JUDGMENT - R.A. JAHAGIRDAR, J.:---This revision application has been preferred by the three petitioners who were originally accused Nos. 1 to 3 in Summary Case No. 697 of 1974 tried by the learned Judicial Magistrate, First Class, of Igatpuri. They along with four others were prosecuted for the offences punishable under sections 4 and 9 of the Bombay Prevention of Gambling Act, 1887. According to the prosecution, accused No. 1 is the occupant of a house bearing No. 203 in Ward No. 2 of Igatpuri town. In the front portion of this house the business of selling medicines is carried on, while in the rear portion, the business of gaming is conducted. One Limaye, a duly authorised officer under section 6 of the Act, normally stationed at Nasik, raided this house on 23rd May, 1973 along with two panchas one from Nasik and one from Igatpuri. After the raid, he found accused No. 1 in possession of certain amount of cash and a publication bearing, according to the P.S.I., Matka figures. The publication itself was named "Bholaram Matka Jokar", accused Nos. 2 and 3, i.e. petitioners Nos. 2 and 3 were found sitting with three slip books having perforation. Other accused were present, according to the prosecution, for the purpose of gaming. 2. In support of its case, the prosecution examined P.S.I. Limaye, incharge of the raid, and also the pancha who had been brought from Nasik. P.S.I. Limaye specifically mentioned that he had received information that Worli Matka game was being carried on in this house and after verifying the same, he raided the house. He has along with the pancha proved the seizures of slip books, ball pens and money. The learned trial Magistrate accepted the prosecution case and convicted accused No. 1 under section 4 of the Act for keeping the house for the purpose of a common gaming house. He sentenced accused No. 1 to rigorous imprisonment for three months and to pay a fine of Rs. 500/-. In default of the payment of fine, rigorous imprisonment for one month was directed. All the other accused were convicted for the offence punishable under section 3 of the Act and were awarded various sentences. He sentenced accused No. 1 to rigorous imprisonment for three months and to pay a fine of Rs. 500/-. In default of the payment of fine, rigorous imprisonment for one month was directed. All the other accused were convicted for the offence punishable under section 3 of the Act and were awarded various sentences. This order of conviction and sentence was recorded by the learned trial Magistrate on 20th July, 1977 has been confirmed by the learned Additional Sessions Judge of Nasik by his judgment and order dated 14th February, 1978 in Criminal Appeal No. 124 of 1977 preferred by accused Nos. 1 to 3. It is this order that is the subject matter of challenge in the present petition. 3. Mr. R.M. Agrawal, the learned Advocate appearing for the petitioners, has challenged the conviction which has been recorded on the basis of presumption arising under section 7 of the Act. According to Mr. Agarwal, on the facts and circumstances of this case, a presumption under section 7 could not have been raised by the Court because the entry made by P.S.I. Limaye into the house of accused No. 1 was not strictly under section 6 of the Act. In order to enable the Court to raise a presumption under section 7 of the Act, P.S.I. Limaye has said the following in his testimony recorded on oath : "In the third week of May 1973, I received information that accused No. 1 was conducting Worli Matka Game in his house situated on Agra Road, Igatpuri, verified that information and confirmed it". Mr. Agarwal says that this is not enough for the purpose of proving that the officer concerned had entered the house which he had reason to suspect was used as a common gaming house. The two Courts below raised the presumption on the ground that there was no challenge to the statement referred to above made by P.S.I. Limaye. Mr. Agarwal says that it was not necessary to challenge the said statement because that statement itself wholly inadequate to prove to the satisfaction of the Court that the officer concerned had reason to suspect that the house in question, was being used as a common gaming house. In support of his contention, he relied upon a Division Bench judgment of this Court in (State of Maharashtra v. Talaksi Malsi Sawala)1, 75 Bom.L.R. 373(D.B.). 4. In support of his contention, he relied upon a Division Bench judgment of this Court in (State of Maharashtra v. Talaksi Malsi Sawala)1, 75 Bom.L.R. 373(D.B.). 4. Section 6 so far as it is material to our case says that it shall be lawful for a Police Officer who is authorised as mentioned in that section to enter any house which he has reason to suspect is used as a common gaming house. It is, therefore, clear that the entry must be after the officer concerned has reason to suspect that a particular house is used as a common gaming house. If an entry is made by such a Police Officer who has reason to suspect as aforesaid, then the presumption under section 7 arises. I am relived of the necessity of launching upon a detailed analysis of sections 6 and 7 because the judgment in Talaksi Malsis case has after a complete, through and exhaustive analysis of not only the relevant provisions of law, but also of all the relevant judgments has laid down the legal position in clear unsuitable terms. 