J. M. SHETH, J. ( 1 ) THESE matters came up for hearing before the single Judge of this court. D. A. Desai 1 before whom these matters came up for hearing felt a doubt as to the correctness of the view expressed by the Bombay High Court in Emperor Dattatraya Shankar Pranjpe 25 Bombay Law Reporter 1089 and in Emperor v. Chimanlal Sankalchand 47 Bombay Law Reporter 75. He also felt that it was necessary to examine what was the correct ratio of those decisions. He felt that in view of the amended definition of the expression common gaming house by the Bombay Amending Act No. 14 of 1959 these decisions require reconsideration. He also in his referring judgment given in Criminal Revision Applications Nos. 490 and 491 of 1971 expressed his view and he feels that the view taken by the single Judge of the Bombay High Court (Chitle J.) in Criminal Appeal No. 551 of 1964 decided on 14th January 1965 supported his view. He has therefore observed in his referring judgment as under:-IN view of two decisions of the Division Bench of the Bombay High Court and in view of the over all amendment of definition of common gaming house and especially its division in two parts it is absolutely necessary to decide the question;whether profit or gain of the person owning occupying using or keeping a house envisaged in the second part of the definition of a common gaming house is profit or gain or even a hope thereof by way of a charge from the use of the house or use of the instruments of gaming kept in such house or even from gaming carried on in house would convert a house into a common gaming house. He has therefore referred these cases to the Division Bench feeling that the question raised is of public importance and it has become necessary to examine some earlier decisions of the Bombay High Court. In view of this order he has also passed an order to refer the aforesaid acquittal appeal to the Division Bench. That is how these matters have come before us for hearing. ( 2 ) MR. In view of this order he has also passed an order to refer the aforesaid acquittal appeal to the Division Bench. That is how these matters have come before us for hearing. ( 2 ) MR. H. K. Thakore appearing for the petitioners in the aforesaid two revision petitions though at one stage intended to raise a few questions ultimately has raised only one question and has frankly stated that the decision of that question only survives for consideration in these revision petitions. That question raised is whether the place raided in the instant cases can be said to be a common gaming house within the definition of that phrase given in sec. 3 of the Act. He has urged that in view of the amended definition of the common gaming house by Amending Act No. 14 of 1959 profit or gain must have direct relation with the use of the room house or place and/or with the instruments of gaming. Independent of it if one expects only profits from the gaming itself it will not be sufficient to term that house or place or room as a common gaming house. In short he has relied upon the observations made by our learned Brother D. A Desai J. in his referring judgment and the observations made by Chitle J. in the aforesaid criminal appeal referred to by us earlier. ( 3 ) MR. Chhaya appearing for the State has urged that so far as the second part of the definition of common gaming house is concerned essentially the wording is the same as in the unamended definition of common gaming house. He has urged that the Legislature has advisedly used the words otherwise howsoever. Those words go with the words profit or gain and more particularly with the word gain. Those words cannot be given any restricted meaning. They are the words of wide connotation and amplitude. Thus the Legislature has advisedly used these words to take within its sweep any possible manner of profit or gain and did not want to give a restricted meaning that the manner of securing profit or gain must be a manner like the charge for the use of a place house or room or instruments of gaming. Thus the Legislature has advisedly used these words to take within its sweep any possible manner of profit or gain and did not want to give a restricted meaning that the manner of securing profit or gain must be a manner like the charge for the use of a place house or room or instruments of gaming. All conceivable modes of earning either profit or gain were intended to be covered and that is why such words of widest connotation and amplitude have been used by the Legislature. ( 4 ) TO appreciate the rival contentions urged at the Bar we first propose to refer to the amended definition of common gaming house and we will keep in its juxtaposition the definition of the common gaming house given in the unamended definition. ( 5 ) THE amended definition reads:- in this Act common gaming house means (i) in the case of gaming (a) on the market price of cotton opium or other commodity or on the digits of the number used in stating such price or (b) on the amount of variation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation or (c) on the market price of any stock or share or on the digits of the number used in stating such price or (d) on the occurrence or non-occurrence of rain or other natural event or (e) on the quantity of rainfall or on the digits of the number used in stating such quantity any house room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming; (ii) in the case of any other form of gaming any house; room or place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning occupying using or keeping such house room or place by way of charge for the use of such house room or place or instrument or otherwise howsoever. In this Act place includes a tent enclosure space vehicle and vessel. In this Act place includes a tent enclosure space vehicle and vessel. The unamended definition reads:-IN this Act common gaminghouse means a house room or place in which any instruments of gaming are kept or used for the profit or gain of the person owning occupying or keeping such house room or place or of the person using such house room of place whether he has a right to use the same or not such profit or gain being either by way of a charge for the use of the instruments of gaming or of the house room or place or otherwise howsoever. If one makes a glance at this unamended definition and the amended definition by keeping them in juxtaposition it appears that in the amended definition certain categories of gaming have been excluded from the operation of the second part and those specified categories of gaming are dealt with in sub-clauses (a) to (e) of the first part of that definition. In cases of gaming other than those five specified cases of gaming. practically and essentially there is not much vital difference in the wording. In the unamended definition no doubt whether a person had a right to use the same or not (if in fact that person used such house room or place) was not material. ( 6 ) WE will bear in