JUDGMENT - M.S. APTE, J.:---The State has preferred this appeal against the order passed by the Judicial Magistrate, First Class, Sholapur, acquitting the accused of the charge made against them for offence under Section 4 and 5 of the Bombay Prevention of Gambling Act, 1887, hereinafter referred to as the Gambling Act. On the evening of July 10, 1973 round about 6 p.m. when Charansing Azad (P.W. 4), the Additional Superintendent of Police, Sholapur, was present in Navi Ves Police Chowky at Sholapur along with B.B. Sanglikar, Inspector of Police attached to the Foujdar Chawadi Police Station and other members of the staff, information was received that in house No. 96, Gold Finch Peth, in the City of Sholapur, which belonged to accused No. 1 Keshav Bhaurao Mulik was being used as common gaming house for accepting matka bets. On receiving this information, these Police Officers verified the truth of the information and thereafter proceeded wtih two panchas by name Sangareshwar (P.W. 2), and Chandrakant (P.W. 3), to raid this house. When the raiding party entered the ground floor of the house, they found the four accused, who are respondents in this case, present in the house. There were also two telephone connections bearing Nos. 4032 and 4388 standing in the name of accused No. 1. The raiding party found three account books which are produced at Exhs. 23, 24 and 25 and about 75 slips attached to a wooden pad and a plastic bag containing Rs. 172.49 lying on the floor near about the place where accused No. 2 was sitting on the floor. Names of different persons were written on these chits and against them some figures were noted. Accused Nos. 3 and 4 were also sitting on the floor at some distance from accused No. 2. There was a raised platform and there was a cupboard on the platform and accused No. 1 was sitting on that platform near the cup-board while all the accused were sitting on the floor below the platform. Besides the above 75 chits, some more similar chits were also found lying on the floor. A search of the accused was taken, but nothing was found on their person except an amount of Rs. 60.05 recovered form the person of accused No. 4. On a search of the cupboard being taken, however, cash of Rs. 49482/- kept in the two drawers was recovered. A search of the accused was taken, but nothing was found on their person except an amount of Rs. 60.05 recovered form the person of accused No. 4. On a search of the cupboard being taken, however, cash of Rs. 49482/- kept in the two drawers was recovered. Besides, cash of Rs. 29.77 was found in a rexin bag kept in the cupboard. In addition to this, currency notes of Rs. 150/- of different denominations which were in a soiled condition were found in the cupboard. All these articles were seized by the police. It was stated that while the search was going on, some trunk calls were received from places like Tuljapur, Sangola, Pandharpur and from some other places making enquiry about the matka figures. However no positive evidence in that behalf was led by the prosecution to show that the calls were addressed to a particular person and that they were made by any particular person. According to the prosecution, however, the entries made in the three account books as also on the chits were the record of bets given by different person. It is stated that accused Nos. 2 to 4 were acting as sub-agents of accused No. 1 who was the principal agent of the person who conducted this matka betting from Bombay. There is, however, no evidence to substantiate this allegation even. However, it was alleged, as already stated above, that the books of account and the several chits was the record of matka betting and that the cash found at different places in the house as also on the person of accused No. 4 were the proceeds of matka betting. All the four accused were, therefore, prosecuted the allegation against accused No. 1 being that he maintained the common gaming house and accepted satta betting directly from some persons as well as indirectly through his ub-agents like accused Nos. 2 to 4 and the allegation against accused Nos. 2 to 4 being that they also accepted matka betting from different persons as agents of accused No. 1. 2 to 4 and the allegation against accused Nos. 2 to 4 being that they also accepted matka betting from different persons as agents of accused No. 1. On these allegations accused No. 1 was presumably charged for an offence under section 4 while the remaining three accused were charged for the offence under Section 5 of the Bombay Prevention of Gambling Act, although it is not so stated very specifically in the charge-sheet but a bald allegation has been made that the accused committed offences under sections 4 and 5 of the said Act. The accused pleaded not guilty to the charge. Accused No. 1 while admitting that some Police Officers did visit his house denied that any account books or chits were seized from his house. He further stated that on being asked by the police, he did produce cash from the cup-board but he maintained that it was not the proceeds of matka betting as alleged by the prosecution. According to him, he had collected this amount to meet the expenditure of the construction of a second storey of his house. The defence of accused Nos. 2 to 4 was one of total denial. They even denied their presence