JUDGMENT 1. - This appeal has been filed by the State under section 378 (1) Cr. P. C. against the judgment and order of the Munsif-cum-Judicial Magistrate, Pali, dated 31st May, 1975 in Criminal Case No. 23/74, whereby the Munsif Magistrate has acquitted respondents Kundanmal and Moti of the charge under section 3 and 4 of the Rajasthan Public Gambling Ordinance, 1949 (hereinafter referred to as the ordinance). 2. The case of the prosecution is that on Feb. 15, 1970, Shri Narpat Singh S. H. O. Pali, received an information that the house which respondent Kundanmal was occupying as tenant was being used for the purpose of gambling. Thereafter, the S. H. O. Shri Narpat Singh obtained a search warrant (Ex. P. 6) under section 5 of the ordinance for making a search in the house in the occupation of respondent Kundanmal from the Superintendent of Police, Pali, on 15th February, 1970, and the S. H. O. alongwith Saligram A. S. I., Bhanwaru Khan, Narairlal Ratansingh Driver and Noor Mohd. alongwith two motbirs viz. Badri Singh and Parmanand went to the house of Kundanmal on 15th February, 1970 at about 3.20 p. m. and found that Kundanmal, Moti and two other persons viz. Kishan Chand and Kanhaiyalal were sitting in a room and were gambling with dice and money. After conducting a search of the said room, the S. H. O. took into possession vide memo (Ex. P. 1), two pieces of dice, two sets of playing cards, piece of white cloth and currency notes etc. and also arrested all the four person on the spot. After investigation a challan under sections 3 and 4 of the ordinance was filed against the respondents and Kishanchand and Kanhaiyalal 15th February, 1970. Kishanchand pleaded guilty and he was convicted of offence under section 4 of the ordinance and a fine of Rs. 60/- was imposed Kanhaiyalal died during the course of the trial and the case proceeded against the respondents. 3. The prosecution in support of its case examined Badri Singh (P. W. 1 Salig Ram (P. W. 2) and Narpat Singh (P. W. 3). The accused persons in their defence examined Laxmansingh (D. W. 1) . 4. 60/- was imposed Kanhaiyalal died during the course of the trial and the case proceeded against the respondents. 3. The prosecution in support of its case examined Badri Singh (P. W. 1 Salig Ram (P. W. 2) and Narpat Singh (P. W. 3). The accused persons in their defence examined Laxmansingh (D. W. 1) . 4. The Munsif-cum-Judicial Magistrate, Pali, by his order dated 31st May, 1975 acquitted the accused persons on the view that the prosecution had failed to establish that the house of accused Kundanmal was used as a common gambling house and therefore, none of the accused persons could be held guilty of the offences under sections 3 and 4 of the Act. 5. The learned Public Prosecutor, in support of the appeal, has submitted that learned Magistrate, in holding that the prosecution has failed to establish that the house of the accused Kundanmal were being used as a common gambling house at the relevant time, has failed to take into consideration the presumption which arises under section 6 of the ordinance from the fact that instruments of gaming such as dice, sets of playing cards, money and cloth were found in the said house, and were seized as per seizure memo Ex. P. 1. The submission of the learned Public Prosecutor is that the seizure of the aforesaid articles was sufficient evidence to establish that the house of the accused Kundanmal was being used as a common gambling house and that the persons found therein were present there for the purpose of gaming even though no play was actually seen by the witnesses and that it was for the accused persons to adduce evidence to prove to the contrary. The learned Public Prosecutor submits that the accused persons had failed to discharge the said burden and, therefore the learned Magistrate ought to have convicted the accused persons of the offence under sections 3 and 4 of the ordinance. Section 6 of the Ordinance provides as under - Section-6 "Finding cards, etc. in suspected house, to be evidence that much houses are common gaming houses. Section 6 of the Ordinance provides as under - Section-6 "Finding cards, etc. in suspected house, to be evidence that much houses are common gaming houses. When any cards, dice, gaming-tables, clothes, boards or other instruments of gaming are found in any house room, tent, enclosure, vehicle, space, vessel or place, entered or searched under the provisions of the last proceeding section or about the person of any of those who are found therein, it shall be evidence, until the contrary is made to appear, that such house, room, tent, enclosure, vehicle, space, vessel or place is used as a common gaming house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Magistrate or police officer, or any of his assistants." 