mind this definition and try to ascertain as to why this definition has been divided into two parts in the amended definition and what is its significance. In our opinion so far as other form of gaming i. e. gaming other than that of five categories of cases referred to in first part of this definition of common gaming house given in sec. 3 of the Act is concerned there is no material and vital change in the position in view of Amending Act No. 14 of 1949. ( 7 ) BY the first part of the definition of common gaming house five categories of gaming are specified in sub-clause (a) to (e ). It is not disputed that the gaming with which we are concerned viz. betting on Worli Matka figures will not be included within any of those five categories referred to therein. ( 7 ) BY the first part of the definition of common gaming house five categories of gaming are specified in sub-clause (a) to (e ). It is not disputed that the gaming with which we are concerned viz. betting on Worli Matka figures will not be included within any of those five categories referred to therein. In our opinion the purport of the first part of the amended definition is to indicate that in the cases of gaming covered by any of sub-clauses (a) to (e) any house room or place whatsoever in which such gaming takes place meaning thereby that gaming of the five categories of gaming referred to therein takes place such house room or place whatsoever will be common gaming house within the meaning of that definition given in the first part. Secondly any house room or place whatsoever in which any instruments of gaming are kept or used for such gaming. that house room or place whatsoever also will be covered by that definition. It therefore means that if any of these two conditions is satisfied that place without anything more would be a common gaming house. Element of purpose of securing profit or gain by an owner occupier or a person using or opening it is immaterial so far as that part is concerned. When one has to deal with a question whether a particular place house or room is a common gaming house within the amended definition of the first part of common gaming house he has to pose two questions to himself (1) is it a place where such gaming takes place or (2) is it a place where instruments of gaming are kept or used for such gaming. The moment one gets answer to any of these two questions in the affirmative such place house or room will be a common gaming house within the meaning of the amended definition given in the first part. ( 8 ) THE second part deals with cases of any other form of gaming meaning thereby gaming other than five categories of gaming specified in the first part of sub-clauses (a) to (e ). ( 8 ) THE second part deals with cases of any other form of gaming meaning thereby gaming other than five categories of gaming specified in the first part of sub-clauses (a) to (e ). That second part can be analysed in our opinion as follows:- (1) Common gaming house means any house room or place whatsoever (2)in which any instruments of gaming are kept or used (3) for the profit or gain of the person owning occupying using or keeping such house room or place (4) (i) by way of charge for the use of such house room or place or (ii) by way of charge for the use of instruments meaning thereby use of the instruments of gaming or (iii) otherwise howsoever. Emphasis in our opinion in this definition is on the object or purpose of keeping or using instruments of gaming Using or keeping of an instrument of gaming for a particular purpose is an important element. The question that will have to be posed would be as to why or for what purpose the instruments of gaming are kept or used in such place house or room. As to how the profit or gain is to be secured is subsequently illustrated. It is illustrated by stating that it may be by way of charge for the use of such house room or place or by way of charge for the use of instruments or otherwise howsoever. The disjunctive used is or. ( 9 ) IN our opinion a plain and natural meaning that could be ascertained from the language adopted by the Legislature is that it can well be said that profit on gain may be intended to be secured for the person answering the aforesaid description anyhow i. e. in any manner whatsoever. Any conceivable mode of such earning-profit or gain was intended to be covered by the Legislature. The Legislature in our opinion did not intend to restrict it. This mode need not be confined to any other manner similar to by way of charge for the use of such house room or place or use of such instruments. That appears to be the reason why the Legislature has advisedly chosen to use the words otherwise howsoever which are of widest connotation and amplitude. This mode need not be confined to any other manner similar to by way of charge for the use of such house room or place or use of such instruments. That appears to be the reason why the Legislature has advisedly chosen to use the words otherwise howsoever which are of widest connotation and amplitude. They are in our opinion deliberately chosen by the Legislature to take within its sweep all such conceivable modes of securing profit or gain for a person answering the aforesaid description and that would in our opinion take within its sweep expectation of profit or gain from the game itself. If the Legislature had not so intended in our opinion it could have advisedly used the words or such other manner. In our view the choice of the words otherwise howsoever clearly indicates that these general words of wide import were not intended to take colour from the preceding words. ( 10 ) IN Dr. Devendra M. Surti v. The State of Gujarat A. I. R. 1969 Supreme Court 63 the Supreme Court had to deal with the question Whether private dispensary of a doctor is or is not a commercial establishment within the meaning of the Act (Bombay Shops and Establishments Act 1949 It is observed therein:- it is true that sec. 2 (4) of the Act has used words of very vide import and grammatically it may include even a consulting room where a doctor examines his patients with the help of a solitary nurse or attendant. But in the matter of construing the language of sec. 2 (4) of the Act the principle of noscitur a sociis has to be adopted. The presence of the profit motive or the investment of capital tradition associated to the notion of trade and commerce cannot be given an undue importance in construing the definition of commercial establishment under sec. 2 (4) of the Act. The correct test of finding whether a professional activity falls within sec. 2 (4) of the Act is whether the activity is systematically and habitually undertaken for production or distribution of goods or for rendering material services to the community or any part of the community with the help of employees in the manner of a trade or business in such an undertaking. A professional activity must be an activity carried on by an individual by his personal skill and