the prosecution any further just as the facts of the find of a pencil and something written on a joker card did not in the case just mentioned above. Just as the scribblings on the joker card were not deciphered or proved to be any evidence of betting etc. in the present case the prosecution has not proved and the Police Inspector made no effort whatever to establish that the game Andar-Bahar was such a game as could be said to be gaming within the meaning of the provisions of the Act. ( 22 ) WE are unable to accept this line of argument to be justified or correct. We do agree that in the circumstances of the aforesaid case the Court could not have come to any other conclusion. But we are unable to agree with Mr. Thakore that the same conclusion should be reached even on the facts of the present case and for very good reasons that we shall presently discuss. ( 23 ) MR. We do agree that in the circumstances of the aforesaid case the Court could not have come to any other conclusion. But we are unable to agree with Mr. Thakore that the same conclusion should be reached even on the facts of the present case and for very good reasons that we shall presently discuss. ( 23 ) MR. Nanavati on behalf of the State submitted that the cards and coins which were found exposed together with the fact that the metal cup in which an amount of Rs. 5-10 was found with appellant No. 2 and particularly the fact that the words Andar-Bahar which is known to be a game of cards for gambling were heard being used are sufficient circumstances and facts to constitute reasonable grounds for the Police Inspector who entered the room under the authority of see. 6 for suspecting that the cards money on the ground and the person of the accused (appellants) and the metal cup with money were instruments of gaming. We find that there is lot of strength in the submission made on behalf of the State. The contention raised on behalf of the appellants that the presumption could have only arisen if the Police Inspector were to depose that the game Andar-Bahar is as a matter of fact gambling and further that he had knowledge of it and which could only have satisfied the ingredients of sec. 7 to enable the presumption to be raised in our opinion goes too far in the circumstances of the present case. It is true that if in this case determination of the question depended only on the opinion of the Police Inspector that the appellants were gambling the prosecution could not have claimed the advantage of the presumption under sec. 7. The Police Inspector certainly could not be said to be an expert and as a matter of that in the case of gambling it cannot be said that anybodys opinion could be entertained in evidence as an opinion of an expert under sec. 45 of the Evidence Act. But here there is something more and positive which we are satisfied would be sufficient reasonable ground for the Police Inspector for suspecting that the things attached were instruments of gaming. 45 of the Evidence Act. But here there is something more and positive which we are satisfied would be sufficient reasonable ground for the Police Inspector for suspecting that the things attached were instruments of gaming. That fact is as pointed out by the learned Assistant Government Pleader the use of words Andar-Bahar by one of the players that definitely indicated that they were playing the game of Andar-Bahar. It is true that the P. I. has not deposed as to how this game of card is gambling or gaming within the meaning of the Act and had it not been for some further fact which comes to the help of the prosecution we would have been inclined to accept the contention raised on behalf of the appellant that the prosecution evidence fell short of the proof of required facts to raise the presumption. That fact is that the game of Andar-Bahar is held and recognised by a Court of Law to be gaming within the meaning of the Act. We have merely to refer on this aspect to the decision of Emperor v. Mahomed Dawood 49 B. L. R. page 603. In the said case also the game concerned was pat or Andar-Bahar. It appears that actually in that case the punter had described that the game that was being played was Andar-Bahar and it was also tried to be explained as to how that game was being played. The learned Government Pleader in that case in order to explain how the game is played and how it amounts to gaming had demonstrated it in Court. It was pointed out that this game inevitably resulted in the banker or the conductor of it making some profit of the game beyond the chances of some other players. Not only that it further disclosed that it was a mere game of chance in which skill had no part to play. The requirement of sec. 7 to enable the presumption to be raised is only this that the Court must be satisfied that the police officer entering in the premises with authority under sec. 6 and who seized the things there had reasonable grounds to suspect that the things seized were instruments of gaming. The requirement of sec. 7 to enable the presumption to be raised is only this that the Court must be satisfied that the police officer entering in the premises with authority under sec. 6 and who seized the things there had reasonable grounds to suspect that the things seized were instruments of gaming. As pointed out hereinabove the game of Andar-Bahar is known to be a game for years to be a game played for gambling and even in the judicial pronouncement it is held to be gaming. Now the picture that emanates from the evidence led before the Court in this case is clear that the appellants were found not only playing with cards and money sitting in a round but they were actually observed staking the money one of them was also seen collecting some money and putting it in an