Order.- This Revision is preferred by accused 1 in C.C. No. 12628 of 1957, against his conviction and sentence by the learned Fifth Presidency Magistrate, Egmore. The Revision Petitioner along with sixteen others was put up for trial of offences under sections 45 and 46 of the Madras City Police Act. The Revision Petitioner was charged with conducting a common gaming house at No. 69, Thulasingaperumal Koil Street. Accused 1 to 13 were said to have participated in the card game of chance known as “mangatha”, and accused 14 to 17, of whom accused 17 is a respectable doctor of the locality by name Dr. G. Narasimhachariar, were said to have been found in the above premises watching the game of mangatha between 2 and 3 p.m. on 3rd November, 1957. It is stated that when the Police raided the place they found a cash of Rs. 257-4-0 and other gaming materials and they were seized. The case for the accused was as follows: Accused 1 stated that he was not running any common gaming house and that mangatha was not being played. Accused 17 stated that he had gone to No. 69, T. P. Koil Street, to see the chief tenant Doraisami Ayyangar who was suffering from filarial trouble, that after giving him an injection in the downstairs portion where he was living, he went upstairs to make some inquiries of accused 7, that he then saw some persons playing at a card game and they told him that there was a music performance at the Hindu High School by Ariyakudi Ramanuja Ayyangar and that they were whiling away their time. Some of the other accused stated that they were playing “rummy” which is a game of skill and that they were playing for stakes in order to introduce seriousness in that game. The rest stated that they were watching the game. It is stated that the moneys were recovered mostly from the pockets of the accused persons. The learned Magistrate found accused 1 guilty under section 45 of the Madras City Police Act and accused 1 to 13 under section 46 of the said Act. He sentenced accused 1 under section 45 of the Act to pay a fine of Rs. It is stated that the moneys were recovered mostly from the pockets of the accused persons. The learned Magistrate found accused 1 guilty under section 45 of the Madras City Police Act and accused 1 to 13 under section 46 of the said Act. He sentenced accused 1 under section 45 of the Act to pay a fine of Rs. 40 and in respect of the offence under section 46 of the Act, accused 1 to 13 were released after due admonition under section 3 of the Madras Probation of Offenders Act. He acquitted accused 14 to 17. He ordered the confiscation of the cash seized except Rs. 40 (one rupee notes) which had been initialled by the Sub-Inspector P.W. 1 and given by him to the decoy-witness P.W. 2. In this case we have to find out whether accused 1 was running a common gaming house; secondly, whether the other accused were either playing mangatha, a card game of chance, or watching the same; and thirdly, whether the order of confiscation is correct. Gaming is not an offence per se. It is an offence only when it is carried on in a public place or in a common gaming house as defined in the Public Gambling Act or its local variants. (For a comprehensive study of the Public Gambling Act see A.I.R. Manual, Civil and Criminal Volume 7, Act III of 1867, p. 6938, and following and of which very useful publication a new edition is long overdue.) Is gambling by itself a public nuisance although it may be punishable under the Police Act or other provision of law? Section 8 of the Madras Gaming Act penalises gambling in a common gaming house, (gaming and gambling have substantially the same meaning) while section 12 prescribes the punishment for gambling in a public place. The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of section 8 nor of section 12, is not an offence under the Act. The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of section 8 nor of section 12, is not an offence under the Act. Similarly, where no commission is charged or gaming is carried on for pleasure and not for gain or when it is carried on, on a religious festival, e.g., Diwali day and even where charges are made but not as profit or gain but for the payment of servants who look after the comforts of those who happen to visit the bouse or for remunerating those who minister to the comforts of the persons assembled or for presents or perquisites given to attendants, no offence is committed under the Act. It need not be pointed out that an innocent spectator cannot be run in for gaming. In fact the Bombay Prevention of Gambling Act specifically excludes abetment. To sum up, gambling by itself is not an offence and it becomes only an offence when the gaming takes place in a common gaming house or in a public place, because the policy of the law is not to prevent individual pastimes for whiling away the time but only when that pastime becomes a source of demoralization, as in the case of the former, or a public nuisance likely to provoke a breach of the peace as in the case of the latter. This principle is embodied not only in our Madras Act but also in