STATE OF GUJARAT v. JETHANAND SHAMALDAS — 1967 DIGILAW 126 (GUJ)

V. R. SHAH, J. ( 1 ) THESE two appeals are filed by the State of Gujarat against the orders of acquittal passed in favour of the respondents by the Sessions Judge Bhavnagar in Criminal Appeals Nos. 145 of 1964 and 121 of 1964 filed against the orders of conviction and sentence passed against the respondents by Mr. D. A. Chhaya Judicial Magistrate First Class Bhavnagar convicting respondent No. 1 in Criminal Appeal No. 444 of 1965 and respondent No. 1 in Criminal No. 442 of 1965 for the offence punishable under sec 4 of the Bombay Prevention of Gambling Act 1887 (hereinafter referred to as the Act) and the rest of the respondents for the offence punishable under sec. 5 of the Act. ( 2 ) THE facts in both the cases are similar and the same points of law arise in these two appeals. They are therefore heard together and this judgment will dispose of both these appeals. ( 3 ) IN Criminal Appeal No. 442 of 1965 there are 20 respondents. The Police Sub-Inspector Shaikh obtained a Special Warrant under sec. 6 of the Act from the District Superintendent of police at Bhavanagar on 8 January 1964 and raided the premises mentioned in the Warrant and found the present 20 respondents present in that premises. Out of these 20 respondentn 12 pepsons were actually playing with cards and counters. Respondent Nos. 1 and 2 were sitting on chairs near a table and 7 persons including the punter were found watching the game of those 12 persons. The Police Sub-Inspector seized the cards counters monies and other articles from the premises and thereafter a case was submitted to the Judicial Magistrate First Class Bhavnagar on the allegation that the premises raided by the P. S. I. were a common gaming house and that the respondent No. 1 was the keeper thereof and that the respondents Nos. 1 to 20 were present in that gaming house for the purpose of gaming. The learned Magistrate raised a presumption under sec. 7 of the Act and came to the conclusion that the charges against the respondents are proved. Respondent No. 1 was convicted for the offence punishable under sec. 4 of the Act and was sentenced to pay a fine of Rs. 200. 00. All the 20 respondents were convicted for the offence punishable under sec. 7 of the Act and came to the conclusion that the charges against the respondents are proved. Respondent No. 1 was convicted for the offence punishable under sec. 4 of the Act and was sentenced to pay a fine of Rs. 200. 00. All the 20 respondents were convicted for the offence punishable under sec. 5 of the Act and each one of them was sentenced to pay a fine of Rs. 200. 00. An appeal was filed by the 20 respondents to the Sessions Judge at Bhavnagar who held that the Special Warrant obtained by the Police Sub-Inspector was defective and therefore not valid. He therefore came to the conclusion that no presumption could be raised under sec. 7 of the Act. He further came to the conclusion that there was no reliable evidence to show that the respondents were guilty of the offences for which they were convicted. He therefore allowed the appeal and acquitted all the respondents. ( 4 ) IN Criminal Appeal No. 444 of 1965 there are 8 respondents. Police Inspector Mohite obtained a special warrant under sec. 6 of the Act on 4th April 1964 from the Sub-Divisional Magistrate Bhavnagar and under the authority of that warrant he raided the premises mentioned in the warrant and found 7 persons sitting in a circle in a room. They were respondents Nos. 1 3 4 5 6 and 8 along with the punter. These 7 persons were playing with cards and counters and counters were lying near each of them. Respondent Nos. 2 and 7 were found in another small room in the terrace which was communicating with the room by a door opening in the room from the terrace. The Police Inspector seized cards counters and monies and a case was filed against the 8 respondents in the Court of the Judicial Magistrate First Class Bhavnagar. The learned Magistrate raised a presumption under sec. 7 of the Act and convicted respondent No. 1 for the offence punishable under sec. 4 of the Act and sentenced him to pay a fine of Rs. 260. 00 in default to suffer rigorous imprisonment for one month and also convicted respondents Nos. 2 to 8 for the offence punishable under sec. 5 of the Act and each of them was sentenced to pay a fine of Rs. 200. 00 in default to suffer rigorous imprisonment for one month. 260. 00 in default to suffer rigorous imprisonment for one month and also convicted respondents Nos. 2 to 8 for the offence punishable under sec. 5 of the Act and each of them was sentenced to pay a fine of Rs. 200. 00 in default to suffer rigorous imprisonment for one month. Against their conviction and sentence the eight respondents filed an appeal to the Sessions Judge Bhavnagar. The learned Sessions Judge held that the warrant obtained by the Police Inspector was defective and therefore he declined to raise a presumption under sec. 7 of the Act. The learned Sessions Judge further held that there was no reliable evidence apart from the presumption and accordingly he acquitted all the eight respondents. Pending the hearing of this appeal by the State in this Court respondents Nos. 1 and 4 have died and therefore the appeal abated against them. . . . . . . . . . . . . . . . . . . . . . ( 5 ) THE next contention on behalf of the respondents is that the prosecution has failed to prove that there was sufficient material before the issuing authority on the basis of which it could be satisfied that there are good grounds to suspect the premises to be used was a common gaming house In Criminal Appeal No. 444 of 1965 the Police Inspector has stated that he made a report after verifying the facts that the premises in question were used as a common gaming house. It is stated in his evidence that he was called by the Sub-Divisional Magistrate and he discussed the matter with him for about one hour and thereafter he made a statement on oath before the Magistrate. However the report made by the Police Inspector or the statement made on oath by him has not been produced before the Court. It was therefore urged on behalf of the respondents that there is no material before the Court from which it can be stated that the Sub-Divisional Magistrate was satisfied that he bad good reasons to believe that the premises intended to be raided was used and common gaming house. In Criminal Appeal No. 444 of 1965 the evidence is that the Police Sub-Inspector made a report to the District Superintendent of Police after verifying that the premises are used as a common gaming house. In Criminal Appeal No. 444 of 1965 the evidence is that the Police