intelligence. A professional activity must be an activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction therefore between a professional activity and an activity of a commercial character and unless the profession carried on by a person also partakes of the character of a commercial nature he cannot fall within the ambit of sec. 2 (4) of the Act. In para 6 at pages 66 and 67 the pertinent observations made by the Supreme Court are: -. . . But in our opinion in the matter of construing the language of sec. 2 (4) of the Act we must adopt the principle of noscitur a sociis. This rule means that when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. The words take as it were their colour from each other that is the more general is restricted to a sense analogous to a less general. Associated words take their meaning from one another under the doctrine of noscitur a saciis the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it such doctrine is broader than the maxim Ejusdem Generis. In our opinion looking to the test laid down for application of this doctrine we are of the opinion that this doctrine cannot be pressed into service in the instant case. The words otherwise howsoever are not ambiguous. In our opinion the Legislature has advisedly used those words in contradistinction to the preceding words to take within its sweep all conceivable modes of securing profit or gain for the person answering the aforesaid description which would include even the expectation of a profit in the gaming itself. In our opinion neither a principle i. e. rule of construction of Ejusdem generis nor a broader principle noscitur a sociis can have any application and can be extended in the instant case. ( 11 ) IN this second part the aforesaid object or purpose of keeping or using instruments of gaming for the profit or gain of a person answering the description referred to therein is of a paramount consideration. The modes of securing profit or gain could be those specified therein viz. ( 11 ) IN this second part the aforesaid object or purpose of keeping or using instruments of gaming for the profit or gain of a person answering the description referred to therein is of a paramount consideration. The modes of securing profit or gain could be those specified therein viz. by way of charge for the use of such house room or place or by way of charge for the use of instrument or it may be intended to be secured any how meaning thereby by any mode which may have no connection whatsoever with the two preceding ones. The last general mode referred to therein cannot be given any restricted meaning in view of such words used in contra-distinction (otherwise howsoever) to the preceding words. ( 12 ) BY Bombay Amending Act No. 14 of 1959 cases covered by first part are excluded from the operation of the second part. In respect of five specified cases of gaming therein the element of profit or gain to be secured for a person answering the description referred to in the second part is of no relevance or is of no consequence. Irrespective of it in cases of these specified categories of gaming any house room or place whatsoever will be a common gaming house if any one of the two conditions referred to therein is satisfied. ( 13 ) READING of sec. 4 of the Act clearly indicates that clauses (a) to (d) of that section lays emphasis on the purpose and that purpose is the purpose of a common gaming house. ( 14 ) INSTRUMENTS of gaming are defined as under:- 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 documents 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 as it now stands includes broadly speaking three categories:- (1) Articles used as a subject or means of gaming (2) Documents used as a register or record of evidence of gaming (3) The proceeds or winnings of gaming. ( 15 ) SEC. 7 of the Act deals with Presumptive proof of keeping or gaming in common gaming house. This definition as it now stands includes broadly speaking three categories:- (1) Articles used as a subject or means of gaming (2) Documents used as a register or record of evidence of gaming (3) The proceeds or winnings of gaming. ( 15 ) SEC. 7 of the Act deals with Presumptive proof of keeping or gaming in common gaming house. When a place house or room is searched under the authority of warrant obtained as contemplated is by sec. 6 of the Act if the conditions referred to in sec. 7 are satisfied two presumptions are to be drawn:- (1) that such house room or place is used as a common gaming house and (2) 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. No doubt these presumptions are rebuttable presumptions. Until the contrary is proved such presumptions have to be drawn. ( 16 ) ANOTHER important section for understanding the scheme of the Act is sec. 9. It reads:- it shall not be necessary in order to convict a person of any offence against any of the provisions of secs. 4 and 5 to prove that any person found gaming was playing for any money wager or stake. Sec. 4 of the Act provides punishment for 8 person who opens keeps or uses any house room or place for the purpose of a common gaming house etc. Sec. S provides punishment for a person whoever is found in any common gaming-house gaming or present for the purpose of gaming. It is thus evident that even a person who is not found gaming in any common gaming-house but is only present for the purpose of gaming commits an offence which is punishable under sec. 5 of the Act. ( 17 ) SEC. 12 of the Act provides punishment for a person who is found gaming or reasonably suspected to be gaming in any public street or thoroughfare or in any place to which the public have or are permitted to have access or in any race-course. . . . . . ( 18 ) SEC. 13 of the Act states that nothing in this Act shall be held to apply to any game of mere skill wherever played. . . . . . ( 18 ) SEC. 13 of the Act states that nothing in this Act shall be held to apply to any game of mere skill wherever played. It means that if the game played is a game of mere skill and there is no element of chance wherever it is played it will not be an offence punishable under the. 44. ( 19 ) IN view of the definition of the word gaming in the first part of sec. 3 such betting falls undoubtedly within the definition of gaming given therein. That position has not been challenged by Mr. Thakore before us and it cannot be challenged. ( 20 ) IN our opinion looking to these relevant provisions it is evident that it is not necessary to prove that profit or gain has actually resulted. If profit or gain is the probable and expected result and if that is the purpose or object of keeping or using the instruments it would be sufficient to bring the case within the scope of the definition. In this connection it is very important to bear in mind that the question whether the instruments of gaming are kept or used for the purpose viz. securing profit or gain of the person owning occupying using keeping etc. was very material for all kinds