ORDER This is a petition to revise the order of conviction and sentence passed against the petitioner by the First Class Magistrate, Srirangapatna in C.C No. 2411 of 1961 and confirmed by the additional Sessions Judge, Mysore, in Criminal Appeal No. 7 of 1962 on the ground that the lower Courts had fallen into an error of law in convicting the accused under section 63(1)(b) of the Mysore Police Act merely because certain slips and copies of Newspapers alleged to have been used as instruments of gambling were found in the building occupied by him for his hotel. The facts material to the petition may be briefly stated as follows: The appellant and seven others were charge-sheeted under section 63(2) of the Mysore Police Act in C.C. No. 2387 of 1961 on the file of the Special First Class Magistrate, Srirangapatna and in addition the appellant was also charge-sheeted separately for an offence under section 63(1)(b) of the Act. The appellant was the 8th accused in the first charge-sheet. The first seven accused pleaded guilty to the charge of gambling and were convicted. Thereafter, the two cases were clubbed together and the petitioner was tried for the offence of gambling as also for knowingly or wilfully permitting the other accused for using the building for the purpose of gaming. He was acquitted of the offence punishable under section 63(2) of the Act but was convicted for the offence under section 63(1)(b) of the Act and was sentenced to suffer simple imprisonment for one month and to pay a fine of Rs. 200. In the Court of appeal, it was urged on behalf of the applicant that in the absence of any evidence to show that the applicant had permitted the other accused to use the building as a common gaming house for gain or profit and in the absence of evidence hat the building had been knowingly or wilfully permitted to be so used, the conviction of the petitioner for the offence punishable under section 63(1)(b) of the Act was illegal. The learned Sessions Judge was inclined to the view that ‘it is incumbent on the prosecution to establish by direct evidence that the owner was deriving benefit or profit by running this common gaming house.‘But he accepted the dictum laid down by the Chief Justice of the former Mysore High Court in C. Gangappa v. State of Mysore1 to the effect that a conviction for the offence of keeping a common gaming house is not bad merely because of the absence of evidence of monetary benefit to the accused contemplated under section 4(i)(3) of the Police Act as Explanation 1 to section 63 provides for a presumption of gain when instruments of gaming are found, and confirmed the order of conviction and sentence. It is not disputed that the petitioner is the lessee of the building and 1 as been running a Milk Bar, which had been closed at the material date under an order of the local authority owing to the prevalance of an epidemic. It is also not disputed that when the building was raided on 7th September, 1961, by the Police armed with a warrant under section 38 of the Mysore Police Act, the seven accused who were convicted were found engaged in ‘satta gambling’ and that certain instruments of gaming including some cash were recovered during the raid. In 1 he panchanama that was drawn up immediately after the search, it was stated that the accused who was standing at the door, ran away at the sight of the Police. The plea of the accused was that he was not at the Hotel at the time of the raid as he was bedridden owing to illness. No finding about his presence was recorded by the Magistrate, though he rejected his plea of illness. The learned Sessions Judge has not also recorded that the accused was present. On going through the evidence, I am constrained to observe that there are material contradictions between the evidence of the Circle Inspector of Police (P.W-1) and that of the Sub-Inspector of Police (P.W-5) on this point. I have no doubt in holding that the accused was not present in the premises as alleged by the prosecution. There is no evidence also to show that the accused were permitted by the applicant knowingly or wilfully to gamble in the hotel. I have no doubt in holding that the accused was not present in the premises as alleged by the prosecution. There is no evidence also to show that the accused were permitted by the applicant knowingly or wilfully to gamble in the hotel. But the learned Sessions Judge has observed that it was not necessary for the Prosecution to establish that the accused knowingly or wilfully permitted the hotel to be used for the purpose of gambling as the presumption under the section was avilable to the prosecution. We have therefore to consider whether the conviction of the accused under section 63(1)(b) of the Mysore Police Act is legal and valid. Before referring to the decided cases on this question, I may refer to the relevant provision of the Mysore Police Act. Section 63(1)(b), so far as it is relevant for our purpose, lays down that whoever being the owner or occupier of a building enclosure, room, place or vehicle, knowingly or wilfully permits the same to be used by any other persons for the purpose of common gaming house, shall be punished with imprisonment which may extend to six months and with fine. The proviso to this sub- section is not relevant. The proviso to this sub- section is not relevant. Sub- section (2’ provides for punishment of a person who ‘is found in any gaming house gaming or present for the purpose of gaming.