the Bombay Prevention of Gambling Act IV of 1887; the U.P., C.P., Punjab, Burma, M.B. Public Gambling Acts (for an exhaustive study of these Acts, see III edn. (1956) of Sami & Aiyar’s ‘Law and Practice of Gambling in India’, Law Book Company, Sardar Patel Marg., P.B. 4, Allahabad). This is based upon the lessons learnt by us from our own history of gambling in the past and of which a short account of gambling in Hindu India will be instructive. The history of gambling in Hindu India is most instructive, furnishing materials as it does, as to how far the State can go in for regulating gambling. The Aryans delighted in gambling. In the remains of the Indus cities numerous dice have been found and the Aryans have left their own record of their gambling propensities in the beautiful gamester’s lament in the Rig Veda, X-34. The Aryans delighted in gambling. In the remains of the Indus cities numerous dice have been found and the Aryans have left their own record of their gambling propensities in the beautiful gamester’s lament in the Rig Veda, X-34. It is the gambler who speaks in his own person, and no habitue of Monte Carlo could lay bare more remorseful and helpless self-condemnation in the ruthless grip of the enthralling passion, or depict more graphically its disastrous effects on home and family. "1. The tumbling, exciting dice delight me as they roll on the board; they are to me like a draught of the someplant growing on Mount Mujavant. 2. My wife never quarrelled with me or irritated me. She was kind to me and to my friends. But I, for the sake of the hazardous dice, have spurned my devoted spouse. 3. My mother-in-law detests me; my wife rejects me; the gambler finds no comforter. Nor can I see what a gambler is good for, any more than a valuable horse worn out with age. 3. Others pay court to the wife of the man whose wealth is coveted by the impetuous dice. Father, mother, brothers cry out:‘who is the man? Take him away bound’. 4. Resolve as I may, ‘I will play no more,‘ for all my friends desert me, ‘the moment I hear the rattle of the brown ones (dice), I hasten to the tryst, as a woman to her lover.‘ 6. The gambler goes to the assembly (of gamblers) full of confidence: ‘to-day I win’. But the dice inflame his desire by making over his winning to his opponent. 7. They are like fish-hooks that pierce the flesh; deceivers, that burn and torture. After a brief run of luck, they ruin the winner; yet are they to the gambler sweet as honey. 8. Their troop of fifty-three (an allusion probably to the points) disports itself after rules as fixed as Savitar’s ordinances. They bow not to the wrath even of the fiercest-the king himself makes obeisance to them. 9. They roll downward; they bound upward having no hands, they overcome those who have. These celestial coals, when thrown on the dice-board, scorch the heart, though cold themselves. 10. Forsaken mourns the gamester’s wife the mother for the son who roams she knows not where. 9. They roll downward; they bound upward having no hands, they overcome those who have. These celestial coals, when thrown on the dice-board, scorch the heart, though cold themselves. 10. Forsaken mourns the gamester’s wife the mother for the son who roams she knows not where. It vexes him to see his own wife and then to observe the wives and happy home of others. 11. In debt, anxious, eager for money, he goes to other people’s house at night. In the morning he yokes the brown horses (the dice); by the time the fire goes out, he breaks down miserably. 12. To him who is the leader of your great host, the king of your whole band, I will not begrudge gifts-I swear it with outstretched fingers. 13, ‘Let the dice alone; tend thy farm; rejoice in the goods and be content. Here, gamester, is thy cattle; here thy wife. This word spake to me the adorable Savitar. 14. Make peace then and take pity on me, nor entice me any longer with your dire witchery. O dice! let your wrath, your enmity abate. Let another pine a bondsman to the brown ones." That the vice of gambling should breed the worse vice of cheating at play stands to reason. Accordingly, we find it mentioned in the Rig Veda with a frequency and familiarity which shows the practice to have been a common one, though accounted very heinous for instance, Ushas cheats men out of their lives, as the clever gambler, his associates out of the stakes. Chastisement of a gambler by his father was deemed to be legitimate exercise of parental control. Cheating at play appears in the Rig Veda as one of the most frequent of crimes; and the word for "gamester" kitava came to mean "cheat" in classical Sanskrit. One passage in Rig Veda in particular is of special interest as it shows that the adultery of a woman whose husband gambled was of quite ordinary occurrence. Cheating at play appears in the Rig Veda as one of the most frequent of crimes; and the word for "gamester" kitava came to mean "cheat" in classical Sanskrit. One passage in Rig Veda in particular is of special interest as it shows that the adultery of a woman whose husband gambled was of quite ordinary occurrence. The