of gaming without any exception before Amending Act No. 14 of 1959. But the amended definition of common gaming house makes a distinction between different kinds of gaming viz. the gaming referred to in sub-clause (a) to (e) in the first part of the definition and other kinds of gaming covered by the second part. So far as the gaming of categories referred to in the first part is concerned the question of profit or gain to an owner occupier etc. is wholly immaterial. There is no escape from that conclusion on closely reading that part of the definition. . ( 21 ) SO far as other kinds of gaming falling in the second part are concerned the requirement about profit or gain for the person answering the description referred to in that second part of the definition even after the amendment of 1959 in our opinion remains the same. It is sufficient if it is one in which instruments of gaming are kept or used for the purpose referred to therein. It is sufficient if it is one in which instruments of gaming are kept or used for the purpose referred to therein. The profit or gain may not actually result from such use. But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments for securing profit or gain of the person answering-the description it would be sufficient to bring the case within the scope of the definition. ( 22 ) IN our opinion sine qua non for pressing into service the provisions of that second part is the purpose of keeping or using the instruments. That purpose of keeping or using the instruments plays a decisive part. It is an important element to be proved That purpose must be to secure profit or gain for the person answering the description referred to therein and that profit may be intended to be secured by the modes specified therein or by any conceivable mode as stated by us earlier and that is why the Legislature has used the words of widest import and connotation viz. otherwise howsoever. ( 23 ) WE have also to bear in mind the object of the Act. It clearly appears that by this amended definition also the Legislature intended to make the provisions of this Act more stringent and make the definition of wider import by dividing this definition in two parts. If we give a narrower construction to these words otherwise howsoever which are of widest import and connotation it would restrict the effect of the Act instead of promoting the object of the Act. While in interpreting these Words therefore we have to bear in mind that important fact. ( 24 ) LEARNED author Maxwell on The Interpretation of Statutes 11 Edition at pages 334 and 335 has under the caption General Object of Act stated:-THE general object of the Act also sometimes requires that the final generic word shall not be restricted in meaning by its predecessors. Thus the Frauds by Workmen Act 1777 (c. 56) sec. ( 24 ) LEARNED author Maxwell on The Interpretation of Statutes 11 Edition at pages 334 and 335 has under the caption General Object of Act stated:-THE general object of the Act also sometimes requires that the final generic word shall not be restricted in meaning by its predecessors. Thus the Frauds by Workmen Act 1777 (c. 56) sec. 10 which after reciting that stolen materials used in Certain manufacturers are often concealed in the possession of persons who have received them with guilty knowledge and that the discovery and conviction of the offenders is in consequence difficult proceeds to authorise justices to issue search warrants for purloined materials suspected to be concealed in any dwelling-house outhouse yard garden or other place has been held to include under the last word a warehouse which was a mile and a half from the dwelling-house. Though such a warehouse would probably not be usually considered as ejusdem generis with a dwelling-house coupled with its enumerated dependencies it was reasonable having regard to the preamble and the general object of the statute to think that the warehouse was within the contemplation of the Legislature as it was a very likely place for the concealment against which the enactment was directed and a narrower construction would have restricted the effect instead of promoting the object of the Act. The requirement of sec. 32 of the Municipal Corporations Act 1835 (c. 76 ). that municipal voting papers should be signed by the voter and state the name of the street lane or place in which the property was situated in respect of which he claimed to vote was considered satisfied by a statement of the parish where the property lay the object of the provision being apparently the identification of the voter. Several decisions on the Betting Act 1853 (c. 119) are instructive examples of the application of the above-mentioned rules as to the effect of words of analogous meaning on each other and that of specific words on the more general one which closes the enumeration of them as well as of their subordination to the more general principle of gathering the intention from a review of the whole enactment and giving effect to its paramount object. ( 25 ) WITH these observations and the analysis of the relevant definition we now propose to refer to the difficulties envisaged by Mr. ( 25 ) WITH these observations and the analysis of the relevant definition we now propose to refer to the difficulties envisaged by Mr. Thakore or by the referring Judge if this view proposed by us is taken to be the correct view. ( 26 ) IN the referring judgment it is stated:- definition of common gaming-house would show that it is divided into two parts and if the case falls in the first part there is not much difficulty in arriving at a conclusion whether the house in question is a common gaming house. First part is divided into five sub clauses. It appears that if in any house the owner or occupier accepts bets failing within first five sub-clauses then without anything more the house in question would be a common gaming-house. If two facts are established namely giving or accepting of the bets in respect of any of the gaming mentioned in clauses (a) to (e) acceptances thereof in a house by the owner or occupier thereof would be per se and without anything more convert the house into a common gaming house. It may also be pointed out that Worli Matka game does not fall in any of the five clauses. It appears to be a game of recent origin and the Legislature possibly has not taken any notice of it as yet. Now if the game does not fall within any of the five sub-clauses and yet a particular game comes within the definition of gaming as set out in sec 3 and the same is being conducted in any house room pr place the case must fall within second part in order to convert that house room or place into a common gaming house. In order to attract the second part of the definition of common gaming house in respect of gaming other than those mentioned in clauses (a) to (e) of the first part it must be shown that there is a house room or a place in which instruments of gaming are kept or used and they are