aluminium cup and further that the word Andar-Bahar was actually heard by one of the panchas and the P. I. As pointed out this game Andar-Bahar is notorious as a card game played for gambling or gaming. Under these circumstances there is hardly any justifiable reason for any Court of law not to feel satisfied that the P. I. on seeing this with his own eyes and after hearing actually the word Andar-Bahar which would clearly indicate to the P. I. as to what the game was that was being played had reasonable grounds to suspect that the articles used and which were ultimately seized that is to say the cards and the coins were instruments of gaming. We therefore do not find any justification to come to the conclusion that there was no reasonable ground for the P. I. to suspect that the cards moneys and the metal cup with money seized were articles used or intended to be used as subject or means of gaming. The result is that the learned Magistrate was right in raising the presumption under sec. 7. ( 24 ) THE second contention that was raised by Mr. Thakore depended upon the conclusion that we may reach on the first contention. Now that we have come to the conclusion that the presumption did arise and that the first contention raised on behalf of the appellants could not be sustained this second ground raised does not survive. 7. ( 24 ) THE second contention that was raised by Mr. Thakore depended upon the conclusion that we may reach on the first contention. Now that we have come to the conclusion that the presumption did arise and that the first contention raised on behalf of the appellants could not be sustained this second ground raised does not survive. X X X ( 25 ) AS the presumption does arise in the present case under sec. 7 and as the appellants Nos. 2 to 13 were found in the room in which the raid was made until the contrary is proved it is to be presumed that they were present for the purposes of gaming. As we have seen the law goes as far as laying down that though no gaming may be actually seen by the officer raiding still their very presence would be presumed for the above purpose. In this case the trial Court was satisfied and so are we that there are no facts or circumstances established on behalf of these appellants to prove to the contrary. The result is that their appeals cannot stand and the order of the learned Magistrate against them has to be confirmed. We shall order accordingly. ( 26 ) THAT takes us to the third ground in respect of appellant No. 1. The prosecution alleged that the room or the premises in which the raid was made was in possession or occupation of appellant No. 1 even on the date of the raid and that as the presumption under sec. 7 arises it will also have to be presumed that the room in which those instruments of gaming were seized was used as a common gaming house and though appellant No. 1 was not present actually at the time of the raid he must be held to be guilty under sec. 4 (a) as the person who kept or used the room for the purpose of a common gaming house. Mr. Thakore on behalf of appellant No. 1 urged that though the presumption arising under sec. 7 may extend to sec. 5 it could not be said to extend to sec. 4 also without proving something more. 4 (a) as the person who kept or used the room for the purpose of a common gaming house. Mr. Thakore on behalf of appellant No. 1 urged that though the presumption arising under sec. 7 may extend to sec. 5 it could not be said to extend to sec. 4 also without proving something more. It may be that that something more is some slight it reliable evidence to carry conviction to the mind of the Court that E though he was absent he must be said to be keeping or using that room for the purposes of the common gaming house. The decision in 49 B. L. R. page 606 itself would show that that is the view that has been taken by the learned Judges of the Bombay High Court In our judgment the presumption under sec. 7 certainly cannot extend to sec. 4 for obvious reasons. Sec. 7 only raises the presumption that the place which was raided and from which the instruments of gaming were seized was a common gaming house. But that is not sufficient to establish the guilt of appellant No. 1 under sec. 4. In order to hold him guilty under sec. 4 the prosecution has also further to establish that that common gaming house was either kept or used by the appellant No. 1 on the date of the raid. The question therefore is whether it has been proved by the prosecution as to whether on the date of the raid the appellant No. 1 is proved to be keeping or using the said room. The prosecution for proving the case against accused No. 1 tried to rely mainly on the evidence of Chaturbhai Jamnabhai Patel the owner of the chawl in which the room concerned is situated and witness Devmani Natoo. So far as P. I. Mankad is concerned he has merely said that accused No. 1 was not present but he had found that accused No. 1 was in possession of that house and therefore he had arrested him. This cannot be considered as good evidence to prove the fact of appellant Now 1 actually either keeping or using the particular room. x x x ( 27 ) FROM this evidence Mr. This cannot be considered as good evidence to prove the fact of appellant Now 1 actually either keeping or using the particular room. x x x ( 27 ) FROM this evidence Mr. Nanavati urged before us that there was ample evidence to show that appellant No. 1 had kept this room on rent from Chaturbhai in 1960 and that there was no evidence on the record which would show that he had as a matter of fact ceased to be the tenant of that place and that a mere show was tried to be created that the tenancy or occupation of the room had been transferred to Devmani in December 1963. Therefore though he was absent