vice of gambling was greatly prevalent in Vedic times because, as pointed out by A.C. Das in his "Reg Vedic Culture" (1925), at page 229: "In the nomadic and pastoral stages of existence, the cares of life were few; and when there was plenty of food and drink available, the idlers must have invented the game to enable them to while away their time, and to afford them some excitement in their humdrum existence. Even to this day, among the nomadic tribes of India gambling is a besetting vice, which is responsible for thieving, robbery and other crimes" Again, at page 231: "There was probably an appointed place or hall for gambling. The Sabha or public assembly hall was clearly used for dicing, especially when the assembly was not transacting any public business. In later Vedic literature, a dicer is called Sabhasthanu, or ‘pillar of the assembly-hall’ doubtless because of his constant presence there. There is a verse in the Rig Veda, of doubtful sense, which seems to imply that sometimes widows visited the dicing-hall with a view to gain wealth by gambling. Such conduct on their part was, of course, not approved, as the conduct of a brother less young woman who sought the company of young men met with public disapproval". (Macdonell’s "Vedic Index", Vols. I and II, P.T. Srinivasa Iyengar’s "Life in Ancient India in the Age of the Maurias.") Then coming to the epic age, the plot of the Mahabaratha hinges round a great gambling tournament at which Yudhistira lost his kingdom to his wicked cousin Duryodhana and the epic deals with a similar story of Nala and Damayanthi. ("The Story of Civilisation", Will Durant "Our Oriental Heritage."). Then coming to the age of law-givers, Kautilya like Yajnavalkya recommends centralization of gambling. Betting and challenging are also included in this category. There were licensed gambling houses. The superintendent was named ayutadhyaksa, the officer-in-charge who supplied dice for hire. Other receipts under this head were a share of 5 per cent. Then coming to the age of law-givers, Kautilya like Yajnavalkya recommends centralization of gambling. Betting and challenging are also included in this category. There were licensed gambling houses. The superintendent was named ayutadhyaksa, the officer-in-charge who supplied dice for hire. Other receipts under this head were a share of 5 per cent. on what was won by every respective winner, fees for licence and fees for supplying water and accommodation. Besides these there were fines levied upon false players, deceitful winners and the use of artifice in games. At the same time he was allowed to carry on sale and mortgage transactions, i.e., presumably to buy and sell gambler’s properties, lend money to them on mortgages. Any gambler who cheated was liable to the purva sahasa danda as well as the penalty for theft or fraud and to restore the amount of his winnings. That the State centralised this play is evidenced from Apastamba Dharma Sutra where it is said that in a portion of the assembly house only could the players play at this game. According to Haradatta this was confined to the first castes who took fixed contracts, daily, monthly, or yearly. These swelled the exchequer. (Monahan: I.C.S. "The Early History of Bengal" Page. 109, etc.; Dikshitar: "Hindu Administrative Institutions" (Madras University Publication)", page 175.) Then coming to the Buddhist period, the Jataka Tales give vivid descriptions of the extensive prevalence of gambling and the serious consequences arising therefrom. (Rhys Davids "Buddhist India," London (1903), page 185, etc.; The Jataka English translation, Cambridge, throughout.) In regard to the subsequent period of Hindu India, we have extensive information from the classical popular literature. In the Panch Tantra, translated from Sanskrit by Arthur W. Ryder, Jacob Publishing House, Bombay, it has been said that a king should choose as his advisers only those who think of dice as death, wine as poison stings, other’s wives as statutes. Then there is a passage which says "whoever saw or heard a gambler’s truthful word, a near and eleanly crow, a woman going slow in love, a kindly snake, a drunkard’s love of science and a king in friend’s alliance." Elsewhere it is stated that the seven vices are: Drink, women, hunting, scolding, dice, greed and cruelty. Then there is a passage which says "whoever saw or heard a gambler’s truthful word, a near and eleanly crow, a woman going slow in love, a kindly snake, a drunkard’s love of science and a king in friend’s alliance." Elsewhere it is stated that the seven vices are: Drink, women, hunting, scolding, dice, greed and cruelty. In Jambaladatta’s version of the Vetalapanchavimsati, edited by Mr.Emeneau, American Oriental Series, Volume 4, the stories give a vivid description of the social life obtaining then and contain many references to gambling as one of the common vices of the middle-class and upper-class of society, especially story No. 1 "How Prince Vajramukta married Padmavathi", "The Myna’s Story" and the 17th story "How the boy laughed when being sacrificed". In Somadeva’s