5. In that case the trial Court had found that the Police Officer concerned after receiving certain information had sent a bogus punter to participate in the gambling that was alleged to have been taking place in the said house. He thus verified the information received by him by sending a bogus punter. The trial Court accepted this evidence and found on the facts the information disclosed by the P.S.I. and the verification done by him, the P.S.I. had reason to suspect that the premises in that case were being used as a common gaming house. There was thus clear cut evidence in that case to show what information the P.S.I. had received and how after verifying the same he had reason to suspect as mentioned by him. It is unnecessary for me to refer in any details to the judgment in Talaksi Malsis case. It is enough for my purposes to mention that, in my opinion, the following propositions emerge from discussion of the law mentioned in that judgment : (1) The presumption under section 7 of the Act arises only if the entry is made under section 6 of the Act. It is enough for my purposes to mention that, in my opinion, the following propositions emerge from discussion of the law mentioned in that judgment : (1) The presumption under section 7 of the Act arises only if the entry is made under section 6 of the Act. Entry under section 6 can be said to have been made if an information which is verified, the P.S.I. concerned has reason to suspect that the premises in question are being used for gaming purposes. The words "reason to suspect" are of material importance and the mere assertion in that regard by the P.S.I. will not be sufficient. How he came to acquire reason to suspect must be demonstrated by him (page 395). (2) Mere entry under section 6 is not enough. That entry must be coupled with the seizure of instruments of gaming as mentioned in the first part of section 7. In other words, the prosecution must demonstrate that an instrument of gaming has been seized on an entry made under section 6. Alternatively, it may also be demonstrated by the prosecution that entry under section 6 was coupled with the seizure of certain things which to the satisfaction of the Court the officer had reason to suspect were instruments of gaming. It is thus clear that in order to enable the Court to raise a presumption under section 7 the prosecution must prove, in the first place, that the entry has been effected under section 6 as mentioned in (1) above, and further that instrument of gaming has been seized or that certain things have been seized which the Court is satisfied that the Police Officer concerned had reason to suspect were instruments of gaming. The latter things need not be proved to be the instruments of gaming. (3) The effect of presumption is as follows : (a) That the place is being used as a common gaming house. (b) Everyone present in the house is present there for the purpose of gaming. (c) On the above two consequences of the presumption, conviction under section 5 of the Act will follow, but for the purpose of convicting under section 4, additional evidence may be sought by the Court. (d) It is not necessary to prove that actually gaming was going on or gaming for profit was going on. (c) On the above two consequences of the presumption, conviction under section 5 of the Act will follow, but for the purpose of convicting under section 4, additional evidence may be sought by the Court. (d) It is not necessary to prove that actually gaming was going on or gaming for profit was going on. It is also not necessary to prove that the person who could be convicted under section 4 was making any extra charges for the use of the room. 6. Though on the facts of Talaksi Malsis case, it was necessary and it was proved that the Police Officer concerned had on verification which he confirmed reason to suspect, in certain cases it may not be necessary for an entry to be an entry under section 6 to prove to the satisfaction of the Court by the Police Officer himself that he had reason to suspect as mentioned under section 6(i)(a) of the Act. Such is the case where a special warrant is given. This is a case where an officer has been authorised by a special warrant with respect to a particular house. When the warrant discloses enquiry by and satisfaction of the officer issuing warrant, the officer conducting the search must be held to have reason to suspect about the use of the place as a common gaming house. This proposition of law has been laid down in another Division Bench ruling of this Court in (Jawaharlal Jamnadas Rathi v. State of Maharashtra)2, 1976 Mh.L.J. 603. It is also so held in (Emperor v. Vallibhai Ibrahim)3, 34 Bom.L.R. 1447. 7. Turning to the facts of the present case, it is seen that the P.S.I. Limaye has totally failed to disclose from where and what information he received and how he actually verified the same in order to show that he had reason to suspect that the premises raided were being used as a common gaming house. Mr. Parkar, the learned Public Prosecutor, however, contended that in the absence of a challenge to the statement of the P.S.I. one must proceed on the basis that the entry was made under section 6. I am unable to accept the submission of the learned Public Prosecutor, because there was nothing to be challenged in the statement of the P.S.I. Limaye. Parkar, the learned Public Prosecutor, however, contended that in the absence of a challenge to the statement of the P.S.I. one must proceed on the basis that the entry was made under section 6. I am unable to accept the submission of the learned Public Prosecutor, because there was nothing to be challenged in the statement of the P.S.I. Limaye. In order to enable the Court to raise a presumption under section 7, it must be shown that the entry was made under section 6 and for that purpose, it must be shown how the officer concerned came to have reason to suspect that the premises in question were being used for gaming purposes. There is in this case a total absence of the evidence to show that the entry was made under section 6 of the Act. It was not contended in the Court below, nor has it been contended before me that there is any direct evidence to show that actually gaming was going on in the premises at the time of the raid. Legally, therefore, the conviction of the three accused is unsustainable and will have to be set aside. 8. In the result, this petition is allowed. The conviction and sentence recorded by the learned Judicial Magistrate, First Class, of Igatpuri, in Summary Case No. 697 of 1974 and confirmed by the learned Additional Sessions Judge of Nasik in Criminal Appeal No. 124 of 1977 are set aside. Fine, if paid, shall be refunded. Bail bonds of the accused stand cancelled. -----