in the house of accused No. 1 alleged by the prosecution. The prosecution in support of the charge, examined Charansing Azad, the Additional Superintendent of Police, B.B. Sanglikar, Inspector of Police, and the two panchas Sangareshwar and Chandrakant. The panchas did not support the prosecution while the other two witnesses Azad and Sanglikar deposed to the prosecution story and further explained as to how bets are accepted on this matka betting. They explained the entire procedure and the manner in which this game of betting is played. In addition to the above witnesses, the prosecution examined Satyanarayan Murli (P.W. 4), the accountant in the office of the Divisional Engineer Telegraphs at Sholapur in order to establish that the subscriber of the two telephone connections was accused No. 1. Narsing Bapurao Mahamuni (P.W. 6), Assistant Editor of a daily called Samachar published from Sholapur was also examined in order to show that the open and close figures of matka betting declared from Bombay were printed and published in his paper on the following morning. Some issues of this paper were also placed on record. Narsing Bapurao Mahamuni (P.W. 6), Assistant Editor of a daily called Samachar published from Sholapur was also examined in order to show that the open and close figures of matka betting declared from Bombay were printed and published in his paper on the following morning. Some issues of this paper were also placed on record. The Judicial Magistrate found that the prosecution was not entitled to the benefit of the presumption arising under section 7 of the Gambling Act inasmuch as the search of the house was not taken pursuant to a warrant obtained under section 6. He also did not accept the prosecution evidence and, therefore, held that the prosecution failed to establish that accused No. 1 kept a common gaming house and that accused Nos. 2 to 4 were present in the said house for the purpose of gaming. In view of these findings the trial Court found the accused not guilty and, therefore, acquitted them. On this appeal, Mr. Deo, the Public Prosecutor, challenged the view taken by the learned Magistrate that the prosecution was not entitled to the benefit of the presumption arising under section 7 of the Gambling Act. According to him, the presumption must be raised under that section and since the accused have not rebutted that presumption, it must follow that accused No. 1 maintained the gaming house and that accused Nos. 2 to 4 were present in that house for the purpose of gaming. Section 7 of the Act provides that when any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of anyone found therein, and in the case of any other thing so seized if the Court is satisfied that the Police Officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming-house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority of either of them. It is, therefore, obvious that in order to entitle the prosecution to the benefit of the presumption arising under this section it must be shown that the house entered into on the strength of a warrant obtained under section 6. Section 6(1)(i) of the Gambling Act says that it shall be lawful for a Police Officer, in any area for which a Commissioner of Police has been appointed, not below the rank of a Sub-Inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the Commissioner of Police to enter any house, room or place which he has reason to suspect is used as a common gaming-house to take search thereof. Similarly Clause (ii) of section 6(1) provides that elsewhere it shall be lawful for a Police Officer not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf to exercise these powers. Now, in the present case admittedly no warrant was obtained before the raid was effected. It is, however, contended by Mr. Deo that since the raid was conducted under the supervision and direction of Additional Superintendent of Police Mr. Azad, no such warrant was necessary. This argument is not tenable. It is no doubt true that under section 8(1) of the Bombay Police Act, 1951, the State Government can appoint Additional Superintendent of Police for any District or for a part of a District or for one a or more District. Sub-section (2) of that section provides that the State Government may, by a general or special order, empower an Additional Superintendent to exercise and perform in the district for which he is appointed or in any part thereof, all or any of the powers, functions or duties to be exercised or performed by a Superintendent under this Act or under any law for the time being in force. It is, therefore, no doubt clear that the State Government has power under sub-section (2) of section 8 of the Bombay Police Act to empower Additional Superintendent of Police to exercise or perform any of the powers or functions or duties to be exercised or performed by a Superintendent under the Bombay Police Act or under any law for the time being in force. But for that purpose a general or special order must be issued by the State Government, to so empower the Additional Superintendent. Mr. Deo has invited my attention to an order issued by the State Government in exercise of the powers under section 8(2) of the Bombay Police Act, 1951, which is published at page 1951 of the Maharashtra Government Gazette, Part IV-B, dated December 30, 