Sub-Inspector made a report to the District Superintendent of Police after verifying that the premises are used as a common gaming house. He made the report sometime in the morning and at about 4-30 P. M. he obtained the warrant from the District Superintendent of Police. Again there is nothing produced before the Court to show as to whet report was made by the Police Sub-Inspector. It was therefore urged in both the appeals that the prosecution has failed to prove to the satisfaction of the Court that there was material before the issuing authority which satisfied the authority in suspecting that the premises were used as a common gaming house. The learned Sessions Judge has accepted this argument. He has based his decision on certain observations made by the Division Bench of the Saurashtra High Court in A. I. R. 1952 Saurashtra 76 referred to above by us. It should be noted that the proviso to sec. 6 of the Act has been materially amended by Bombay Act No. 14 of 1959. As a result of the amendment the necessity of a complaint being made before the issuing authority concerned which was an essential ingredient of the proviso prior to the amendment has been deleted. Prior to the amendment the issuing authority had to be satisfied by taking into consideration firstly the complaint made on oath before it and secondly such inquiry as the authority may think necessary. It appears from the report of the Saurashtra case that the Magistrate who issued the warrant in that case purported to be satisfied on the basis of the complaint made before him by the Police Sub-Inspector. Now that complaint was also produced in the case and the complaint showed that the Police Sub-Inspector had not made any statement that the premises intended to be raided were a common gaming house. Me had merely stated that the gambling is carried on in that building. It was on account of this circumstance that Saurashtra High Court came to the conclusion that the warrant was defective as the Sub-Inspector did not complain that the premises intended to be raided were a common gaming house. That ruling therefore cannot be applied to the facts of this case in view of the change in law by the amendment of the proviso to sec. That ruling therefore cannot be applied to the facts of this case in view of the change in law by the amendment of the proviso to sec. 6 of the Act. After the amendment it is not necessary that a complaint on oath should be made before the issuing authority. All that is required is for the issuing authority to make such inquiry as it feels necessary. In such case it is clear that what is required is a subjective satisfaction of the issuing authority. The issuing authority need not have any report in writing from anybody. It may make its own inquiry: this inquiry may be oral and no record may have been kept of it. Since the law empowers the issuing authority to act upon whatever enquiry it has made it follows that it is not open to the Court to examine whether there was sufficient material before the issuing authority to enable it to be satisfied that there are good grounds to suspect the premises to be a common gaming house. The Legislature has invested the issuing authority with the powers to issue the warrant if it is satisfied itself; and on the language of the proviso it is clear that the satisfaction is subjective satisfaction of the authority itself and the Court cannot go behind the statement of such satisfaction by the authority and call upon the authority to justify how it was satisfied. This point arose before a Division Bench of this Court in Criminal Appeal No. 699 of 1961 decided by Divan and Vakil JJ. on 20th June 1963. In that case also a contention was raised before the Division Bench on the authority of the Saurashtra Case that there was no information led before the District Superintendent of Police that the house of accused No. 1 was being used as a gaming house. Dealing with this contention the Court observed as follows:the question whether the D. S. P. was properly satisfied or not or the question whether there were sufficient materials before the D. S. P. for being satisfied that there were good grounds to suspect the house to be used as a common gaming- house cannot be gone into by a Court of law. There are numerous decisions interpreting the words is satisfied `is of the opinion etc. There are numerous decisions interpreting the words is satisfied `is of the opinion etc. and all these decisions lay down that when the Legislature uses such words it indicates that it is the subjective satisfaction of the authority concerned which counts and the Court cannot go behind that particular satisfaction of the officer concerned. With respect we agree with this decision of the Division Bench of this Court and accordingly we hold that the Court cannot go behind the expression of satisfaction of issuing authority recited in the special warrants issued under sec 6 of the Act. . . . . . . . . . . . . . . ( 6 ) THE evidence in Criminal Appeal No. 444 of 1965 discloses that in the premises which were raided under the authority of the warrant there were six persons present including the punter and they were found playing a game of cards with counters. No monies were found lying in the circle but monies were found from the persons of the players. The P. S. I. has stated that he knows the game of rummy and he has stated that from the distribution of cards and the manner of playing it can be stated that these six persons were playing rummy. In the other case also that is in Criminal Appeal No. 442 of 1965 in the premises raided there was a card play going on in two circles each consisting of six persons. Seven other persons including the punter were watching the game being played by these 12 persons. Respondents Nos. 1 and 2 were sitting on chairs near a table. There were counters Lying in front of each of the persons who were playing. The person of respondent No. 1 was searched but nothing was found. The person of respondent No. 2 was also searched and some currency notes were recovered which included the marked 10 rupee note given by the police to the punter. In the drawer of the table there were counters of different colours and also small change in one box. Some chits were recovered but there is no evidence to show what the writings in the chits meant and no attempt has been made to show that the chits are instruments of gaming. In the drawer of the table there were counters of different colours and also small change in one box. Some chits were recovered but there is no evidence to show what the writings in the chits meant and no attempt has been made to show that the chits are instruments of gaming. Excluding