JUDGEMENT 1. This is an appeal against the order of acquittal of the accused Chotu Karmali who was challenged by the Daman Police upon a charge of offence of "gaming" punishable under Section 13 of the Public Gambling Act. 2. The prosecution case was that on 4-9-1972 at about 7-30 p.m. P.Ws. 2 and 3, who are Police Head Constables attached to Daman Police Station, whilst on patrol duty found that the accused was accepting matka bets from the public, near a Petrol Pump. P.W. 2 took 2 panchas and raided the place and attached a matka slip book, half carbon paper, some matka bill papers, ball pen and a cash of Rs. 24.35 from the spot. 3. The accused has made a denial simpliciter. The trial Magistrate found that there was material contradiction in the statement of P.W. 1 on one side and P.Ws. 2 and 3 on the other side; that there was no corroboration to the testimony of P.Ws. 2 and 3 from any independent witness; that the game of "matka" is not mentioned as offence under Section 13 of the above said Act and that it was incumbent upon the prosecution to show that playing matka is a game of chance and that the prosecution has failed to show that. He, therefore, acquitted the accused. 4. The prosecution evidence as pointed out above consists of the deposition of 3 witnesses only. P.Ws. 2 and 3 are Police Head Constables who have prosecuted the accused. They are therefore interested witnesses and their testimony should be weighed cautiously. The only independent witness is the panch witness (P.W. 1). However, this witness has been of no help to the prosecution for he has only stated that the Police showed him some muddemal which was lying on the ground and that it was attached by the Police. He did not know to whom that Muddemal belonged or from whose custody it was attached. In face of this testimony and as both P.Ws. 2 and 3 being interested witnesses it cannot be said there is evidence to show that these articles belonged to the accused. Even assuming that the Muddemal was seized from the accused it cannot be directly concluded therefrom that the accused was gambling in public. 5. On analysing the testimony of P.Ws. 2 and 3 being interested witnesses it cannot be said there is evidence to show that these articles belonged to the accused. Even assuming that the Muddemal was seized from the accused it cannot be directly concluded therefrom that the accused was gambling in public. 5. On analysing the testimony of P.Ws. 2 and 3 it is seen that although according to them they saw the accused accepting matka bets from the public, they have not produced any of the members of the so called "public" before the Court as a witness. In the cross-examination, P.W. 2 stated that he saw some persons giving money to accused at the time of raid but he does not know the names of those persons and that when he attempted to arrest them, they ran away. It is significant to note that the raiding party consisted of at least 3 persons. They went with the purpose of raiding and yet they could not succeed in getting hold of even one member of the public, who according to them were betting with money. P.W. 3 deposed that he saw the accused writing matka numbers in a book, it is not known why the witness has chosen to refer to the numbers written by the accused as "matka numbers". As rightly pointed out by the learned Magistrate the prosecution did not adduce evidence to show that the accused was playing the game of matka which is "gaming" within the meaning of Section 13 of the Public Gambling Act. 6. Shri Ramani, learned Advocate for the accused has raised a very pertinent point which merits consideration. He argues that the statement of P.W. 2 that the accused was accepting matka bets from the people who were betting with money is only the expression of the opinion of the witness, because what he had actually seen is the accused merely receiving some money. He deposed to no other facts which made him opine that the money was received for betting. He further argues that the mere receiving of money by the accused is not gambling within the meaning of the Public Gambling Act but only a preparation for betting. In support of his contention he relies on a decision reported in AIR 1960 Punj 72 : (1960 Cri LJ 275 (1) ). There is weight in this contention. 7. He further argues that the mere receiving of money by the accused is not gambling within the meaning of the Public Gambling Act but only a preparation for betting. In support of his contention he relies on a decision reported in AIR 1960 Punj 72 : (1960 Cri LJ 275 (1) ). There is weight in this contention. 7. The next contention raised by Shri Ramani is that Section 13 of the said Act contemplates that the offence of gaming should be by means of some instruments of gambling. In the present case no instruments of gambling were found in possession of the accused and, so long as there are no instruments of gambling attached by the Police or no evidence to show that the accused was seen gambling by means of instruments of gambling, there is no offence committed. In support of his contention he relies on a decision reported in AIR 1959 All 799 : (1959 Cri LJ 1397). Both these contentions are not without force. 8. I have already analysed the prosecution evidence, and I do not find that there is any ground to interfere with the order of the acquittal delivered by the Judicial Magistrate, F.C., Daman. This appeal is without any force and hence it fails. ORDER The appeal is dismissed. Appeal dismissed.