1971. That order has been issued by the Government in Home Department on November, 24, 1971 and it beares No. APO2870/64664-V-A and it says : "In exercise of the powers conferred by sub-section (2) of section 8 of the Bombay Police Act, 1951 (Bom. XXXII of 1951) the Government of Maharashtra hereby empowers the Additional Superintendent of Police, Sholapur, to exercise and perform in the Sholapur District, all the powers, functions and duties to be exercised and performed by a District Superintendent of Police under said Act." The above order does not say that the Additional Superintendent of Police, Sholapur, was also empowered to exercise and perform all the powers, functions and duties to be exercised and performed by a Distinct Superintendent of Police under any other law for the time being in force. It, therefore, follows that by virtue of this order, the Additional Superintendent of Police, Sholapur, was only empowered to exercise the powers, functions and to perform the duties of a Superintendent of Police under the Bombay Police Act, 1951 and not under any other law for the time being in force. That being so, it is obvious that the Additional Superintendent of Police could not have exercised the powers of a Superintendent of Police under the Bombay Prevention of Gambling Act. He had, therefore, no power to issue any warrant under section 6(1)(ii) of the Gambling Act and so he himself could not have carried out the search without any such warrant from the Superintendent of Police. He had, therefore, no power to issue any warrant under section 6(1)(ii) of the Gambling Act and so he himself could not have carried out the search without any such warrant from the Superintendent of Police. It would have been a different matter had he been empowered to exercise the powers or functions of a Superintendent of Police under the Gambling Act by the aforesaid order. In that case it would have been possible to hold that since he himself was virtually a Superintendent of Police who was authorised to issue a warrant, it was not necessary to obtain any warrant as he himself was present at the time of raid. It is true that where the prosecution is not entitled to the benefit of the presumption under section 7, the prosecution can by other evidence establish that a particular house or place was being used as a common gaming house by any particular person and that any particular persons were found in such gaming house at the time of raid. If that is established, and if it further established that any instruments of gaming were found in such a place, then it can be said that the prosecution has succeeded in establishing the offence against the accused. But in the present case the evidence falls far short of establishing those facts even. No doubt, the two Police Officers Azad and Sanglikar have explained how the game, matka betting is played. Their evidence does establish that the organizer in Bombay every day round about 8 p.m. takes out three different cords from three different packs of playing cards with the help of three different persons. The picture cards such as King, Queen and Jack are removed from such packs and the cards are picked out from the remaining cards which number 40 in each pack and the denomination of each card so picked out is added and a final figure is arrived at and the digit on the extreme right-hand side is declared to be the open figure. For example, if three cards picked out are 4 of club, 6 of heart and 10 of diamonds, the total figure would be 20 and, therefore, the open figure would be 0 which is the extreme right hand digit in the final figure 20. For example, if three cards picked out are 4 of club, 6 of heart and 10 of diamonds, the total figure would be 20 and, therefore, the open figure would be 0 which is the extreme right hand digit in the final figure 20. The same process is again gone through rounds about midnight no every day and the right-hand digit of the final figure is declared to be the close figure. Bets are accepted from different persons at different places before the actual declaration of open and close figures and these figures are communicated to the persons who work as agents in different places in mofussial by the organizer in Bombay on telephone and these agents also inform their sub-agents accordingly. A person who bets on any particular open or close figure and if ultimately that figure is found to be correct, he is paid seven to nine times the amount that was offered by him as a bet and if both the figures are correct, then he is paid 49 times to 81 times the amount that was offered by him as a bet. That is how matka betting is placed as is deposed to by these two witnesses. Now, the evidence of Narsing Mahamuni, the sub-editor of daily Samachar shows that the denominations of the cards picked out both at the time of arriving at the open and close figure are published in his paper as well as the open and close figures. The prosecution has produced only three issues of this paper at Exhs. 35, 36 and 37. Exh. 35 is of February 9, 1973. Exh. 36 is of July 6, 1973 and Exh. 37 is of July 10, 1973. The raid in this case was carried out on the evening of July 10, 1973. So in the issue of July 10, 1973 the figures of open and close, which were declared on the 9th, have been published at page 4 leftside bottom. They are as follows : Bom, 570(2) Matka 239(4)" This shows that the figure 2 in the bracket was open figure while the figure 4 in the bracket on the right-hand side was a close figure. The three cards were of the denomination of 5 7 and 10 and the total of these figures comes to 22 and therefore, extreme right-hand digit 2 was declared to be the open figure. The three cards were of the denomination of 5 7 and 10 and the total of these figures comes to 22 and therefore, extreme right-hand digit 2 was declared to be the open figure. Similarly the figure 239 on the right-hand side shows the denominations of three cards that were picked out for declaring close figure and when added together the total figures is 14 and, therefore, the right-hand digit 4 from this figure is declared to be the close figure. The two figures close and open make the total 24 and we find, as has been deposed to by the Police Officers, the figure 24 has been written in the account book at Exh. 25 on the page on which the accounts of 9-7-1973 have been written. That figure has been written in the left hand upper corner. Similarly, if we compare the remaining two issues and the entries in these books on the relevant dates, it is clear that these entries pertain to matka betting. Not only this, but in the account book at Exh. 24 in fact, these very figures that are published in the Samachar of July 10, 1973, have been written in the upper corner of the left-hand page. The figures 570 have been written and below that under a line has been written 239. It also shows total collections on open figure and on close figure. These words open and close have been plainly written and the total collections under open on that date have been shown as 489-8-0 and 540-8-0, total 1030 and under the column close 5430-8-0- has been shown and against that is shown total 1030. The Marathi words for total used is Vat i.e. aggregate amount. Similar figures are also to be found on the previous pages which are devoted to the accounts of each date separately. This evidence, therefore, leaves no doubt that these account books are record of matka betting. However, in my opinion, this evidence is not enough to hold the charge proved against each of the accused, because mere finding of such record, which is no doubt an instrument of gaming, would not lead to the conclusion that it belonged to accused No. 1 and that he further used his house as a common gaming house. However, in my opinion, this evidence is not enough to hold the charge proved against each of the accused, because mere finding of such record, which is no doubt an instrument of gaming, would not lead to the conclusion that it belonged to accused No. 1 and that he further used his house as a common gaming house. What is punishable under section 4 of the Gambling Act is opening, keeping or using any house, room or place for the purpose of a common gaming house or being the owner or occupier of any such house etc. knowingly or wilfully permitting the same to be opened, occupied, kept or used by any other person for the purpose aforesaid or having the care or management of, or in any manner assisting in conducting the business of any such house etc. occupied, kept or used for the purpose aforesaid. Under that section advancing or furnishing money for the purposes of gaming is also punishable. However, having regard to the defence of the accused and the circumstances in which these account books and chits were found, it is difficult to hold accused No. 1 jointly under this section. Admittedly these books of account and chits were not found in possession of accused No. 1. Accused No. 1 was found only in possession of certain cash which he produced from the cupboard, but no evidence was led to show that cash had any connection with the matka betting. The account books were lying, according to the evidence led by the prosecution, near about the place where accused No. 2 was sitting and nothing was found on the person of any of the accused, except a small cash that was found with accused No. 4. Now, merely because these instruments of gaming were found in the house of accused No. 1, we cannot presume that they belonged to accused No. 1. The prosecution ought to have led some evidence to establish connection between accused No. 1 or for the matter of that between accused No. 2 or No. 3 or No. 4 and these books. The prosecution could have led evidence to show that entries were in the hand of any of these accused or that they belonged to any of these accused. The prosecution could have led evidence to show that entries were in the hand of any of these accused or that they belonged to any of these accused. In this connection, it must be noted here that the account-books do not bear any name and, therefore, they do not provide any clue as to whom they belonged. In this state of evidence it is not possible to affirmatively hold that these account-books, which are positively instruments of gaming belonged to any of the accused. It is possible that they may belong to one of these accused or to none. To whom they belonged must be positively proved by the prosecution. In the absence of any such evidence and on the evidence, as it stands, it is not possible to convict any of the accused. The appeal, therefore, fails and is dismissed, confirming the order of acquittal. Bail-bonds stand cancelled. -----