STATE OF GUJARAT v. MANCHHARAM CHHATUMAL LUWANA — 1969 DIGILAW 111 (GUJ)

A. S. SARELA, J. ( 1 ) -THE eight respondents and one other person named Bhagwandas who was under 16 years of age and therefore a child were prosecuted for an offence under sec. 5 of the Bombay Prevention Gambling Act (hereinafter referred to as the Act ). Respondent No. 1 Manchharam Chhatumal was further charged with an offence under sec. 4 (a) of the Act. The trial of the child accused was separated and that against the others was held by the Judicial Magistrate First Class Rajkot (Shri B. T. Shah) who has acquitted all of them. Against the acquittal the State has come in appeal. As respondents Nos. 2 and 8 could not be served with the notice of this appeal and were reported to be absconding the appeal as against them is kept on the dormant file and that against the rest has proceeded. The substantial ground on which the acquittal was founded was that the prosecution was not entitled to the presumption available under sec. 7 of the Act notwithstanding the fact that special warrant had been issued in this case under sec. 6 of the Act because according to the learned Magistrate the warrant in this case was defective. Mr. Shah the learned advocate of the respondents has not adopted that line of reasoning and concedes that the warrant in this case is not defective but his argument is that even so the terms of sec. 7 of the Act which must be satisfied for the raising of the presumptions are not satisfied in this case. This being the short question arising in this appeal the facts may be stated in brief in so far as they are relevant to the determination of that question. . . . . . . . . . . . . . . . . . ( 2 ) ON the evidence of the police officer and the two panchas the broad facts relevant on sec. 7 of the Act which are established and the evidence in respect of which I do not see sufficient reason to disbelieve are firstly that a game was being played with dice secondly that money was being exchanged as part of that game and thirdly that one of the incidents of that game was that respondent No. 1 was taking the nal. The meaning of the expression nal has been referred to in the decision of this Court in State v. Jethanand (IX G. L. R. 832) where the learned Judges at page 846 say that the nal moneys are profits made by the occupier of the gaming house; that is indeed the sense in which the expression has been used by the police officer in this case as his deposition shows. Mr. Shah argues that even accepting these facts as having been proved they are not sufficient for the Court being satisfied that the police officer who entered the house had reasonable grounds for suspecting that the things seized in the present case namely the dice and the money were instruments of gaming. His argument is that unless it is established that exactly was the game that was being played and what was the nature of that game the necessary foundation for the police officer to entertain reasonable grounds for suspecting that the things seized were instruments of gaming as contemplated by sec. 7 of the Act is lacking. In support of that proposition he invited my attention to some observations of this Court in Ramlobhaya Thakordas v. State (VIII G. L. R. 145 ). ( 3 ) BEFORE examining this submission and considering the observations of this Court on which reliance is placed it would be appropriate to consider what is gaming which is hit by the provisions of the Act. The expression has been defined in sec. 3 to include wagering or betting and sec. 13 of the Act states that nothing in the Act shall be held to apply to any game of mere skill wherever played. The concept of gaming has been analysed by this Court in Jethanands case (supra) in para 18 of the judgment. Reference is first made to the dictionary meaning of that term and it is pointed out that gaming consists according to the dictionary meaning in 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. Reference is then made to the following observations in the Full Bench decision of the Bombay High Court in Emperor v. Kallappa Gurappa Kotagunshi (42 B. L. R. 970):-A game in which there is a substantial element of chance is not a game of mere or pure skill. Reference is then made to the following observations in the Full Bench decision of the Bombay High Court in Emperor v. Kallappa Gurappa Kotagunshi (42 B. L. R. 970):-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 the game is negligible it may be ignored. In Jethanands case the articles seized were playing cards and counters and the learned Judges were concerned with a card game known as rummy and they said that:-IT amounts to gaming when people play a game of cards with stakes provided that the game is not one of pure skill. and they go on to say:- 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. Therefore three elements should be present to constitute gaming namely that a game is played that it is played for stakes and that it is not a game which is predominantly a game of skill. If these three elements are satisfied then the instruments or articles used or intended to be used as a subject or means of playing such a game would be instruments of gaming. ( 4 ) NOW in the present case there is no difficulty in holding that a game was being played. The facts that they were sitting in a circle near a lamp and playing with dice showed they were playing a game. The fact that the game was closely associated with the play of dice and there were no other articles used in that connection would show it was not a game of mere skill and that it was a game in which chance predominated. Mr. Shah does not dispute that proposition. Therefore two of the elements of gaming are satisfied in this case. Mr. Shah does not dispute that proposition. Therefore two of the elements of gaming are satisfied in this case. The question is whether that game was played for stakes. Mr. Shah argues and there is substance in that argument? that a game can be said to be played for stakes only on the footing that somebody is likely to win and somebody is