either kept or used for the profit or gain of the person owning occupying using or keeping such house room or place or by way of charge for the use of such house room or place or instrument or otherwise howsoever. For the time being I will keep our of consideration expression otherwise howsoever and read the sub-clause without those words. If the words otherwise howsoever are excluded from the second part of the definition there is not much difficulty in reaching the conclusion that before any house room or place can be dubbed as common gaming house it must be shown that the instruments of gaming are kept in that house room or place or the instruments of gaming are used and they must be kept or used for the profit or gain of the person who is the owner or occupier of the house room or place and profit or gain must be by way of charge for the use of such house room or place or for the use of instruments of gaming. Upon this reading any profit or gain or hope of profit or gain from gaming itself would not convert the house room or place into a common gaming house. However profit or gain must be available to the person who is being charged as keeper of common gaming-house from the use of the house or use of the instruments of gaming in the house. If a house were to become a common gaming-house only because the owner or occupier of the house is likely to participate in the gaming and may hope for profit or gain from the gaming itself there was no necessity for providing for an elaborate definition incorporating therein that the profit or gain or a hope thereof by way of charge for the use of the house or for the use of instrument of gaming. That would be a mere surplusage because in any event one mast readily assume that whenever one gambles or indulges into gambling it is necessarily coupled with the hope of profit or gain. No one indulges into gambling in the hope of losing always though that may be a misfortune of anyone. The court would readily assume that whoever indulges into gambling does it in the hope of profit or gain. No one indulges into gambling in the hope of losing always though that may be a misfortune of anyone. The court would readily assume that whoever indulges into gambling does it in the hope of profit or gain. If therefore the owner or occupier of a house permits his house to be used by others for the purpose of gambling then there would be a necessary inference that it was for the profit or gain arising out of gambling but not arising from the use of the house or use of the instrument of gaming kept therein. Second part of the definition clearly indicates that profit or gain of the person owning occupying using or keeping such house room or place must arise or must be likely to arise by the use of the house or use of the instrument of gaming. Legislative intent is clearly discernible behind this provision namely to bring to book persons who permit their house to be used by others providing facility for gaming without participating therein. The owner of a house may keep all instruments of gaming and it is open to anyone to participate in gambling being carried on therein by other likeminded persons on paying a certain charge for the use of the house and/or for the use of the instruments of gaming for which charge is collected by owner or occupier of the house. To illustrate an owner or occupier of a house may provide all facilities such as keeping of cards counters small coins fans lights etc. and also provide food and drink to participants and collects fixed charge either per hour or per each game or withdraws a certain fixed amount from pool-money without even participating into gambling. This would be profit or gain of the owner or occupier of the house by way of a charge for the use of the house or use of instruments kept therein. That is the profit or gain or even hope thereof referred to in the second part of the definition. If the second part of the definition is not distinguishable from the first part there was no justification for dividing the definition into two parts because in every case almost at the cost of repetition the court would readily infer hope of profit or gain from gambling. If the second part of the definition is not distinguishable from the first part there was no justification for dividing the definition into two parts because in every case almost at the cost of repetition the court would readily infer hope of profit or gain from gambling. In our opinion with respect we may say that there is some error committed in understanding the real significance of division of the definition of common gaming-house in two parts in sec. 3 of the Act. We have already stated earlier as to when any house room or place will be termed Common gaming-house within the meaning of the definition falling in the first part on satisfaction of any one of the conditions referred to therein. Element of profit or gain to be secured for the owner or occupier of the place house or room etc. is wholly immaterial. So for as other gaming which falls within the second part of that definition is concerned the purpose of keeping instruments of gaming or using them for the profit or gain of a person owning occupying using etc. is a very material factor. It is the purpose of keeping such instruments of gaming or using such instruments of gaming that is a material factor. The profit or gain to be secured by a person owning occupying etc. may be by one of the two modes specified therein or by any other conceivable mode whatsoever. The real crux is not the manner of deriving profit or gain but the purpose for which the instruments of gaming are kept or used. One must be able to arrive at a finding that they were kept or used for the profit or gain of the person owning occupying using or keeping such house room or place. In our opinion the Legislature has made this all-embracing definition to take within its sweep all such persons who invite people for such gaming in the place room or house kept or opened by them with the object of securing profit or gain in any manner whatsoever by keeping or using instruments of gaming for the aforesaid purpose. ( 27 ) IT is contended by Mr. Thakore that if such a meaning is given any police officer can obtain such a warrant and harass any citizen and it will be impossible for the citizen to rebut the presumption. ( 27 ) IT is contended by Mr. Thakore that if such a meaning is given any police officer can obtain such a warrant and harass any citizen and it will be impossible for the citizen to rebut the presumption. He has urged that it is conceivable that a few friends may collect at one of the friends place and play a game of cards with money for a pastime or for the purpose of relaxation. A friend may invite for such a purpose his few friends. In that event such a person will come within the mischief of the Act if such a place is raided and searched under the authority of the warrant obtained under sec. 6 of the Act. In our opinion there could not