Katha Sarit Sagara, (ibid.) translated by Tawney, Volume IX, there are several interesting descriptions like the Demon’s tale of the cunning gambler Dagineya and the bold gambler by name Thinthakarala, describing the functions and subterfuges of gamblers. In Volume VII, we have got the story of a young man called Chandrasvamin who, when he grew up, exclusively devoted himself to the vice of gambling and was a regular attendant at the great gambling hall. The story gives a graphic description of the gambling hall. It is stated that on one entering the great gambling hall to gamble, calamities seemed to be continually watching that hall with tumbling dice for rolling eyes, like the black antelope in colour and saying to themselves, "whom shall we seize on here?" and the hall full of the noise of the altercations of gamblers, seemed to utter this cry: "Who is there whose wealth I could not take away? I could impoverish even Kuvera, the lord of Alaka" . But this young man playing dice loses everything including his clothes and the money borrowed in addition and being asked to pay up that impossible sum, is unable to do so and is beaten with sticks and then when he made himself motionless as a stone and to all appearance dead, the proprietor got angry and told the gamblers that the fellow was beginning to try the petrifaction dodge and therefore he should be thrown into some blind well. This is done and then this young man recovering reflects that he had been robbed by these gamblers by downright cheating and in course of time becomes reformed on account of the advice given by an ascetic. Vikrama’s Adventures or the Thirty-two Tales of the Throne, is a collection of stories about King Vikrama as told by the 32 statuettes that supported the throne. This has been published by the Harvard University Press. The popular vice of gambling is portrayed in the story of the 27th Statuette, viz., "Vikrama reforms a gambler" where Vikrama describes the house of gambling as a disgrace, an abode of thieves and harlots and the like, a treasure-house of great disasters and the gambler gambling as the whole soul of him who gets no rest from its terrible infatuation and that a man who is attached to it is surely bound for perdition. Dasakumaracharita is a collection of stories of the adventures often princes, which throw a flood of light on the ancient social life of this country. They are stories of common life, relating to adventures of a lively set of people, who kill, cheat, and rob, as it were for diversion. One of these ten princes arrives at a place called Champa on the Ganges, sees a Bauddha mendicant seated under an Asoka tree near the entrance of a Vihara. The mendicant gives an account of himself, telling that he was the son of a rich banker, and warns the young prince Apaharavarman of the evils of gambling. He proceeds to the city, encounters the tricks and frauds of the rogues with which Champa notorious abounded and he finds how gambling drinking and thieving went hand in hand. “I entered”, he says, “the gambling houses, was associated with the gamesters, and was never tired of watching those who were skilled in the twenty-five sorts of games, knowing how to cog dice and shift cards, etc., unperceived.” He delighted also to engage in affrays, to wheedle the resolute and to bully the timid. Then he says that he went out thieving, was taken a prisoner, felt repentant, became a reformed person and a worthy citizen. There is a graphic description of gambling in Sudraka’s Vasantasena: Gambling was a legalised vice, there was an association which formulated rules of play and keepers of gaming saloons saw to it that these were strictly enforced. Then he says that he went out thieving, was taken a prisoner, felt repentant, became a reformed person and a worthy citizen. There is a graphic description of gambling in Sudraka’s Vasantasena: Gambling was a legalised vice, there was an association which formulated rules of play and keepers of gaming saloons saw to it that these were strictly enforced. This is clear from the conversation between Mathura Sudraka (Tamil litt.) keeper of gambling den and Samuhaka the gambler who has lost heavily in play to him. “Mathura.-Here now, I arrest you in the name of the Player’s Association. Samuhaka (gets up sorrowfully): How now, I have been arrested in the name of the Players Association. Ah; This is a rule which we gamblers cannot break. But from what source am I to pay it?” Tamil literature is replete with the evils of gambling which was widely prevalent in the Chera, Chola, Pandya and Vijiyanagar Kingdoms and for describing which we have no space. We can complete this interesting account with the classical Tamil proverbs: (Desire not gambling) ‘(Gambling and boasting end in sorrow) (vide Tamil Proverbs with their English Translation containing upwards of Six Thousand Proverbs by the Rev. R.P. Perceval, Second edition, (1874). Therefore, we have now to examine the facts of this case to find out whether a common gaming house and a game of chance have be in made out. A “common gaming house” means a place of