likely to lose what is waged as a necessary part or consequence of the game. Now in this case there are three important circumstances bearing on the question. One was that the articles or instruments that were being used were dice. It could reasonably be assumed as just stated that dice would not be instruments of a game of mere skill and would normally be associated with a game entirely of chance or at any rate a game in which chance predominates. Along with the dice there was money. The exchange of money had been deposed to but there is no evidence that the exchange of money was part or winning or losing. This could be proved only by the evidence of one of the players or a punter or by proving what the game exactly was. No doubt the payment of nal is proved. But Mr. Shah is right that mere fact that nal was obtained by one of the respondents will not prove that it is obtained on the basis of somebody winning or somebody losing a thing waged. It may well be that it is based on a different calculation. The receipt of nal therefore does not prove the element of winning or losing as part of the game. Now if the prosecution did not want to rely on sec. 7 and wanted to establish by positive evidence that what was being carried on was gaming the prosecution must prove what the game was so that the Court knows that losing or winning the thing waged was the necessary element of the game. However if the prosecution is required to prove this and proves it there would be little need to call to aid the presumption under sec. 7 for obtaining a conviction under sec. 5. It would be enough then to adduce additional proof that the instruments of gaming were kept and used for the profit or gain of the person occupying or keeping such house room or place. 7 for obtaining a conviction under sec. 5. It would be enough then to adduce additional proof that the instruments of gaming were kept and used for the profit or gain of the person occupying or keeping such house room or place. The evidence to be adduced for satisfying the requirements of the second alternative of sec. 7 is that in the words of that section 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 instrument of gaming. Therefore the facts to be proved should be such as would satisfy the Court that the police officer would on these facts reasonably entertain a suspicion of the nature mentioned as respect the thing seized. This could not be equated with proof of gaming itself. ( 5 ) BUT Mr. Shah says that having regard to the observations of this Court in Ramlobhayas case (supra) the proof of what the game was and what was its nature are in law necessary before the Court can be said to be satisfied within the terms of sec7. In that case the game that was being allegedly played was the game of andar-bahar. The facts found (as stated in paras 28 and 31 of the judgment) were that cards and money were found within a circle where the appellants of that case had been playing and some amount was recovered from their persons. It was also proved that some money was being collected by appellant No. 2 in a metal cup found with him and that the police and the panchas heard the words andar-bahar uttered by one of the appellants. It appears that the police officer who deposed in the Court did not explain what the game of andar - bahar was but stated that the appellants were gambling. The learned Judges pointed out that if in that case the determination of the question depended only on the opinion of the police officer that the appellants were gaming the prosecution could not have claimed the advantage of presumption under sec. 7. They said that the police officer 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. 7. They said that the police officer 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 Indian Evidence Act. Then after pointing out that the police officer had not deposed as to how the game of cards was gambling they say (page 160):-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 recognized by a Court of law to be gaming within the meaning of the Act. Mr. Shah relies on these observations. I am not able to read these observations as meaning that the prosecution must prove what the game played was. I understand them only as meaning that the prosecution must prove not the opinion of the police officer or that the accused were in fact gaming but facts on which the police officer entertains a reasonable suspicion that they were gaming. This is also clear from an earlier observation - in the same para at page 159 where they say:-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 ingredient of sec. 7 to enable the presumption to be raised in our opinion goes too far in the circumstances of the case. Therefore if having regard to the facts of the case the Court is satisfied that the police officer had reasonable grounds of suspecting that what was being played was gaming then the fact that he is unable to say what exactly the game was though he is able to say what happened at the time the game was played does not rule out the raising of the presumption under sec. 7 of the Act. The test is:- is the Court satisfied ? 7 of the Act. The test is:- is the Court satisfied ? And the satisfaction is as to the existence of reasonable grounds on which the police officers suspicion could be based. To hold that the grounds cannot be said to be reasonable for the police officer to entertain that suspicion unless the actual game that was being played is proved is in my opinion to defeat the object of the section for if it can be so proved there was no need for the presumption. Now in this case the facts established have been earlier set out and those facts in my opinion afforded reasonable grounds for the police officer to suspect that the articles seized were instruments of gaming. If so the presumptions permissible under sec. 7 of the Act can be raised. Mr. Shah does not urge that the presumptions have been rebutted and therefore the offence under sec. 5 of the Act has been made out against the respondents. ( 6 ) THIS however is not sufficient by