be any such difficulty ordinarily. Warrant cannot be obtained so easily. Legislature has kept sufficient safeguards and it is only after the satisfaction of certain conditions that a warrant has to be issued by the competent authority. Furthermore the presumptions that are to be raised on the find of instruments of gaming as contemplated therein or upon seizure of the articles reasonably suspected to be instruments of gaming are rebuttable presumptions. One can bring on record the circumstances to show that the instruments of gaming were not kept for the purpose of securing any profit or gain for the person occupying owning or using such place. From the mere result that one earns in the a gaming itself one will not be justified in concluding that such a place is a common gaming house. What is material is whether in such a place room or house instruments of gaming were kept or used for the purpose of securing profit or gain for the person answering the description referred to therein. That intention of keeping or using such instruments of gaming is a sine qua non and is the most important factor. In a hypothetical case referred to by Mr. Thakore therefore presumption can easily be rebutted. ( 28 ) IN our opinion therefore there are no difficulties in interpreting the second part of the definition as we propose to do. That intention of keeping or using such instruments of gaming is a sine qua non and is the most important factor. In a hypothetical case referred to by Mr. Thakore therefore presumption can easily be rebutted. ( 28 ) IN our opinion therefore there are no difficulties in interpreting the second part of the definition as we propose to do. In our opinion if we give a restricted meaning to these words of widest import and connotation otherwise howsoever we would be practically rendering those words nugatory and we would be substituting words having different meaning for the words which the Legislature has advisedly used for carrying out the object of the Act. In our opinion amendment of this definition by Act No. 14 of 1959 does not make any vital difference in this behalf and this phrase of widest import and connotation will have to be given the same meaning as it was given in the unamended definition. ( 29 ) IT is true that a Division Bench of the Allahabad High Court in Lachchiram v. Emperor 23 Criminal Law Journal (1922) page 196 has made observations while interpreting common gaming house similarly defined as defined in the unamended definition in the Act which lends support to the argument advanced by Mr. Thakore. It is observed therein:- instruments of gaming include articles used as a means or appurtenance of or for the purpose of carrying on or facilitating gaming. The words common gaming-house do not mean simply a house in which instruments of gaming are kept or used for the purpose of carrying on or facilitating gaming. Before convicting a person found in possession of instruments of gaming for keeping a common gaming house it must be established that the owner or occupier takes a fixed commission which is irrespective of the result of the gaming or at the outside that he manipulates the conditions in such a manner that he cannot possibly lose. Mr. Thakore has also urged before us that the two specified modes of earning-profit or gain-in the second part of the amended definition which are also referred to in the unamended definition indicate certainty of profit. There is no possibility of loss contemplated as certain charges are to be made for the use of the house or instruments. Mr. Thakore has also urged before us that the two specified modes of earning-profit or gain-in the second part of the amended definition which are also referred to in the unamended definition indicate certainty of profit. There is no possibility of loss contemplated as certain charges are to be made for the use of the house or instruments. It is therefore contended that even if there be any other mode contemplated by the Legislature it may be the mode where there is always a profit and there is no chance of any loss. In our opinion this argument is not well founded. Expectation of profit would be sufficient. It is not necessary that there should be absolute certainty of profit and there should be no possibility of loss. ( 30 ) WE may at this stage before referring to the Bombay decisions refer to an earlier decision of the Allahabad High Court. A single Judge of that High Court in Emperor v. Abdul Sattar I. L. R. 27 Allahabad 557 has observed: -. . The words in that definition or otherwise howsoever cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem generis with what precedes those words. In the case the single Judge of that High Court had to decide the facts were as under:-THE Magistrate of the District had given the accused a licence to play a game called French Croquet but as a matter or fact when the house was raided by the police another game was in progress for which no license had been obtained. In this game the accused managed the tables and the profit was derived from the odds being largely in favour of the bank. THE contention raised was that the house could not properly be called a common gaming house because the applicants profit was not derived from any charge for the use of the house or of the instruments of gaming or in any manner ejusdem generis. That contention was negatived. ( 31 ) A Division Bench of the Bombay High Court in Emperor v. Dattatraya Shankar Paranjpe 55 Bombay Law Reporter 1089 had an occasion to interpret these very words used in the unamended definition of common gaming house. Mr. That contention was negatived. ( 31 ) A Division Bench of the Bombay High Court in Emperor v. Dattatraya Shankar Paranjpe 55 Bombay Law Reporter 1089 had an occasion to interpret these very words used in the unamended definition of common gaming house. Mr. Shah the acting C. J. after referring to the definition observes at pages 1091 and 1092:-IT is essential for the prosecution under this definition to establish that instruments of gaming were kept or used in the house room or place for the profit or gain of the person owning occupying using or keeping the house room or place. It may be done by establishing that the person did so either by a charge for use of the instruments of gaming or of the house room or place or otherwise howsoever. The expression otherwise howsoever appears to be very comprehensive and does not suggest any limitation such as is contended on behalf of the accused. After referring to the aforesaid decision of the Allahabad High Court in Lachchi Ram v. Emperor (Supra) and the ratio of that decision it is observed:- we have heard an interesting argument on the question as to how far the words justify the somewhat restricted meaning which has been put upon the definition by the learned Judge of the Allahabad High Court and after a careful consideration of the arguments urged on either side and with great respect to the learned Judge have come to the