the punter out of the 7 persons who were watching the game being played the remaining six were also searched by the police and except one person who is respondent No. 16 all the other persons who were watching the game had monies with them and in addition one man had playing cards and one had counters. Respondent No. 16 had neither monies with him nor any other thing with him and nothing was seized from him. ( 7 ) THE learned Assistant Government Pleader contended in each of the appeals that the cards and counters found in each case in the circumstances mentioned in the evidence are instruments of gaming and it was therefore urged that a presumption under sec. 7 of the Act should be raised. For this purpose reliance was placed on a decision of the Bombay High Court in the case of Motiram Gangaram v. State of Maharashtra 68 Bombay Law Reporter page 708 It is a decision by a single Judge of that High Court. It has been held therein as follows:the words instruments of gaming used in sec. 7 of the Bombay Prevention of Gambling Act 1887 mean articles mentioned in sec 6 of the Public Gambling Act 1867 i. e. cards dice gaming tables cloths and boards. Therefore finding of cards in a house entered under sec. 6 of the Bombay Prevention of Gambling Act raises a presumption under sec. 7 of the Act that the house was a common gaming house and the persons found therein were present for the purpose of gaming ( 8 ) ON the authority of this ruling it was urged before us that the find of cards in both the cases amounts to seizure of instruments of gaming. The learned Judge in the Bombay case has considered the provisions of the Public Gambling Act 1867 which is a Central Act. The learned Judge in the Bombay case has considered the provisions of the Public Gambling Act 1867 which is a Central Act. Sec. 5 of the Public Gambling Act authorises a Magistrate of the District or other officer invested with the full powers of a Magistrate or the District Superintendent of Police upon credible information and after such inquiry as he may think necessary has reason to believe that any house walled enclosure room or place is used as a common gaming house to enter the same himself or by his warrant authorise any officer of police of the requisite rank to enter the same. Sec. 6 thereof provides When any cards dice gaming-tables cloths boards or other instruments of gaming are found in any house walled enclosure room or place entered or searched under the provisions of the last proceeding section or about the person of any of those who are found therein it shall be evidence until the contrary is made to appear that such house walled enclosure room or place is used as a common gaming house and that the persons found therein were there present for the purpose of gaming although no play was actually seen by the Magistrate or police officer or any of his assistants. The learned Judge deciding the Bombay case observed as follows:as I said earlier there was already the Central Act namely. the Public Gambling Act 1867 which was in force at the time the Bombay Prevention of Gambling Act was enacted. If we compare the provisions of the Local Act with the Central Act it is found that they are practically similar with minor changes here and there. Sec 6 of the Central Act is also a provision for enabling the presumption to be raised such as in sec. 7 of the Local Act and cards dice gaming table cloths and boards were considered to be instruments of gaming under the Central Act. ( 9 ) THE Legislature therefore in enacting sec. 7 of the Bombay Prevention of Gambling Act must be having these definitions and the provisions of sec. 6 of the Central Act in mind and they must have equated the instruments of gaming with cards dice. ( 9 ) THE Legislature therefore in enacting sec. 7 of the Bombay Prevention of Gambling Act must be having these definitions and the provisions of sec. 6 of the Central Act in mind and they must have equated the instruments of gaming with cards dice. gaming table cloths and boards and did not think it necessary to specifically put them in the section itself or in the definition of that expression as these things or articles could be said to be well known as instruments of gaming. ( 10 ) THE learned Judge thereafter goes on to holdtherefore the words instruments of gaming used in sec. 7 of the Act had a certain meaning which meant certain articles and these articles could be those which have been mentioned in sec. 6 of the Central Act or as given in the various Dictionaries. That therefore should be taken as the accepted meaning of the expression instruments of gaming. With respect we find ourselves unable to agree with this view. Admittedly the Bombay Prevention of Gambling Act was enacted 20 years after the Public Gambling Act was enacted. It is found on a comparison of the provisions of the two Acts that there are material differences in their provisions. The Public Gambling Act does not provide for any definition of the words instruments of gaming. In sec. 4 of the Public Gambling Act it is specifically mentioned that gaming can be with cards dice counters money or other instruments of gaming. In sec. 6 of the Public Gambling Act a specific reference is made to cards dice gaming-tables cloths and boards and upon any such article being found in the premises referred to in sec. 6 a presumption is required to be raised. In the Bombay Prevention of Gambling Act which is enacted 20 years after the Legislature has thought fit to specifically define by an inclusive definition the term instrument of gaming-that is one material departure. In the Bombay Act no specific reference is made at any place as to whether cards dice and other articles are instruments of gaming. Even in sec. 7 of the Bombay Act which is a similar to sec. 6 of the Central Act the Legislature has merely stated about the find of any instrument of gaming but it has not specified any particular article itself. Even in sec. 7 of the Bombay Act which is a similar to sec. 6 of the Central Act the Legislature has merely stated about the find of any instrument of gaming but it has not specified any particular article itself. In our opinion even though the Public Gambling Act was already in existence the Bombay Legislature has thought fit to make changes therein. It is therefore clearly indicated that the Bombay Legislature did not want to follow the pattern stated in the Public Gambling Act in some material respects. In our opinion if no reference is made to cards and other articles specifically in sec. 7 of the Bombay Act which corresponds to sec. 6 of the Central Act a reasonable inference arises that the Legislature did not desire that any particular