Patna High Court
Lachmi Narain Marwari And Anr. vs Emperor on 3 May, 1923
Equivalent citations: 77IND. CAS.177, AIR 1924 PATNA 42
JUDGMENT John Bucknill, J.
1. This is an application in criminal revisions 1 jurisdiction. It is made on behalf of two persons who were prosecuted and convicted of an offence against the provisions of Section 4 of the Public Gambling Act (1807). They were convicted by the Senior Deputy Magistrate of Dhanbad on the 2nd December 1922; they pleaded guilty. The first applicant was fined Rs. 40 and the second applicant Rs. 25. When the Police raided the premises where the gambling was going on they searched the persons of the applicants and took from them a considerable sum of money which the learned Vakil who appears, on behalf of the applicants informs the Court was of the value of about Rs 100. After the conviction the applicants made an application to the Deputy Magistrate asking for a return to them of the money which had been found in their possession by the. Police. I take it that this money would certainly have been, available for the purpose of paying the tine, but I understand from the learned Vakil who appears on behalf of the applicants that the fines were paid and that the application f or refund of the money seized upon their persons was made after such payment. Now, on the 2nd December the Deputy Magistrate of Dhanbad passed the following order:
The money found on the persons who visited the gaming house for gambling has been forfeited to Government.
2. From this order the applicants applied to the Additional District Magistrate of Dhanbad who, however, although he thought that the matter presented considerable legal difficulty, did not think that it was within his province to refer the case to this Court merely to obtain a correct. interpretation of the law; which he considered was somewhat doubtful. He accordingly refused to make any reference to this Court and a Rule was accordingly obtained in provisional jurisdiction from Mr. Justice Mullick and Mr. Justice Macpherson on the 18th April last. The matter has now come up before me.
3. I think that it is important to consider the words of the section of the Act under which it is said that the accused were convicted. Section 4 reads:
Whoever is found in any such house, (such house here means common gaming house) tent, room, space or walled enclosure, playing or gaming with cards, dice, counters,. money or other instruments of gaming, or is found there present for the purpose of gaming, whether playing for any money, wager, stake or otherwise, shall be liable on conviction before any Magistrate, to a fine not exceeding one hundred rupees, or to imprisonment of either description as defined in the Indian Penal Code for any term not exceeding one month, and any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been therefore the purpose of gaming.
Section 5 reads:
If the Magistrate of a District or other officer invested with the full powers of a Magistrate or the District Superintendent of Police, upon credible information and after such inquiry as he may think necessary has reason to believe that any house, tent, room, space or walled enclosure is used as a common gaming house, he. may either himself enter or by his warrant authorise any officer of Police, not below such rank as the Lieutenant-Governor shall appoint in this behalf, to enter, with such assistance as may be found necessary by night or by day, and by force, if necessary, any such house, tent, room, space or walled enclosure, and may either himself take into custody or authorise such officer to take into custody all persons whom he or such officer finds therein, whether or not such persons may be then actually gaming, and may seize or authorise such officer to seize all instruments of gaming, and, all moneys and securities for money, and articles of value, reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein; and may search or authorise such officer to search all parts of the house, tent, room, space or walled enclosure which he or such officer shall have so entered, when he or such officer has reason to believe that any instruments of gaming are concealed therein, and also the persons of those whom he or such officer so takes into custody and may seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search.
Under Section 8 it is laid down:
On conviction of any person for keeping or using any such common gaming house, or being present therein for the purpose of gaming, the convicting Magistrate may order all the instruments of gaming found therein to be destroyed and may also order all or any of the securities for money, and other articles seised not being instruments of gaming to be sold and converted into money, and the proceeds thereof with all moneys seized therein to be forfeited; or in his discretion may order any part thereof io be returned to the persons appearing to have been severally thereunto entitled.
4. Now, it is quite clear to my mind that what is liable to forfeiture are those things which may be reasonably suspected to have been used or intended to be used for the purpose of gaming It is impossible, I think, to suggest that the private property of an individual who is found gaming in a gaming house could be seized and forfeited unless it was quite clear that there was attached to such private property the taint hat it was reasonably suspected to have been used or intended for the purpose of gaming. It may be said that even with regard to such lainted things the Magistrate has a discretion to order their return in whole or in part to whom they belonged. But the law itself provides the penalties by way of fine and imprisonment for the offence, and over articles which cannot be clearly regarded as being tainted with the reasonable suspicion of having been used or intended to be used for the purpose of gaming, I think, that it must be clear that the Court had no jurisdiction whatever. It is said that if that was so, circumstances might arise which might on the one hand render the provisions of the Act somewhat nugatory; whilst on the other hand they might render the position of the person convicted one of the utmost hardship and injustice. In illustration of the first proposition it is pointed out that, if money found on a person discovered in a gaming house cannot be seized and forfeited, the probability would be that immediately upon the least alarm the gamblers would at once put in their pockets all the money on the premises. On the other hand to illustrate the latter position it is perfectly easy to imagine a ca se where a person in possession pi a very large sum of money, which had not been used and which he had no intention whatever of using for gaming, paid a visit to a gaming establishment, he might find that he forfeited the whole of his property under the provision of this section, a result which I do not think the legislature could ever have contemplated or which the construction of the Act itself will permit. It must be judicially clear that the money or articles seized are reasonably suspected to have been used or intended to be used for the purpose of gaming. It is obviously quite impossible or a Magistrate definitely to say, without proof, what amount of money found on an individual, in a gaming house what been used for gaming or is intended by its owner to be used in gamning. It is also equally impossible for Magistrate without proof to say that articles of value such, for example, as a watch or rings found on the person of an individual discovered in a gaming house, may have been intended to have been used or may have been used as pledges or securities for money wagered. The learned Vakil who appears on behalf of the applicant was unable to find any authority dealing with this matter under the provisions of the Public Gambling Act (1867). But he drew my attention to several cases which have been decided in the High Court of Aliahabad under the provisions of the Public Gamblirg Act, 1867. This Act is not quite identical with the Bengal Gambling Act (1867) but is in many respects very similar Section 4 reads:
Whoever is found in any such house, wa led enclosure, room or place playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found there present for the purpose of gaming, whether playing for any money, wager, stake, or otherwise, shall be liable to a fine not exceeding one hundred rupees, or to imprisonment or either description, as defined in the Indian Penal Code for any term not exceeding one month, and any person found in any gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.