conclusion that the words of the definition which we have to construe here would not have their full meaning if we were to accept the narrow construction. I do not think that on a proper construction of the definition the prosecution can be restricted for the purpose of proving that a particular house room or place is a common gaming house to the two alternatives mentioned in the case of Lachchi Ram v. Emperor. It is sufficient if the house is one in which instruments of gaming are kept or used for the profit or gain of the person keeping or using such place i. e. where the person keeping or using the house knows that profit or gain will in all probability result from the use of the instruments of gaming. The profit or gain may not actually result from such use. The profit or gain may not actually result from such use. But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments it would be sufficient in my opinion to bring the case within the scope of the definition. At the same time it is clear that the prosecution must establish that the purpose is profit or gain. This may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house room or place or in any other manner that may be possible under the circumstances of the case having regard to the nature of the game carried on in that house. This decision lends support to our conclusion and negatives the contention urged by Mr. Thakore. ( 32 ) IN Emperor v. Chimanlal Sankalchand 47 Bombay Law Reporter 75 a Division Bench of the Bombay High Court has considered several decisions and observed at page 76:- the question whether it is necessary to prove expressly that the person charged with keeping a common gaming house made a profit or gain out of the gambling carried on in that house has been discussed in various rulings of different High Courts. In Lachchi Ram v. Emperor (1922 A. I. R. All. 61) the Allahabad High Court interpreting corresponding definition of a common gaming house in sec. 3 of the United Provinces Public Gambling Act 1887 which is similarly worded held that it must be established that the owner or occupier takes a fixed commission which is irrespective of the result of the gaming or at least that he manipulates the conditions in such a manner that he cannot possibly lose. The correctness of that decision was doubted in a later case and the question was referred to a full Bench in Emperor Atma Ram ( (1924) I. L. R. 46 All. 447 F. B. ). The question referred to the full bench was whether the words for the profit necessitated proof that proof was certain to result or whether it was sufficient that the instruments were used in the hope of profit. 447 F. B. ). The question referred to the full bench was whether the words for the profit necessitated proof that proof was certain to result or whether it was sufficient that the instruments were used in the hope of profit. But that question was not decided by the full bench as it found that in the particular case profit was certain to result and therefore in any event the particular case came within the more strict interpretation assuming that interpretation was the correct one. The ruling of the full bench was considered by Boys J. in Emperor v. Ismail ( (1927) I. L. R. 49 All. 562) and he observed (page 564):- if I had to decide the point I should unhesitatingly hold that it was not necessary to prove that profit was certain to result. In my opinion a mere expectation of profit would suffice. Lachchi Rams case was considered by a Division Bench of this court in Emperor v. Dattatraya (1923) 25 Bombay Law Reporter 1089) and was dissented from. It was held that to constitute a common gaming house it was sufficient if it was one in which instruments of gaming were kept or used for the profit or gain of the person keeping or using such place i. e. where the person or using the keeping house knew that profit or gain would in all probability result from the use of the instruments of gaming. The profit or gain may not actually result from such use. But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments it would be sufficient to bring the case within the scope of the definition. It is argued by Mr. Pochaji on behalf of the accused that even in that case it was observed that the prosecution must establish that the purpose was profit or gain and that might be done either by showing that the owner was charging for she use of the instruments of gaming or for the use of the room or place or in any other manner. The words or in any other manner (which were used there instead of the words appearing at the end of the definition or otherwise howsoever) cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem generis it what precedes those words and hence even the hope of making a profit out of the gambling itself is sufficient to satisfy the requirement of the definition of common gaming house. It may happen that the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it on the hope of making a profit although he may not necessarily make it every time. Such a hope is sufficient to make the house a common gaming house and the occupier liable for keeping such a house. These observations made in categorical terms by the Division Bench of the Bombay High Court clearly indicate that the ratio of that decision is that if the occupier of the house allows his house to the public for gambling and he himself takes part in the hope of making profit such a hope is sufficient to make the house a common gaming house and the occupant is liable for keeping such a house provided that was the purpose of keeping or using the instruments. ( 33 ) AS said earlier by us at the cost of repetition we may say that the material factor to be considered is whether the instruments of gaming were kept or used in such a place house or room for the purpose of securing profit or gain for the person answering the description referred to therein. It may be expected even from the gaming itself. There is therefore in our opinion no difficulty in understanding the ratio laid down by the decisions of the Division Benches of the Bombay High Court. ( 34 ) IN cases of gaming which could not be covered by the first part of the amended definition and would fall within the definition of the second part of common gaming house those very words of widest import and Connotation have been allowed to remain on the statute book by the Legislature. ( 34 ) IN cases of gaming which could not be covered by the first part of the amended definition and would fall within the definition of the second part of common gaming house those very words of widest import and Connotation have been allowed to remain on the statute book by the Legislature. If the Legislature had not intended the meaning which was given to these words in the aforesaid decisions which were given prior to this amendment by Bombay Amending Act No. 14 was introduced in the year 1959 the Legislature would have used suitable expression. That has been not done. That is another indication