‘ Explanation 1 to this section on which the prosecution has placed reliance, reads as follows: “When any instrument of gaming has been seized in any building enclosure, room, place or vehicle entered or searched under the provisions of section 38 or on person found therein and in the case of any other thing so seized, if the Court is satisfied that the Magistrate or the Police Officer who entered such building, enclosure, room, place or vehicle, had reasonable grounds for suspecting that he thing so seized was an instrument of gaming the seizure of such instrument or thing shall be evidence until the contrary is proved that such building, enclosure, room, place or vehicle is used as a common gaming house and the persons found therein were then present for the purpose of gaming although no gaming was actually seen by the Magistrate or the Police Officer or by any person assisting under the authority of either of them.” It is the determination of the scope of this Explanation that is material for deciding the legality of the petitioner's conviction. In this connection it is also necessary to refer to the definition of ‘common gaming house’ contained in section 4(i)(3) of the Act. It reads: “‘common gaming house’ means a building, enclosure, room, place or vehicle in which any instruments of gaming are kept or used for the profit or gain of the person owning or occupying such building, enclosure, room, place or vehicle, or of the person using such building, enclosure, room, place or vehicle whether he has a right to use the same or not, such profit or gain being either by way of charge for the use of the instruments of gaming or of the building, enclosure, room, place or vehicle or otherwise howsoever.” It is necessary to note that the essential element of the definition is that the instruments of gaming kept in the building should have been kept or used for the profit or gain of the person owning or occupying the building. It is immaterial whether the profit or gain is by way of a charge for the use of the instruments of gaming or of the building, or the profit or gain accrues to the owner or occupier in any other manner. If the definition of ‘common gaming house’ and Explanation (1) noted above are considered together, it would be manifest that while the Explanation makes no reference to the owner or the occupier of the building or to his keeping the instruments of gaming for profit or gain, the definition makes it obvious that so far as the owner or the occupier of the building is concerned, proof of his making profit or gain is essential for holding the building to be a ‘common gaming house’ The provisions of Explanation (1) to section 63 have to be read as a whole if we have to understand their scope aright. The first part of the Explanation mentions that a presumption of the building, enclosure, room or place as one being used for ‘common gaming house’ can be drawn if there is seizure of certain instruments of gaming by a Magistrate or a Police Officer after a search under the provisions of section 38 of the Act. The second part restricts the operation of this presumption to ‘persons found therein’ as persons present for the purpose of gaming although no gaming was actually seen by the Magistrate, Police Officer or any person assisting that authority. To extend the presumption to the owner or occupier of the building for the purpose of holding that he was keeping or using that building as a ‘common gaming house’ would not only negative the essential ingredient of the definition of ‘common gaming house’ but would also result in an unwarranted amplification of the scope of the second part by roping in even those persons who are not found in the building. On a careful consideration of the language of the Explanation and definition, I am clearly of the opinion that the presumption is confined to persons found in the house when the instruments of gaming are seized in the manner aforesaid so that such persons will not be heard to say that the building in which they were present and in which the instruments of gaming were seized was not a ‘ common gaming house.‘ In this view of the matter, the prosecution must establish, in order to sustain a conviction of the owner or occupier, that he was using or permitting the use of the building or of the instruments seized therefrom for the purpose of gaming for some profit or gain. This view finds support from the various decisions which were relied upon by Mr. Deshpande for the appellant. He has drawn my attention to the decision of the Bombay High Court in Emperor v. Mohamed Dawood1 where their Lordships had to deal with identical provisions of the Bombay Prevention of Gambling Act. The definition of ‘common gaming house’ as given in that Act is identical in every respect with the definition incorporated in the Mysore Police Act. Explanation (1) to section 63 corresponds to section 7 of that Act which reads as follows: “ When any instrument of gambling has been seized in any house, room, or place entered under section 6 on or about the person of any one found therein, and in the case of any other thing so seized if the Court is satisfied that the Police Officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen by the Magistrate or the Police Officer or by any person acting under the authority of either of them.” It would be obvious by a comparision of section 7 of the Bombay Act with Explanation (1) to section 63 of the Mysore Police Act that the gist of the two provisions is substantially the same. Section 6 of the Bombay Act corresponds to section 38 of the Mysore Police Act. Section 5 of the Bombay Act provides for the punishment of a person who is ‘found in any common gaming house gaming or present for the purpose of gaming.