Section 5 reads:
If the Magistrate of a District or other officer invested with the full powers of a Magistrate or the District Superintendent of Police upon credible information and after such enquiry as he may think necessary has reason to believe that any house, walled enclosure, room or place is used as a common gaming house, he may either himself enter or by his warrant authorise any officer of Police not below such rank as the Lieutenant Governor or Chie Commissioner shall appoint in this behalf to enter with such assistance as may be found necessary, by night or by day, and by force, it necessary, any such house, walled enclosure, room or place, and may either himself take into custody, or authorise such officer to take into custody all persons whom he or such officer finds therein, whether or not then actually gaming, and may seize or authorise such officer to seize all instruments of gaming and all moneys and securities for money, and articles of value, reasonably suspected to have been used orintended to be uged for the purpose of gaming which are found therein; and may search or authorise such officer to search all parts of the house, walled enclosure, room or place, which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein, and also the persons of those whom he or such officer so takes into custody and may seize or authorise such officer to seizie and take possession of all instruments of gaming found upon such search.
Whilst Section 8 reads:
On conviction of any person for keeping or using an such common gaming house or being present therein for the purpose of gaming the convicting Magistrate may order all the instruments of gaming found therein to be destroyed and may also order all or any of the securities for money and other articles seized not being instruments of gaming to be sold and converted into money and the proceeds thereof with all moneys seized therein to be forfeited or in his discretion may order any part thereof to be returned to the persons appearing to have been severally thereunto entitled.
5. It will be observed at once that although slightly differing in detail, these sections correspond very closely to the sections of the Act which is applicable in this province. In the case of Emperor v. Tota 26 A. 270 : A.W.N. (1904) 11 : 1 Cr. L.J. 35 it was held that where persons were found gaming in a public place under circumstances to which, Section 13 of the Public Gambling Act (1867) was applicable although instruments of gaming, etc., could be seized by the "Police, there is no authority. for the confiscation of money found with the persons arrested. Section 13 of the Act applicable to the United Provinces corresponds to our Section 11 relating to planning for money in any public market, fair street, place or thorough-fare. The case is not altogether identical with that which is now before me and some distinction is drawn between the position which exists under the provisions of Section 13 and that which exists under the provisions of Section 8. The difference lies apparently between the wording of the section as in the one case it deals with gaming in a common gaming house and in the other case gaming in a public place. In the case of Tulla v. Emperor 54 Ind. Cas. 250 : 41 A. 366 : 17 A.L.J. 368 : 1 U.P.L.R. (A.) 161 : 21 Cr. L.J. 42 it was held by Mr. Justice Ind say that in the case of men convicted under Section 3 or 4 of the Public Gambling Act, 1867, the law does not contemplate the confiscation of money found on the persons of the accused. His Lordship in his decision observes:
This case has been referred by the Sessions Judge of Saharanpur for the purposes of having an order passed by a Magistrate set aside. The Magistrate was dealing with a case under the Gambling Act and after convicting the persons who were accused before him he made an order confiscating some of the money which was found in possession of the persons concerned. The Judge, I think, is right in saying that the law does not contemplate the confiscation of the money found on the persons of the accused. I accept the recommendation of the learned Judge and direct that the order of confisacation beset aside.
6. The decision in this case (decided in 1919) seems to have been at variance with the decision of Mr. Justice Rafique in Emperor v. Kifayat 49 Ind. Cas. 165 : 41 A. 272 : 17 A.L.J. 64 : 20 Cr.L.J. 133 where his Lordship thought that an order ordering the confiscation of money found, on the premises was a legal order. The report, however, is not very clear. It would seem, so far as I can gather, that the order of the Magistrate was direction confiscation of the money found in the house. I cannot see that it was an order ordering the confiscation of the money found on the persons of those who were in the common gaming house. The head-note is probably incorrectly reported. For it reads:
A conviction under Section 3 or Section 4 of the Public Gambling Act, 1867, differs from a conviction under Section 13, in that in the case of the latter the forfeiture of money found with the persons convicted is not lawful, but in the case of the former the forfeiture of money of securities for money found in a common gaming house is lauful.
7. This head-note may perhaps be a little misleading and both the decisions of Mr. Justice Rafique and Mr. Justice Lindsay may be capable of reconciliation. I have myself no doubt that in the ordinary case of money found in the possession of a person who is discovered in a gaming house such money is not capable forfeited. The Act provides its penalties. Everything found on the prenjiet or on the persons there which is surely taled with the gaming mark, that is to say, if we use the words of the section, reasonably suspected to have been used or intended to be used for the purpose of gaming, is liable to forfeiture and may or may not be returned under the discretion of the Magistrate under the provisions of Section 8 but not otherwise.
8. The order, therefore, of the Deputy Magistrate of Dharbad dated the 2nd December 1922 will be set aside. The money seized by the Police from the two applicants must be refunded to them.