itself for proving the offence under sec. 4 (a) of the Act. The presumption that is available under sec. 7 is that the house room or place as the case may be was being used as a common gaming house. To bring the offence under sec. 4 (a) home to any person it must be further proved that it was he who opens keeps or uses the house room or place for that purpose. The prosecution sought to prove that respondent No. 1 was in occupation of the house and if that is proved it can be said read along with his presence and the fact of his receiving nal that the necessary ingredient of clause (a) of sec. 4 has been made out. There is no dispute about the fact that the place that was raided bore the number R. 19/249. That is the number mentioned also in the warrant issued under sec. 6. The Police Inspector Trivedi says that this number is occupied by respondent No. 1 Manchharam Chhatumal and Bhagwandas. In cross-examination his knowledge about this was challenged but he stated that he knew well that Manchharam and Bhagwandas were occupying the said house. The learned Judge appears to have disbelieved him. It appears that the Police Inspector had written to the Rehabilitation Officer on 15-11-1965 making some inquiries. In cross-examination his knowledge about this was challenged but he stated that he knew well that Manchharam and Bhagwandas were occupying the said house. The learned Judge appears to have disbelieved him. It appears that the Police Inspector had written to the Rehabilitation Officer on 15-11-1965 making some inquiries. What exactly was the nature of the inquiry is not known but the reply received from the Rehabilitation Officer on 1s111965 has been produced at exh. 9. In that reply it is stated that at the time of reply one Kevanbhai Hasaram was illegally staying in the said quarter. The learned Magistrate says that having regard to this piece of evidence namely exh. 9 it was quite clear that the quarter was not in occupation of respondent No. 1 and Bhagwandas as alleged by the prosecution. He further states that there was no other proof to show that this quarter was in occupation of respondent No. 1 and Bhagwandas. He goes on to add that the complainant has no knowledge that respondent No. 1 and Bhagwandas are occupying the said quarter and the panchas do not say anything regarding this. He also adds that there is no evidence to show that at the time of the alleged incident the respondent No. 1 and Bhagwandas were occupying the said quarter. Now all these statements are inconsistent with the evidence. The mere fact that at the time exh. 9 was written that is in November 1965 the quarter was illegally occupied by Kevanbhai cannot prove that it was not in the occupation of respondent No. 1 at the time of the raid. The statement that the complainant has no knowledge about the occupation by respondent No. 1 Bhagwandas is contrary to the testimony of the police officer. The statement that the panchas do not say anything about this is true in so far as the second panch is concerned and is partly true in respect of the first panch because the statement of the first panch that the quarter was of Manchharam and Bhagwandas was based on his seeing Manchharam coming out of his quarter. The fact however remains that respondent No. 1 was found in that quarter-a fact which the learned Magistrate does not appear to have noticed when he stated that there was no other evidence. That fact corroborates the police officer. The fact however remains that respondent No. 1 was found in that quarter-a fact which the learned Magistrate does not appear to have noticed when he stated that there was no other evidence. That fact corroborates the police officer. Reading that fact along with the fact that it was he who was taking nal money it would be reasonable to infer that he was using the place for the purpose of common gaming house. ( 7 ) ON the question of sentence Mr. Shah for the respondents urged that both secs. 4 and 5 of the Act provide for a substantive sentence and also a sentence of fine and it is permissible for the Court to impose either of these sentences and his submission is that having regard to the considerable period that has elapsed since the offences were committed and small amount of money which was involved as can be seen from the amount of money seized this is a fit case where a sentence of fine should only be imposed. The submission of the learned Assistant Government Pleader is that having regard to the language of the punishing sections a sentence of imprisonment is obligatory. ( 8 ) THE penalty provision in sec. 4 as also sec. 5 reads:-SHALL on conviction be punishable with imprisonment which may extend to six months and with fine. Then there are three provisos in both the sections providing for a certain minimum sentence for a first offence for a second offence and for a third or subsequent offence. For a first offence the provision is such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees. In support of his submission that the Court has discretion to impose a sentence of imprisonment or a sentence of fine Mr. Shah relied on the expression punishable used in both these provisions and on the interpretation of that expression in a Single Judge decision of the Bombay High Court in State v. Namgonda (A. I. R. 1964 Bombay 5 ). That also was a case under secs. 4 and 5 of the Act. Shah relied on the expression punishable used in both these provisions and on the interpretation of that expression in a Single Judge decision of the Bombay High Court in State v. Namgonda (A. I. R. 1964 Bombay 5 ). That also was a case under secs. 4 and 5 of the Act. The Magistrate had imposed a sentence of fine only and the Sessions Judge made a reference to the High Court on the ground that having regard to the language of the two sections as> amended by the Amending Act No. 37 of 1947 a sentence of imprisonment was obligatory. Before the said amendment the sec. 4 provided as regards punishment that the offender shall on conviction be punishable for the first offence with imprisonment which may extend to