article should be stamped as an instrument of gaming; on the contrary by merely providing for the seizure of the instruments of gaming and by defining the term instrument of gaming the Bombay Legislature has clearly indicated that no article-unless it is an article which can be used only for the purpose of gaming-should be held to be an instrument of gaming unless it fell within the inclusive definition of that term given in the Act itself. With respect therefore we are not in agreement with the decision of the Bombay High Court on this point. On the other hand there is a decision by the Division Bench consisting of Shelat J. (as he then was) and Mody R J. in Criminal Appeal No. 565 of 1961 decided on 12 November 1962. In that case when the premises were raided under the warrant persons were found sitting in a circle playing a game of cards and certain monies were found lying within the circle. On a question whether cards and coins were instruments of gaming the Court observed as follows:-CARDS and coins by themselves and without anything more cannot be said to be articles necessarily used or intended to be used as a subject or means of gaming. At a later stage the Court further observed as follows:as we have already observed the fact of the cards and the coins having been found from within the circle in which the accused were sitting at the time cannot by themselves be considered as instruments of gaming without anything more. At a later stage the Court further observed as follows:as we have already observed the fact of the cards and the coins having been found from within the circle in which the accused were sitting at the time cannot by themselves be considered as instruments of gaming without anything more. ( 11 ) THE definition of the term instrument of gaming in sec. 2 of the Act is an inclusive definition. This term 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 of 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. The definition of this term therefore clearly points out that except when an article seized Is such an article as could only be used as an instrument of gaming any other article in order to be an instrument of gaming should be shown to have been used or intended to be used for the purpose of gaming. It was conceded before us that cards and monies can be used for innocent purposes. Therefore in view of the definition of this term in the Act it is incumbent on the prosecution to show that the articles seized at the time of the raid were either used or intended to be used for the purpose of gaming. The mere find of cards at the time of the raid would not by itself and without anything more mean to say that the cards are instruments of gaming. We are if we may say so in respectful agreement with the observations made by this Court in Criminal Appeal No. 565 of 1961 and we come to the conclusion that mere seizure of the cards or counters from the place raided by the police will not by itself and without anything more amount to being instruments of gaming. 18 It was then urged that from the evidence on record it is proved that the cards and counters in both the cases were instruments of gaming. In order to decide what articles are instruments of gaming it is first necessary to clarify as to what gamingitself means. 18 It was then urged that from the evidence on record it is proved that the cards and counters in both the cases were instruments of gaming. In order to decide what articles are instruments of gaming it is first necessary to clarify as to what gamingitself means. In the Bombay case referred to above the meaning of the word gaming in the various dictionaries has been stated on page 715 of the report. The various dictionary meanings therein show that gaming consists of using cards dice billiards or other instruments according to certain rules with a view to win money or other thing waged upon the issue of the contest This is the meaning of the term gaming in the Imperial Dictionary. Webster defines the gaming as to play for a stake or prize; to use cards dice or other instruments according to certain rules etc. The term gaming is not defined in the Act itself. Sec. 13 of the Act lays down that nothing in this Act shall be held to apply to any game of mere skill wherever played. In the case of Emperor v. Kallappa Curappa Kotagunshi 41 Bombay Law Reporter page 970 a Division Bench of the Bombay High Court held as follows:the words mere skill in sec 13 of the Bombay Prevention of Gambling Act 1887 mean pure skill. A game in which there is a substantial element of chance is not a game of mere or pure skill. If a game is played for stakes it amounts to gaming and comes within the mischief of the Bombay Prevention of Gambling Act quite irrespective of the question whether chance or skill predominates provided that it is not a game of mere skill that is a game in which there is no element of chance at all. If the element of chance in a game is negligible it may be ignored. ( 12 ) TAKING all these factors into consideration it amounts to gaming when people play a game of cards with stakes provided that the game is not one of pure skill. In order to prove therefore that the articles seized are instruments of gaming it should be proved that they were used or intended to be used for a card game which was being played at stakes and which game was not one of pure skill. In order to prove therefore that the articles seized are instruments of gaming it should be proved that they were used or intended to be used for a card game which was being played at stakes and which game was not one of pure skill. In these two cases therefore it should be proved by the prosecution that the game that was being played was being played with stakes. In both the cases neither the police officer nor the Panch witness has seen actually stakes being given or taken. There is nothing in the evidence to show that any stakes were lost or won as a result of the game which was being played at the time of the raid. In Criminal Appeal No. 441 of 1965 the punter who is examined in the case was given a currency note of Rs. 10. 