Order.- The petitioner who is convicted of an offence punishable under section 12 of the Bombay Prevention of Gambling Act asks me to quash his conviction in this Revision Petition. The charge against the petitioner was that he was found gambling under a banian tree on 12th August, 1960. The evidence consisted of that of P.Ws. 1 and 3 Police Constables and of P.W. 8, a panch witness. The effect of the evidence given by these witnesses was that when these three witnesses apprehended the accused under the banian tree which Was situate at some distance from the Police Station there was one person there mentioning certain figures which were being entered by the accused on a cigarette packet card. When the accused was searched there were in his pocket a sum of Rs. 2-3-0, cigarette cards and a pencil. The prosecution case was that a panchnama was prepared after the apprehension of the accused and his search. The Magistrate came to the conclusion that the accused was gambling on American Cotton rates, and that that was the inference to be drawn from the fact that entries were being made by the accused on the cigarette cards and from the discovery of a sum of Rs. 2-3-0 in his pocket. Mr. Patil appearing on behalf of the petitioner has advanced two arguments. The first of them is that the evidence relating to the preparation of the panchnama was so discrepant that it should have been rejected by the Magistrate as untrustworthy. He has pointed out to me that P.W. 2 who is the only independent witness examined in this case has made it very clear in his evidence that the panchnama was not prepared under the banian tree where the accused was searched but only at the Police Station after the Police Constables and P.W. 2 proceeded to the Police Station from the banian tree nearly an hour after they had left it. The evidence of P.W. 2 was also to the effect that the other panch witness also signed the panchnama only at the Police Station. Mr. Patil urges and in my opinion very rightly that the preparation of the panchanama at the Police Station and not at the spot where the seizure was made or the accused was apprehended is an extremely serious infirmity in the prosecution case. Mr. Patil urges and in my opinion very rightly that the preparation of the panchanama at the Police Station and not at the spot where the seizure was made or the accused was apprehended is an extremely serious infirmity in the prosecution case. Another reason why in my opinion the conviction of the petitioner cannot be sustained is that the evidence of the prosecution witnesses does not establish that the accused committed an act of gaming. All that these witnesses have stated is that when these witnesses went to the banian tree they found someone giving some figures to the accused which were being noted down by the accused on some cigarette packet cards. The only other material produced by the prosecution was that when the accused was searched there was in his pocket a small sum of Rs. 2-3-0 together with some cigarette cards and a pencil. Now it is clear from the provisions of section 12 of the Bombay Prevention of Gambling Act that although it is permissible for a Police Officer to apprehend and search a person who is either found gaming or reasonably suspected to be gaming, no conviction is possible under the provisions of that section unless the person apprehended or searched was in fact gaming in the places referred to in that section. What is punishable under the provisions of that section is the act of gaming on the part of the person apprehended or searched. It is impossible for anyone to suggest that the fact that a Police Officer has been conferred power under that section to apprehend and search a person reasonably suspected to be gaming can justify the argument that it is not necessary for a person to be convicted under that section, to be found gaming, and that it is enough if he was reasonably suspected to be gaming. Section 3 of the Act which defines gaming makes it clear that a person gambling or wagering or betting commits an act of gaming and it is only on proof that the accused was actually gaming that a prosecution under section 12 can succeed it being quite insufficient that he was reasonably suspected to be gaming. In my opinion there was no legal evidence in the case justifying the view hat the accused in this case was gaming when he was apprehended or searched. In my opinion there was no legal evidence in the case justifying the view hat the accused in this case was gaming when he was apprehended or searched. The view that I take is fully supported by a Full Bench decision of the High Court of Bombay in Emperor v. Govabhai Govindbhai1. That being so, this Revision Petition must succeed, and the conviction of the petitioner and the sentence passed on him are act set aside, and he is acquitted of the offence with which he was charged. The fine, if paid, shall be refunded. S.V.S. ------ Petition allowed.