seven months or with fine which may extend to one thousand rupees or with both and sec 5 provided similarly that he shall on conviction be punishable with fine which may extend to five hundred rupees or with imprisonment which may extend to one month. The submission of the learned Sessions Judge was that by the amendment the expression or had been replaced by and therefore it was not discretionary for the Court not to impose a substantive imprisonment. That argument was not accepted by the High Court. The learned Judge laid stress on the expression punishable contrasted it with the use of the expression shall be punished used in some of the provisions of the Indian Penal Code such as secs. 302 and 392 and said:-THE word punishable as contrasted with the word punished must be given its proper meaning and so constructed it is not susceptible of the construction that by its use the Legislature has deprived the Courts of their discretion to sentence the accused/either to a term of imprisonment or to pay a fine. The learned Judge observes that the use of the expression and did not make any difference. In support of this construction reliance was placed on the Full Bench ruling of the Bombay High Court in Emperor v. Peter DSouza (50 B. L. R. 574) where a similar provision under the Bombay Akbari Act 1878 was construed. There also the Full Bench took the view that the penalising clause in sec. In support of this construction reliance was placed on the Full Bench ruling of the Bombay High Court in Emperor v. Peter DSouza (50 B. L. R. 574) where a similar provision under the Bombay Akbari Act 1878 was construed. There also the Full Bench took the view that the penalising clause in sec. 43 (1) of the Bombay Akbari Act 1878 as amended in so far as it provided that the offender shall on conviction be punishable with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees did not make it obligatory upon the Court to inflict on the offender both the sentence of imprisonment and fine and the Court had discretion to inflict both the sentences or either of them. For this reliance was placed on the use of the expression punishable which it was held imported discretion and it was held that the discretion of the Courts to inflict either the sentence of imprisonment or the sentence of fine was not taken away. This reasoning of the Full Bench has not been approved by the Supreme Court in State of Maharashtra v. J. Lal (A. I. R. 1966 S. C. 940) where the Supreme Court was concerned with an offence under sec. 3 (i) of the Suppression of Immoral Traffic in Women and Girls Act 1956 where the relevant penalty was that the offender shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. The High Court of Bombay took the view relying on the Full Bench decision that the word punishable necessarily postulates a certain discretion on the Court to impose a sentence of imprisonment or a sentence of fine or both. The Supreme Court negatived this construction of the expression punishable. They said:-IT is no doubt true that the expression punishable means liable to punishment. Liable to punishment only means that a person who has contravened a penal provision will have to be punished. The Supreme Court negatived this construction of the expression punishable. They said:-IT is no doubt true that the expression punishable means liable to punishment. Liable to punishment only means that a person who has contravened a penal provision will have to be punished. Thus it does not mean anything different from shall be punished. Punishment is obligatory in either case. According to the Supreme Court whether a substantive punishment is obligatory or discretionary will depend not on the use of the expression punished or punishable but on a consideration of the whole of the penal provision and the Supreme Court drew attention to the use of the expression and stated that in the context it was not possible to construe it as or and therefore held that a substantive sentence was obligatory. Here also the expression and is used and the use of that expression does not seem to on accidental because before the amendment of 1947 the expression used was or as earlier pointed out. It would not b unreasonable to infer that the Legislature by this deliberate change intended a change of meaning. This conclusion gets support from the language of sec. 12 which was also before the Legislature. In sec. 12 as it then stood and now stands the penal provision reads shall on conviction be punished with fine which may extend to three hundred rupees or with imprisonment which may extend to three months. The Legislature left this part of sec. 12 unchanged at the time secs. 4 and 5 were amended. This fact supports the conclusion that the change in the wording of the penal provisions of secs. 4 and 5 was intended to convey a change in the legislative intent. In my opinion therefore having regard to the language used and the context of the provisions it must be held that a sentence of imprisonment is obligatory. ( 9 ) ON the facts of this case it would serve the ends of justice if the minimum sentence is imposed. ( 10 ) FOR these reasons the appeal is allowed. Respondent No. 1 is convicted of offences under secs. 4 (a) and 5 of the Bombay Prevention of Gambling Act and sentenced on each count to suffer R. I. for one month and to pay a fine of Rs. 200. 00. The substantive punishments shall run concurrently. ( 10 ) FOR these reasons the appeal is allowed. Respondent No. 1 is convicted of offences under secs. 4 (a) and 5 of the Bombay Prevention of Gambling Act and sentenced on each count to suffer R. I. for one month and to pay a fine of Rs. 200. 00. The substantive punishments shall run concurrently. In default of payment of fine respondent No. 1 shall under further R. I. in respect of each offence for one month. Respondents Nos. 3 4 5 6 and 7 are convicted of a offence under sec. 5 of the said Act and each of them is sentenced to undergo R. I. for one month and to pay a fine of Rs. 200/in default each of them shall undergo R. 1. for one month. Appeal allowed. .