00 on which there were initials of the Panch as. He was asked to go and gamble in that premises. That marked note was found from the drawer of the table which was near respondent No. 2 in the other room in the terrace which was locked and which lock was opened with the bunch of keys with respondent No. 2. The ten-rupee note given by the police to the punter Was found from that table. That circumstance proves that the ten-rupees note had passed from the punter to the respondent No. 2 The punter had some counters with him. Counters are wooden circular pieces of different sizes and colours with different denominations impressed thereon. These counters in both the cases were seen lying near the persons who were playing. There were no counters lying in the centre of the circle. The only evidence on which the prosecution relies in each case to prove that the counters represent monies is that of the punter himself. In each case punter says that he exchanged the ten-rupee note for counters. In each case the punter says that even before he was employed by the police to act as their agent he was in the habit of going to this place and gambling. The punter is therefore by his own admission in each case proved to he a gambler. In each case the punter says that even before he was employed by the police to act as their agent he was in the habit of going to this place and gambling. The punter is therefore by his own admission in each case proved to he a gambler. He is therefore a person who has agreed to gamble at the instance of the police in order that the other persons who played with him should be betrayed to the police. It has already been held by a Division Bench of the Bombay High Court in the case of Emperor v. Harilal Gordhan 39 Bombay Law Reporter page 613 that such punters are unreliable witnesses. It has been held in that case as follows:as a rule police agents in gambling cases are not only accomplices but are also unreliable witnesses. The evidence given by them should be corroborated before it can be acted upon. The case is not improved by providing a police agent with a companion and calling him a Panch. ( 13 ) IN each of these two cases except the bare words of the punter that he exchanged the ten-rupee note for counters there is no other independent evidence to corroborate him. The find of the ten-rupee note in the table which was opened by respondent No. 2 in Criminal Appeal No. 444 of 1965 or which was with respondent No. 2 in Criminal Appeal No. 442 of 1965 would only indicate that the punter had parted with the ten-rupee note and it had gone into the table in the one case and was with the respondent No. 2 in the other case. As to why the punter gave the currency note to these respondents there is only the bare word of the punter. We do not think therefore that this evidence can be relied upon. It is true that in both the cases the police witnesses say that the monies are usually exchanged for counters but what we are concerned is whether at the time when the raid was carried out the counters which were with punters represented monies or not. In Criminal Appeal No. 444 of 1965 the P. S. I. has stated that the counters are used for counting points. No monies or even counters were seen lying in the circle of the players. In Criminal Appeal No. 444 of 1965 the P. S. I. has stated that the counters are used for counting points. No monies or even counters were seen lying in the circle of the players. We therefore come to the conclusion that the evidence in the two cases is insufficient to prove that the counters were exchanged for monies or that they represented monies. In both the cases there is no evidence to show that the game was being played with stakes. We are therefore unable to agree with the learned Assistant Government Pleader that the respondents who were playing the game with cards were gaming within the meaning of that term as used in the Act. The articles seized from the two places therefore are not proved to be instruments of gaming as there is no evidence to show that they were used or intended to be used for gaming. It may be as alleged by the prosecution that in both the cases a game of rummy was being played; but apart from the question whether the game of rummy is a game of pure skill or not there is no sufficient evidence to show that it was being played with stakes. ( 14 ) THE alternative submission on behalf of the State is that in these cases the police officer had reasonable grounds to suspect the articles namely the cards and counters and monies seized from the raided place as being instruments of gaming and therefore the required presumption should be raised under sec. 7 of the Act. It is true as noted above that under sec. 7 even if the prosecution is not able to prove that the articles seized were instruments of gaming yet if the prosecution satisfies the Court that the police officers raiding the premises had reasonable grounds to suspect that the articles seized by them were instruments of gaming it would be open to the prosecution to ask the Court to raise a presumption under sec. 7 of the Act. As regards this portion of sec. 7 of the Act a question about its interpretation arose in the case of Emperor v. Nathalal Vanmali 41 Bombay Law Reporter page 548. The Court observed as follows:the presumption arising in the second event specified in sec. 7 of the Act. As regards this portion of sec. 7 of the Act a question about its interpretation arose in the case of Emperor v. Nathalal Vanmali 41 Bombay Law Reporter page 548. The Court observed as follows:the presumption arising in the second event specified in sec. 7 must always be still-born because it is rebutted by proof of the very event which gives it birth namely seizure of something other than an instrument of gaming The second event can only arise when it is proved that the thing which was found in the house raided was not an instrument of gaming and directly that is proved the evidential value of the thing found is destroyed. ( 15 ) IF this construction were correct it is obvious that the provisions of the later part of sec. 7 would be rendered invalid. This decision was however reconsidered in the case of Emperor v. Hormazdyar Ardeshir Irani 50 Bom L. R. page 163. It was held in the said decision that the construction of the later part of sec. 7 of the Act made in the previous case was incorrect and the High Court held as follows:we are therefore inclined to think that the second part of sec. 7 of the Act is intended to apply to such thing as may appear to be or may reasonably be suspected to be instrument of gaming though they cannot be proved to be such instruments and that it is only by putting such a construction that it is possible to give meaning to this part of the section. we think that such a construction ought to be adopted in preference to any construction which would reduce this part to a nullity. In Criminal Appeal No. 565 of 1961 decided on 12th November 1961 a Division Bench of this High Court consisting of Shelat J. (as he then was) and Mody J. has considered the question of construction of this part of sec. 7 and this Court has held as follows:the result of these three decisions therefore in effect comes to this that where an instrument of gaming as defined in sec. 3 has been seized from premises entered under sec. 6 or from the person of anyone found therein sec. 7 would apply and the presumptions therein provided for would arise. 