public resort where a number of persons are invited to congregate for the purpose of gaming. It must be proved that people were accustomed to go there. It does not mean that the same persons need go more than once but that a number of people were in the habit of resorting to the house as a place well known to them where they can get what they want in the way of gambling. It must be remembered that a common gaming house is one kept for profit or gain of the person keeping it. Therefore, in order to constitute ahouse, a common gaming house, it must be shown that the owner or occupier takes a fixed commission which is irrespective of the result of the gaming or, at the outside, that he manipulates the conditions in such a manner that he cannot possibly lose. The essential element is charge for the use of common gambling house. The essential element is charge for the use of common gambling house. If this element is wanting, the occupier of the premises cannot legally be convicted. The mere fact that certain articles kept by a man were used as instruments of gaming, if it could not be said that they were used for his profit or gain, does not convert the house into a public gaming house. With a view to convict a person for keeping a common gaming house, it is necessary for the prosecution to prove that he owned the house or was the occupier of it and that the instruments of gambling were kept or used for the profit or gain of that person; Kandaswami Chetty, In re1, Ramaswami Iyer v. Emperor2, Latchmi Ram v. Emperor3, Raghunath v. Emperor4, Bhagwandin v. Emperor5, Emperor v. Basant Rai6, Emperor v. Dattareya7, Emperor v. Jusule8, Avvor Rengaswami, In re9, Krishnaswami Naidu, In re,10, Srinivasachari v. Resu11. This evidence can be procured in the following ways. The owner may admit the offence or it will have to be proved by the fact that the Police Officers we re keeping the house under observation on different dates and that a number of people have been, out of all proportion to legitimate visitors, frequenting the place. In addition,decoy-witnesses can be used to speak to inside information. But inasmuch as the evidence of decoy-witnesses has to be scrutinised with great care, though the evidence of a decoy is not that of an accomplice, prudence requires that two or more decoys on different occasions should be used so that the information given by one can be checked with the information given by the others and the Court may accept the evidence without hesitation. ‘Well as the Kural has stated the information of one spy must always be cross-checked by the information of another. This evidence will have to be supplemented by examining persons living in other portions of the same house or in adjoining houses, who, if really the premises had become a gambling den, will be the first to speak to that notorious reputation as well as what they had observed. This type of evidence is considered as adequate and necessary, for instance, by the Metropolitan Police in England, for, bringing home the offences of running gambling dens and brothel-running. This type of evidence is considered as adequate and necessary, for instance, by the Metropolitan Police in England, for, bringing home the offences of running gambling dens and brothel-running. This cannot be short-circuited by adducing the testimony of nam ke vasthe trap witnesses to show that many gambling dens have been booked for the purpose of statistical returns and as evidence of local Police zeal for working these beneficial Acts. Bearing these principles in mind, if we examine the facts of this case, we find that there is not a little of reliable evidence that this accused 1 was running a common gaming house. Accused 1 has got to be acquitted and is hereby acquitted. The fine amount, if collected, will be refunded. Turning to the other requirements, viz , that the game which is played must be game of chance, the word “mere” used in the phrase “games of mere skill” stands for “pure”. Games of mere skill are not penalised. There are games in which chance is all in all and there is no element of skill. In such cases no difficulty is felt, for such games are clearly within the ambit of the Act. On the other hand, where in a game, chance plays no part or a very negligible part, the matter is beyond dispute and the provisions of the Act are not applicable. The difficulty arises only when in a game both elements of chance as well as skill co-exist. The test in such cases is whether the predominating element is of skill or of chance. In each case therefore it has to be determined whether the main element is one of skill or of chance. If the preponderating element is of chance, then it would come under the Act and otherwise not. Thus various circumstances have to be taken into consideration and each case has to be decided on its own merits. The Act deliberately used the words “found gaming.”, which is wider than “seem gaming”. The word “found” is more akin to “discovered.” It stands to common-sense that the gamblers would not go on playing when the Police raid is on. They would naturally remove the