‘ It also provides for a presumption that any person found in a common gaming house during any gaming therein shall, unless the contrary is proved, be presumed to be there for the purpose of gaming. Section 4 of the Bombay Act provides by sub- section (a) that whoever opens, keeps or uses any house, room or place for the purpose of common gaming house, and by sub section (b) that whoever being the owner or occupier of any such house, room or place, knowingly or wilfully permits the same to be opened, occupied, kept or used by any other person for the purpose faoresaid shall on conviction be punished with imprisonment etc. Sub- sections (a) and (b) of section 4 are identical with sub section (1) (a) and (1) (b) of section 63 of the Mysore Act. Dealing with the scope of the presumption in relation to sub- section (a) and ( b) of section 4 read with section 7 their Lordships held that: “The artificial method of proof does not extend to incriminating any particular person with an offence under section 4 , though it may not need very much evidence to prove who is the person who under section 4 (a) opens, keeps or uses the place for the purpose of a common gaming house or who under section 4 (b) being the owner or the occupier, knowingly or wilfully permits the place to be opened used kept or used by some other person for the purpose aforesaid.” They further held that the result of the artificial method of proof by presumption laid down by section 7 is “that all the persons found therein are guilty of the offence under section 5 of the Act until the contrary in proved. But in the absence of further evidence, this artificial method of proof does not extend to making any one of them or any one else guilty of the offence or liable for the penalties imposed by section 4. of the Act This decision was followed by our High Court in an unreported case (Criminal Revision Petition No. 206 of 1960) decided by Mr. of the Act This decision was followed by our High Court in an unreported case (Criminal Revision Petition No. 206 of 1960) decided by Mr. Justice H. Hombe Gowda. His Lordship was no doubt dealing with the Bombay Act, but in setting aside the conviction of the owner merely on the basis of the presumption His Lordship observed- “It is only in cases when a owner or an occupier of a house collects some amount for the use of the instrument or house or room that he can be said to be running a common gaming house” The Madras High Court has also taken the same view In re Sathyanarayana1 where his Lordship Chandrasekhara Iyer, J., had to deal with section 6 of the Madras Gaming Act (III of 1930) which corresponds to Explanation (1) to section 63 of the Mysore Police Act. In explaining the scope of this section his Lordship noticed that the evidence adduced showed that the accused was not deriving any profits by running the gaming house and that as the element of profit or gain was an essential ingredient under the definition of a ‘common gaming house’, the conviction for running a gaming house could not be sustained. In Durgaprasad v. Emperor2 their Lordships declined to stretch the presumption against the owner as in their opinion “it must be established that the owner or the occupier takes a fixed commission which is irrespective of the result of gaming, or at the outset, that he manipulates the conditio is in such manner that he cannot possibly lose.” In this view of the legal position, it would be erroneous to extend the presumption arising under Explanation (1)to section 63 to the case of an owner in the absence of any proof of profit or gain being derived by him for permitting the use of the building or of the instruments for the purpose of gambling. I may observe with great respect, that the view taken in C. Gangappa v. State of Mysore3 does not accord with the reasons given above and with the decisions of the New Mysore High Court and of other High Courts on identical provisions of law. That decision is not therefore, acceptable to me. I may observe with great respect, that the view taken in C. Gangappa v. State of Mysore3 does not accord with the reasons given above and with the decisions of the New Mysore High Court and of other High Courts on identical provisions of law. That decision is not therefore, acceptable to me. So, in the absence of any evidence that the owner was making any profit or gain and that he had knowingly or wilfully permitted the other accused to gamble in his hotel, I cannot uphold the conviction of the accused under section 63(1) (b) of the Mysore Police Act. Hence I allow the petition, set aside the order of conviction and sentence passed in the case and acquit the accused. The bail bond executed by the accused shall stand cancelled. S.V.S.-----Petition allowed.