Order.- The petitioner in Cr.R.P. No. 120 of 1966 was the second accused in the Court of the First Class Magistrate, Yellburga in Criminal Case No. 14/3 of 1965. The petitioners in Cr.R.P. No. 121 of 1966 were accused 20 and 54 in the said case. For the sake of convenience, the petitioners will be referred to by their designations in the trial Court. The learned Magistrate has convicted accused 2 under section 4(1) of the Hyderabad Gambling Act and sentenced him to a fine of Rs. 25 and in default of payment of fine, to one month’s simple imprisonment. Accused 20 and 54 have been convicted under section 5 of the said Act and each fined Rs. 5, in default of payment of fine, to two weeks’ simple imprisonment. The petitioners have filed these revision petitions questioning the correctness of the said convictions, Sri Swamy, learned Counsel appearing on behalf of the petitioners accused, has contended that there is absolutely no evidence that accused 2, the owner of the premises, opened, kept, or used the premises or knowingly or wilfully permitted the said premises to be used as a common gaming house. With regard to accused 20 and 54, he contends that mere gaming is not an offence. Unless the prosecution proves that these accused were found gaming in a common gaming house, they cannot be convicted under section 5 of the Act. Exhibit P-2, the warrant issued in the case, was legally defective and hence, no presumption under section 7 of the Act could be drawn against the accused. There is also no evidence that the owner or occupier of the premises was making any profit and as such, the prosecution has not proved that the house in question was a common gaming house. Sri Swamy contends that under the Act, no presumption arises against the owner of the house. Accused 2 was admittedly not found present in the house at the time when the police raid took place. Taking first the case of accused 2 there is no dispute that he is the owner of of the premises. The prosecution has let in evidence (evidence of P.W. 3) to show that accused 2 had rented out the house to accused 1. The prosecution case is that accused 1, the occupier of the premises, was using the premises as a common gaming house. The prosecution has let in evidence (evidence of P.W. 3) to show that accused 2 had rented out the house to accused 1. The prosecution case is that accused 1, the occupier of the premises, was using the premises as a common gaming house. It is not the prosecution case that accused 2 opened or kept a common gaming house. The charge against him was that being the owner of the said house, he knowingly and wilfully permitted the same to be used as a common gaming house. There is absolutely no evidence to show that accused 2 knowingly or wilfully permitted the premises to be used as a common gaming house. As already stated, he was not present in the premises at the time of the raid. Sri Dayananda, learned Counsel appearing on behalf of the State, has not supported the conviction of accused 2. Under the Act, no presumption can be drawn against the owner under section 7. There is also no evidence to show that either the owner or the occupier of the premises was making profit or gain out of gambling. See Thimmiah v. State of Mysore1. I am therefore of opinion that the conviction of accused 2 under section 4(1) of the Act is not correct and I set aside the said conviction and sentence imposed on accused 2 for the said offence. Taking the case of accused 20 and 54 who were charged with gaming in a common gaming house, I will examine the evidence against them. The contention of Sri Swamy is that no presumption under section 7 of the Act can be raised against these accused as the warrant, Exhibit P-2, is legally defective. The warrant has been issued by the Superintendent of Police, Raichur. Under section 6 of the Act, the District Superintendent of Police can issue a warrant on credible information and after such enquiries as he may deem necessary, and after satisfying himself that he has reason to believe that any house or premises is used as a common gaming house. The contention of Sri Swamy is that there was no credible information before the Superintendent of Police that the premises in question was used as a common gaming house. The Superintendent of Police also did not make any enquiry under the Act to satisfy himself whether the place was used as a common gaming house. The contention of Sri Swamy is that there was no credible information before the Superintendent of Police that the premises in question was used as a common gaming house. The Superintendent of Police also did not make any enquiry under the Act to satisfy himself whether the place was used as a common gaming house. P.W. 2, the Circle Inspector of Police, who got the warrant from the Superintendent of Police, has stated in his evidence that in December, 1964, the Superintendent of Police, Raichur, ordered him to verify the information that house No. 2-5-37 at Kukanoor was rented out on hire to one Papanna by the owner Hanmanthappa for running a gambling den and that gambling was going on there. Accordingly, the Circle Inspector deputed an informant to Kukanoor and learnt that information was correct. On 21st