7 and this Court has held as follows:the result of these three decisions therefore in effect comes to this that where an instrument of gaming as defined in sec. 3 has been seized from premises entered under sec. 6 or from the person of anyone found therein sec. 7 would apply and the presumptions therein provided for would arise. Those presumptions would also arise where it is not proved that the thing seized was an instrument of gaming but it is proved that a thing so seized was such that from the facts and circumstances of the case the Court would be satisfied that the police officer who entered such premises had reasonable grounds for suspecting that it was an instrument of gaming. Therefore even if the cards counters and monies are not shown to be instruments of gaming because it is not proved that the game was being played with stakes still it is open to the prosecution to satisfy the Court that the police officer had reasonable grounds to suspect these cards monies and counters to be instruments of gaming. An article will be an instrument of gaming either when the article is such that it can only be used for the purpose of gaming and not for any other purpose; or if the article is capable of being used for innocent purposes as well as for gaming then either its actual user for gaming should he proved or it should be proved that it was intended to be used for the purpose of gaming. If any of these facts is proved then the article would be an instrument of gaming within the meaning of the definition of that term in sec. 3 of the Act. But if none of these things is proved then the police officer should show reasonable grounds for him to suspect that it was an instrument of gaming. Whether in a particular case the police officer had reasonable grounds for such suspicion would always be a question of fact dependent on the facts of each particular case. No hard and fast rules can be laid down in this regard. Whether in a particular case the police officer had reasonable grounds for such suspicion would always be a question of fact dependent on the facts of each particular case. No hard and fast rules can be laid down in this regard. It follows in our opinion in each of these two cases under appeal that the police should have reasonable grounds to suspect that the cards counters and monies were either used or intended to be used for a game of cards at stakes which game was not merely of skill. The Police officer should therefore have reasonable grounds to suspect the existence of three factors namely: (1) that the cards etc. were used or intended to be used for a game (2) that the card-game was played with stakes that is on the result of the card-game some people were expected to lose and some people were expected to gain monies and (3) that the game was not a game merely of pure skill. If the police officer is able to give reasonable grounds to entertain a suspicion about existence of these three factors then it can be said that he had reasonable grounds to suspect that the articles seized by him were instruments of gaming. If he has no reasonable grounds to suspect that the articles seized were used or intended to be used for a game played at stakes or if he had no reasonable grounds to suspect that the game was not one of pure skill then in each case it can be said that he had no reasonable grounds to suspect that the articles seized by him were Instruments of gaming. In these two appeals there is no doubt that from the evidence on record it appears that cards were being used for a card-play. It is the case of the prosecution that the counters were also being used for the play. However in both the cases except the evidence of the punters there is no other evidence to show that the play which was being carried on at the time of the raid in these premises was being played with counters and monies. As we have noted earlier the punters evidence is the evidence of an accomplice and he is an unreliable witness and it is not prudent to accept his evidence unless there is corroboration from independent sources. As we have noted earlier the punters evidence is the evidence of an accomplice and he is an unreliable witness and it is not prudent to accept his evidence unless there is corroboration from independent sources. No such corroboration is produced in either of the two cases. All that is pointed out by way of corroboration is that in each of the two cases a marked currency note of rupees ten which was given to the punter was found to be in possession of one of the respondents; but that by itself is not a corroboration of the evidence of the punter that he exchanged it for counters. The ten- rupee note which has been given by the punter to the particular respondent in each case may have been delivered to the respective respondent for some other reason. We have to rely upon the words of the punter alone to come to the conclusion that the ten-rupee note was given in exchange of counters. Again the allegation of the prosecution is that the card game was being played with counters. Here again if we exclude the evidence of the punter there is no other evidence to show that the card-game was being played with counters. Apart from the evidence of the punter there is no other evidence to show that as a result of the card-game some persons gave counters to some other persons in lieu of monies It is not the case of the prosecution that this game was being played by putting stakes at the commencement of the game so that the stakes formed a pool and the winner iq the game took away the stakes in the pool. No pool was found within the circle of the persons playing the card-game. The police officer in each case has relied upon the word of the punter and on that basis he came to entertain a suspicion that the card-play was gaming and cards and counters were used or intended to be used for gaming. In our opinion since punters word is unreliable the police had no reasonable grounds to suspect that the card-play amounted to gaming or that the counters represented monies. ( 16 ) IN each case the allegation is that the game that was being played was game of rummy. In our opinion since punters word is unreliable the police had no reasonable grounds to suspect that the card-play amounted to gaming or that the counters represented monies. ( 16 ) IN each case the allegation is that the game that was being played was game of rummy. In Criminal Appeal No. 444 of 1965 apart from the evidence of the punter Police Inspector has stated that he knows how to play rummy