that the Legislature has advisedly used these words of widest import and connotation to bring within its sweep all such conceivable modes of Securing profit or gain of the person answering the description referred to therein. ( 35 ) IT is true that a single Judge of the Bombay High Court (Chitle J.) in an unreported decision in Criminal Appeal No. 551 of 1964 in the case of State v. Vardilal Natuchand decided on 14th January 1965 has taken a view Which supports the argument advanced by Ms. Thakore. After referring to the rival contentions urged at the Bar Chitle J. has observed in my opinion there is considerable force in this contention of Mr. Jethmalani. While considering this part of the definition of common gaming house it would be useful to refer to secs. 4 5 and 12 of the Act. Sec. 4 (a) says whoever opens keeps or uses any house room or place for the purpose of a common gaming house. Prom the wording of this section it is clear that this section refers to a case in which a person allows or invites others to use a particular place as a common gaming house. Sec. 5 refers to gaming in a common gaming house or remaining present for the purpose of gaming. Sec. 12 makes gaming in a public street punishable. These provisions make it clear that the Act has made a distinction between a person himself gaming and a person using a place as a common gaming house i. e. using a place for allowing or inviting others there for the purpose of gaming. However in the second part of the definition of a common gaming house the words by way of charge for the such house. However in the second part of the definition of a common gaming house the words by way of charge for the such house. room or place or instrument are material. Reading the definition as a whole it is clear that these words go with the word profit hence in my opinion the profit contemplated by this part of the definition is profit not arising out of gaming itself but profit arising by way of charge for the use of such house room or place or instrument or in some such similar manner. It is in my opinion quite clear that if that was not the object of the Legislature the definition could have been much simpler It would have been enough to state in the definition that a room where gaming goes on and profit is earned would be a common gaming house. That however does not seem to be the object. With great respect we may say that this view expressed does not appear to be correct. It runs counter to the view expressed by the Division Benches of the Bombay High Court in the aforesaid two decisions referred to by us earlier. One of those decisions reported in 47 Bombay Law Reporter 75 and another unreported decision in Cr. Appeal No. 615 of 1959 decided on 1-2-1960 have been referred to by Chitle J. and they have been brushed aside on the ground that those cases were decided prior to the amendment and the precise question that arose before him did not arise in those cases. In the aforesaid unreported decision it is Dot indicated as to how the amended definition makes difference in the position in cases of gaming that would fall within the purview of the second part of the definition of common gaming house wherein the same words of widest import and connotation find place and are continued by the Legislature. In our opinion this amendment introduced in sec. 3 of the definition of common gaming house by Amending Act No. 14 of 1959 does not really affect the position in regard to the cases falling within that second part. It appears that the law is directed against those who enable the premises to use as common gaming house. In our opinion this amendment introduced in sec. 3 of the definition of common gaming house by Amending Act No. 14 of 1959 does not really affect the position in regard to the cases falling within that second part. It appears that the law is directed against those who enable the premises to use as common gaming house. If the purpose of keeping instruments of gaming or using them in such place house or room is to earn profit or gain of the person answering the description referred to therein the Legislature even after the amendment clearly intended to take such place house or room within its sweep. We therefore reject the submission made by Mr. Thakore in this behalf. ( 36 ) IN the instant cases the validity of the search warrant was not challenged in any of the courts below and before us also. ( 37 ) RELYING upon the evidence of P. S. I. Rathod in Criminal Revision Application No. 490 of 1971 who has explained the nature of the game in view of his experience the two courts below have accepted his evidence and found that the slips and other records found were in respect of Worli Matka gaming transactions. Original slips were found with some of the petitioners. Counter-foils of them were found with petitioners Nos. 2 and 3 who are said to be the servants of petitioner No. 1. Money were also found in boxes as well as on the person of these persons. The learned trial Judge has found that these were the instruments of gaming. He was thoroughly justified in arriving at that finding in view of the evidence. It is significant to note that P. S. I. Rathod has not been effectively cross-examined on that point. The only fact brought out was that he himself did not play the said game. It is not necessary for the person who gives his opinion in this behalf that he should have played the game. By filing a number of cases etc. he had acquired the knowledge to decipher such records and slips. He has explained the game itself. Boards etc. where also found wherein opening and closing figures were written. When a place is raided and searched under the authority of a warrant obtained under sec. By filing a number of cases etc. he had acquired the knowledge to decipher such records and slips. He has explained the game itself. Boards etc. where also found wherein opening and closing figures were written. When a place is raided and searched under the authority of a warrant obtained under sec. 6 of the Act and the instruments of gaming have been seized from such place or about the persons found therein or even if any other things seized are such that would satisfy the court that a police officer who enters such a house room or place had reasonable ground for suspecting that the things so seized were the instruments of gaming seizure of such instruments or things will be the evidence until the contrary is proved that such house room or place is used as a common gaming house and the person or persons found therein were then present for purpose of gaming There is no evidence led by defence to rebut these presumptions arising. The petitioners were given opportunity to explain the evidence appearing against them. There is no effort made to explain the same. There is no evidence practically led to rebut the presumptions arising. There are no circumstances also brought on the record to rebut the presumptions. Mr. Thakore has fairly conceded to this position. .