traces and hide the cards, etc. The Act deliberately used the words “found gaming.”, which is wider than “seem gaming”. The word “found” is more akin to “discovered.” It stands to common-sense that the gamblers would not go on playing when the Police raid is on. They would naturally remove the traces and hide the cards, etc. Therefore, the point to be determined, whether a game of chance or a game of pure skill like contract bridge was played, would depend upon various circumstances like the class of players, stakes, etc. Here comes the importance of the trap-witness. It is he alone who can furnish the requisite information as to what was the game that was being played. (See Ram Lal Anand “The Public Gambling Act” with local amendment and enactment, Eastern Law House, Calcutta (1935) pages 64-65, etc.) Otherwise, though the prosecution starts with a presumption in its favour from the materials of gaming found, if the player accused assert that they were playing a game of skill as contract bridge and there is nothing to improbabilise it, the benefit of the doubt raised must go to the accused and the prosecution will be at an end. The material discovered in relation to a card game will equally support both card games of skill and card games of chance. Bearing these principles in mind, if we examine the facts of this case, we find that there is no reliable evidence that mangatha was being played. On the other hand, there is every reason to believe, having regard to the class of players, the place in which it was played and the surrounding circumstances, that it was rummy which is a game of skill, as spoken to by the accused, which was being played. I need not point out that in the circumstances of a case of this description the uncorroborated testimony of a decoy-witness would be worth nothing. Therefore, neither the accused persons who were participants in the game nor those who were watching, can be convicted. Therefore, the convictions of accused 1 to 13 under section 46 of the Madras City Police Act, are set aside notwithstanding they have not preferred revision applications and exercising the powers of this Court to do so under section 439 of Criminal Procedure Code. Prasad Gareri v. Resari1. In regard to the confiscation of the money, the following principles should be borne in mind. Prasad Gareri v. Resari1. In regard to the confiscation of the money, the following principles should be borne in mind. Under section 10 of the Madras Gaming Act, it is of course obvious that it is only money which is reasonably suspected of having been used or in ended to be used for the purpose of gaming which can be forfeited and the Magistrate is not entitled, without some kind of material for a finding on this point, to order confiscation of all money seized. Under section 5 of the Gaming Act, there is no necessity on the part of the prosecution to prove that money seized from persons in a gaming house was used or even intended to be used for gaming, because the Police are entitled to seize on reasonable suspicion. But it is only where the Magistrate brings his mind to bear on the question and is satisfied that the persons found in a common gaming house intended to use the money found on their persons for the purpose of gaming, apart from having them, the money, etc., on their persons, he is justified in ordering confiscation. This caution applies with greater force to Jewellery, etc., like watches, rings. They cannot be confiscated unless there is proof they were intended to be used for the purpose of gaming; and not on mere suspicion. Bhagwandas v. Emperor2; Sadshiva, In re3; Pyarelal Gokul Prasad v. Emperor4. On a conviction for gambling and for keeping a common gaming house under sections 8 and 9 of the Gaming Act, it is not competent to the Court to pass an order of confiscation as regards the moneys found on the persons of the accused who are convicted of gambling, though such an order is perfectly legal as regards moneys found in the place where the gambling took place, because the latter must have been used for the purpose of gambling. A difference also must be made, as regards the fines to be imposed, between the gamblers and the person who keeps the gaming ho use, the latter being the guiltiest of all. The former should not be treated with the same severity as the latter: In re Subramania Iyer5, In re Ramaswami Sarma6, Rattaya v. Emperor7. A difference also must be made, as regards the fines to be imposed, between the gamblers and the person who keeps the gaming ho use, the latter being the guiltiest of all. The former should not be treated with the same severity as the latter: In re Subramania Iyer5, In re Ramaswami Sarma6, Rattaya v. Emperor7. The confiscation of money in this case was not done by the Magistrate bearing these principles in mind, and would not have been supported by me even if otherwise I had confirmed the convictions. Therefore, the order of confiscation is set aside. It is left open to the acquitted persons to join together and take a refund and apportion the amount amongst themselves. P.R.N. ----- Revision allowed.