and from the distribution of cards and pack of unrevealed cards and heap of discarded cards in the centre he can say that the game which was being played was one of rummy. In Criminal Appeal No. 442 of 1965 except the evidence of the punter there is no other evidence to show that the game that was being played was one of rummy. Indeed if the punters evidence is discarded there is no other evidence to show as to what was the nature of the game that was being played. There is no evidence on record to show as to what is the game of rummy. However the learned Assistant Government Pleader drew our attention to the description of the game of rummy in Shorter Oxford English Dictionary third Edition corrected and revised upto 1956. According to that description of the game of rummy it appears that each player has to make sequences of the same suit and sets of the same denomination by taking either an exposed or a revealed card and in exchange to discard a card from his hand From this description of the game rummy it appears that making of sequences of same suit or sets of same denomination by a particular player depends upon the chance of his getting the required card either from the card exposed or from the revealed card. It is not therefore a game of pure skill. There is a substantial element of chance therein. However there is no indication in this description of the game or on the record of the case as to where and how the stakes come into existence. There is no evidence on record as to how monies could be won or lost as a result of such a game. Apart from the evidence of the punter there is no evidence to show that any monies were likely to be lost or won as a result of the game. There is no evidence on record as to how monies could be won or lost as a result of such a game. Apart from the evidence of the punter there is no evidence to show that any monies were likely to be lost or won as a result of the game. As we have held earlier there is no reliable evidence in the case at all that the game was being played with stakes. If the police officer relied upon his own personal knowledge gained by way of experience in the past it was his duty to say so in the witness box and to satisfy the Court that he really had experience of such game. However in either of the two cases the raiding officer has not stated that it is from his experience in the past that he had reasonable grounds to hold that the game was being played at stakes. In each of the two cases the punter has stated that he has paid sitting charges for playing and it was urged that the sitting charges would mean a charge levied from the punter for the purpose of using the premises for gaming. Here again we have only the bare words of the punter. The punter in Criminal Appeal No. 444 of 1965 has hopelessly contradicted himself upon it. In any event we do not think it safe to rely upon the mere uncorroborated word of the punter. It is true that in this case the respondents except respondents Nos. 2 and 7 in Criminal Appeal No. 444 of 1965 were found in the premises raided. It is also proved that in the premises a card play was going on and counters were lying near the card players. Apart from this the only circumstance pointed out is that the ten-rupee note given to the punter was found with one of the respondents in both the cases. From these circumstances we do not think that the police officer had reasonable grounds to suspect that the cards counters and monies which he had seized at the time of the raid were instruments of gaming. From these circumstances we do not think that the police officer had reasonable grounds to suspect that the cards counters and monies which he had seized at the time of the raid were instruments of gaming. In Criminal Appeal No. 565 of 1961 referred to by us above the circumstances were (1) the finding of cards and coins within the circle in which the 9 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 joker cards 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. On these facts and circumstances proved in the case the Court came the conclusion that none of these circumstances either taken singly or even cumulatively could be said to establish that the articles seized by the police were such that the Court would be satisfied that the police officer had reasonable grounds for suspecting that they were instruments of gaming. The Court further held It is possible that they might have been playing mere game with cards and even with monies which might not be a game of gambling in the sense of this Act. In our considered opinion it is not possible to hold in either of the two cases that the police officer seizing these articles had reasonable grounds to suspect that they were instruments of gaming. ( 17 ) THE learned Assistant Government Pleader referred to certain decisions of this Court in support of his argument that the articles seized during the raid have been held either to be instruments of gaming or suspected to be instruments of gaming. The first such decision is in Criminal Appeal No. 699 of 1961 decided by Divan and Vakil JJ. on 20th June 1963. In this case the circumstances established were that when the raid was carried out all the 9 accused persons were found sitting in a circle and cards were found lying on the ground and some monies were also lying on the ground and there were two heaps of cards. on 20th June 1963. In this case the circumstances established were that when the raid was carried out all the 9 accused persons were found sitting in a circle and cards were found lying on the ground and some monies were also lying on the ground and there were two heaps of cards. As we have noted above the main point urged in this appeal was that the warrant was defective as the District Superintendent of Police who issued it had no sufficient materials before him to justify the issue of such a warrant The Court came to the conclusion that the warrant was not defective and thereafter the Court proceeded to raise the presumption under sec. 7 of the Act and found that the respondents were guilty of the offence under secs. 4 and 5 of the Act. The question whether in the circumstances of the case the articles seized by the police were in fact instruments of gaming or whether the police officer has reasonable grounds to suspect them to be instruments of gaming. does not appear to have been raised before the Court; at any rate there is no discussion of this point in the judgment of the Court. That decision therefore does not help the prosecution. ( 18 ) THE second decision is in Criminal Appeal No. 154 of 1962 decided by Divan J. on 16th August 1963. What was found by the Court in that case was that the door