December, 1964, he reported to the Superintendent of Police and obtained a search warrant. Sri Swamy has stressed the fact that this evidence shows that the information collected was with regard to a gambling den and not with regard to the common gaming house as required under the Act. I am of opinion that there is some force in the contention of Sri Swamy. Neither the warrant nor the evidence discloses that there was any credible information before the Superintendent of Police that the place in question was used as a common gaming house. The Superintendent of Police has also not made any enquiries as required by section 6 of the Act. A Division Bench of this Court in State of Mysore v. Hanumantha Manju Bhandari1, held that the provisions of the Gambling Act, relating to the presumption that can be raised are a departure from the ordinary rule of law according to which every accused in a Criminal Court is entitled to a presumption of innocence in his favour. Because of the far-reaching consequences of the issue of the warrant under section 6, the Legislature has thought fit to impose stringent conditions which must be satisfied by any officer before such a warrant is issued. Regarding the enquiry before issuing a warrant, their Lordships have observed as follows: “Regarding the enquiry, the discretion is left with the officer to decide the nature of it. But that an enquiry, whatever be its nature, is compulsory under the statute appears to be clear on the wording of the statute. Regarding the enquiry before issuing a warrant, their Lordships have observed as follows: “Regarding the enquiry, the discretion is left with the officer to decide the nature of it. But that an enquiry, whatever be its nature, is compulsory under the statute appears to be clear on the wording of the statute. The use of the word ‘necessary’ cannot mean that it is left to the officer to decide if an enquiry is or is not necessary; in the context it could only mean that the nature of the enquiry which the officer should make, must subserve the necessity of reaching the satisfaction mentioned in the section.” So, it is clear that before issuing a warrant under the Act, it is necessary to hold an enquiry, though the nature and the kind of the enquiry are left to the discretion of the officer concerned. In Narsappa v. State of Hyderabad2, a Division Bench of that Court held, gambling per se is not an offence under the Hyderabad Gambling Act. It is only gambling in a common gaming house, as defined under the Act, that is made an offence under the section. Section 5 requires that the prosecution must establish by legal evidence that the accused were found playing or gaming in a common gaming house as defined in section 3 of the Act. The presumption under section 7 can arise only where the search warrant is issued in strict compliance with the provisions of section 6. Their Lordships have also held in that decision that the report of the Police that a person has allowed gambling in his house is insufficient for the issue of a search warrant because, in the words of section 6, it is not credible information that the house is used as a common gaming house. For the reasons mentioned above, I am of opinion that the warrant, Exhibit P-2, issued in this case is legally defective and no presumption can be raised under section 7 of the Act against accused 20 and 54. There is also no evidence in this case that either the owner or the occupier of the premises was deriving any profit or gain by running a gaming house. A locked tin box with a hole in it was found at the time of the raid, in the premises. There is also no evidence in this case that either the owner or the occupier of the premises was deriving any profit or gain by running a gaming house. A locked tin box with a hole in it was found at the time of the raid, in the premises. The learned Magistrate has deduced from this that this box was meant to drop in money and that the money was to go to the person who was owning the place or the gaming instruments. I am of opinion that by mere finding of a locked tin box with slits at the top, it cannot be said that the prosecution has proved, by satisfactory evidence, that the owner or the occupier of the premises was making profit out of gaming. The essential element of a common gaming house as defined in the Act is that the instruments of gaming kept in the buildings should have been kept or used for the profit of the person owning or occupying the building. It is only in cases where the owner or occupier of the house collects some money for the use of the instruments or the house or the room, that he can be said to be running a common gaming house. (See Thimmiah v. State of Mysore3). So, the prosecution has not proved that the premises in question was being used as a common gaming house and accused 20 and 54 were found gaming in a common gaming house. Hence their conviction under section 5 of the Act cannot be sustained. In the result, Criminal Revision Petition Nos. 120 and 121 of 1966 are allowed and the convictions and sentences passed on the petitioners are set aside and they are acquitted. The fine amounts, if paid, will be refunded to them. S.V.S. ----- Petitions allowed.