on that day of the raid as a matter of fact the room was in occupation of appellant No. 1 and it must be held that he was keeping or using that room for the purpose of common gaming-house It appears that this trend of argument had appealed to the learned Magistrate. We however find it difficult to sustain the conviction of appellant No. 1. The prosecution evidence itself discloses in no uncertain manner that though the premises had been rented in 1960 by the appellant No. 1 from Chaturbhai in November 1963 appellant No. 1 had definitely told the owner Chaturbhai that he did not want to continue in occupation or tenancy of that room any further. Not only that but since December this landlord had actually entered the tenancy of the premises in the name of witness Devmani. It is true that Devmani is a private servant of appellant No. 1 but the mere fact that he is the servant of appellant No. 1 and that it was at his instance that the landlord had transferred the tenancy in the name of Devmani may only raise some suspicion. But suspicion cannot take the place of proof more so in a case where presumptions arise against an accused person. Courts have to be extremely cautious in scrutinizing and accepting the evidence particularly where presumptions arise against accused persons under the special provisions of law. But suspicion cannot take the place of proof more so in a case where presumptions arise against an accused person. Courts have to be extremely cautious in scrutinizing and accepting the evidence particularly where presumptions arise against accused persons under the special provisions of law. It would not be right for the Court to infer that merely because of the circumstances referred to above prosecution had succeeded in proving that as a matter of fact on the date of the raid appellant No. 1 had continued to keep or use that room for the purpose of a common gaming-house. These circumstances can also give rise to an equally strong inference that it is quite probable that as there had been a prior case against this club and its members appellant No. 1 might have thought it advisable not to continue any more to be the tenant or to keep those premises with him and Devmani who had nothing much to lose might have shown his inclination to take over the premises with a view to earn illegal gain out of that club which obviously was made use of by its members for gaming. Even the entries produced by the landlord would show that the rent was actually received and entered on behalf of Devmani. There is nothing whatever to show that in the absence of Devmani as he had been imprisoned it was appellant No. 1 who made the payment. For aught we know any other member might have made the payment in order to allow the club to exist in that premises. The prosecution has not established through the landlord which they could have and as a matter of fact the Court would expect the prosecution to establish that though the tenancy was transferred in the name of Devmani actually appellant No I continued to pay the rent or receive the rent receipt. The prosecution has stopped short at a particular stage though it was within their power and as a matter of fact which they ought to have proved that inspite of this transfer made he had continued in occupation or possession of these premises. The prosecution has stopped short at a particular stage though it was within their power and as a matter of fact which they ought to have proved that inspite of this transfer made he had continued in occupation or possession of these premises. The landlord could have proved as the witness used to visit this place that though appellant No. 1 had expressed his desire to vacate the premises he had actually continued to be in possession and had merely the tenancy transferred in the name of Devmani. There is nothing in Devmanis evidence in our view which could be said to legally supply proof of the fact that appellant No. 1 had as a matter of fact continued to be in occupation or possession of or that he was keeping or using the room for the purposes of running that club. Mr. Nanavati the learned Assistant Government Pleader tried to rely upon the fact which came out of the cross-examination of the defence witness Sejpal that he was the person who had been employed by appellant No. 1 to write the books of account and urged that it would go to show that the club was being still run and controlled by appellant No. 1. We are unable to come to that conclusion. It may be that in 1960 when the club was started he was employed by appellant No. 1 but there is nothing in the cross-examination which would show that even at the date when the raid was made appellant No. 1 had continued to keep the premises for the purposes of that club. The question is whether at the date of the raid it is proved that appellant No. 1 was keeping or using that room for the purposes of a gaming-house. With respect therefore we disagree with the learned Magistrate that the prosecution had succeeded in proving that appellant No. 1 is guilty under sec. 4 ( 28 ) AS a result the appeal is partially allowed. The order of conviction and sentence passed by the learned Magistrate against appellant No. 1 is set aside and he is ordered to be acquitted. His bail bond to be cancelled. The order of conviction and sentence passed against the rest of the appellants i. e. appellants Nos. 2 to 13 is confirmed and their appeal is dismissed. They are ordered to surrender to their bail. His bail bond to be cancelled. The order of conviction and sentence passed against the rest of the appellants i. e. appellants Nos. 2 to 13 is confirmed and their appeal is dismissed. They are ordered to surrender to their bail. Appellant No. 1 acquitted: Appeal of other accused dismissed. .