of the room had to be broken open by the police and on a search being made in the premises packs of cards and some burnt and torn cards and a ten-rupees currency note were found from the premises. Having noted the facts found the learned Judge observed as follows:under these circumstances it is clear that these packs of cards which were found inside the house were instruments of gaming found when the raiding party entered the room. It appears that there was no contention raised before the Court that the articles seized by the police were in fact instruments of gaming It seems to have been assumed that they were instruments of gaming. ( 19 ) THE third case relied upon by the learned Assistant Government Pleader is in Criminal Appeal No. 216 of 1964 decided by Mehta J. on 3 August 1965. The facts found in that case were that accused Nos. ( 19 ) THE third case relied upon by the learned Assistant Government Pleader is in Criminal Appeal No. 216 of 1964 decided by Mehta J. on 3 August 1965. The facts found in that case were that accused Nos. 1 to 12 were sitting in a circle and playing with cards and monies and a pool of monies was lying on the carpet in front of accused No. 2. The pool amount consisted of Rs. 690. 00. Another pack of cards and 50 counters of different sizes and colours were also recovered from a piece of valvet which was in the midst of the circle formed by the 12 accused persons. From a wooden box in the premises 310 counters of different colours and sizes were recovered. From the place where accused No. 6 was sitting a writing pad with blank papers and some monies amounting to Rs. 962. 00 were found. There were 2 locked cupboards from which 13 new packs of cards and 121 counters were recovered. Various amounts were recovered from the persons of different accused. The learned Judge considered the question whether the police officer who raided the premises had reasonable grounds for his suspicion that the things which he has seized were instruments of gaming. The learned Judge has come to the conclusion that the accused Nos. 1 to 12 were sitting in a circle and while the play of cards was actually going on from the pool Rs. 690. 00 were recovered with a pack of cards and cards were also recovered from the piece of valvet which was in the midst of the circle formed by accused Nos. 1 to 12. The learned Judge also came to the conclusion that from the position in which accused were found playing the game with cards and counters the P. S. I. had a reasonable ground to believe that the accused No. 6 was paid nal monies that is profits derived by the owner or occupier of the premises. The learned Judge has remarked that it is true that mere counters or coins or cards by themselves would not amount to instruments of gaming but in the circumstances in which these things were seen the police officer had a reasonable ground for suspicion that the things which he bad seized were the instruments of gaming. The learned Judge has remarked that it is true that mere counters or coins or cards by themselves would not amount to instruments of gaming but in the circumstances in which these things were seen the police officer had a reasonable ground for suspicion that the things which he bad seized were the instruments of gaming. Here the learned Judge has come to a definite conclusion that the game of cards was being played at stake and that the amount was represented by a pool of Rs. 690. 00. He also came to a definite conclusion that Nal monies that is profits made by the occupier of the gaming house were also recovered by the police. It is on these facts that the learned Judge has come to the conclusion that the police officer had reasonable grounds to suspect that the articles seized by him were instruments of gaming. Here again we would note that the attention of the learned Judge has not been drawn to the decision in the case of Emperor v. Kalappa 41 Bombay Law Reporter 970 where it has been held that the game of cards played with stakes will amount to gaming provided that the game is not one of pure skill. In our opinion this case is a decision on its own facts ( 20 ) THE last decision relied upon by the learned Assistant Government Pleader is a decision in Criminal Reference No. 49 of 1965 by my learned brother N. G. Shelat J. on 14th October 1966. The facts found by my learned brother were that all the accused persons were gaming in cards with money and some amounts were lying in the middle. The cards and the amounts were seized by the Police. My learned brother has then remarked All those circumstances taken together amply establish the fact that they were instruments of gaming. It was found by my learned brother that the accused were gaming with cards and monies. Here again my learned brothers attention was not invited to the decision in 41 Bombay Law Reporter 970 referred to above. In our opinion since the point that is raised and discussed in these two appeals has not been raised and dircussed in this judgment this decision also does not afford any support to the prosecution. . Here again my learned brothers attention was not invited to the decision in 41 Bombay Law Reporter 970 referred to above. In our opinion since the point that is raised and discussed in these two appeals has not been raised and dircussed in this judgment this decision also does not afford any support to the prosecution. . ( 21 ) THE learned Assistant Government Pleader also relied upon a decision of this Court in the case of Ramlobhoya Thakordas and others v. The State of Gujarat VIII Gujarat Law Reporter page 145. In that case however the Court came to a definite conclusion that the card-play was actually a play at stakes. That decision therefore does not apply to the facts of this case. ( 22 ) SINCE we have come to the conclusion that the articles seized by the police officer in either of the two cases are not proved to be instruments of gaming and further we are not satisfied that the police officer in each case had reasonable grounds to suspect that they were instruments of gaming no presumption under sec. 7 can be raised against the respondents. As we stated earlier apart from the presumption to be raised under sec. 7 it was conceded by the learned Assistant Government Pleaders in bosh the cases that there is no independent evidence to sustain a charge under sec. 5 of the Act against the respondents. In the result therefore we uphold the order of acquittal passed by the learned Sessions Judge in each of the two cases though we do so for the reasons quite different from those given by the learned Sessions judge. ( 23 ) IN the result therefore each of the two appeals fails and is dismissed. Appeals dismissed. .