6. A perusal of the aforesaid provisions shows that a presumption about a particular house being used as a common gaming house and that the persons found therein were there present for the purpose of gaming arises from the fact of recovery of the instruments of gaming from the said house and the need for the prosecution to adduce evidence to show that the persons who were present in the house were actually playing or gaming is dispensed with. The said provision on the other hand casts the burden on the accused persons to adduce evidence in rebuttal to establish that the house from which the instruments of gaming were recovered was not being used as a common gaming house. 7. In the present case from the seizure memo (Ex. P. 1), it is established that during the course of search of the house of accused Kundanmal, certain articles viz. dice two sets of cards, currency notes and a piece of cloth were recovered from the said house. The said seizure memo has been proved by Badri Singh (P. W. 1) and Salig Ram (P. W. 2) who are the attesting witnesses to the same as well as by the S. H. O. Narpat Singh (P. W. 3). The prosecution under section 6 of the ordinance is, therefore, clearly attracted in the present case and it was for the accused persons to adduce evidence to establish that the said house was not being used as a common gaming house. The prosecution under section 6 of the ordinance is, therefore, clearly attracted in the present case and it was for the accused persons to adduce evidence to establish that the said house was not being used as a common gaming house. In the absence of such evidence having been adduced by the accused persons the learned Magistrate ought to have held that the house of accused was used as a common gaming house and the accused persons who were found therein were present for the purpose of gaming. The learned Magistrate thus erred in not applying the said presumption and in acquitting the accused persons on the view that it had not been established that the house of accused Kundanmal was not being used as a common gaming house at that time. 8. The question than next arises is as to the offence which has been committed by the accused persons. From the evidence of Badri Singh (P. W. 1), Salig Ram (P. W. 2) and Narpatsingh (P. W. 3) it is established that both Kundanmal and Moti were found present in the house of Kundanmal at the time of search. Both of them are, therefore guilty of the offence under section 4 of the ordinance. In respect of accused Kundanmal it is further established from the evidence of Badri Singh (P. W. 1) and Narpatsingh (P. W. 8) that he was the occupier of the house from which the instruments of gaming were recovered vide seizure memo (Ex. P. I). Kundanmal is, therefore, also guilty of the offence under section 3 of the ordinance. 9. The appeal is allowed and the judgment of the learned Munsif-cum-Judicial Magistrate, Pali dated May 31, 1975 in Cr. Case No. 23/74 acquitting the accused persons is set aside. Both the accused persons are convicted for the offence, under section 4 of the ordinance and accused Kundanmal is further convicted of the offence under section 3 of the ordinance. Taking into the consideration the fact that the incident relates to the year 1970, I do not impose a sentence of imprisonment on the accused persons. A fine of Rs. 50/- is imposed on accused Moti and in default of payment of fine, he will have to undergo simple imprisonment for the period of 10 days. A fine of Rs. Taking into the consideration the fact that the incident relates to the year 1970, I do not impose a sentence of imprisonment on the accused persons. A fine of Rs. 50/- is imposed on accused Moti and in default of payment of fine, he will have to undergo simple imprisonment for the period of 10 days. A fine of Rs. 100/- is imposed on accused Kundanmal in respect of offence under section 3 of the ordinance and in default of payment of fine, he will have to undergo simple imprisonment for 15 days. No separate fine is imposed on accused Kundanmal in respect of offence under section 4 of the ordinance. The direction given by the Magistrate regarding confiscation of the money recovered and destruction of the dice and the playing cards is maintained.Appeal allowed. *******