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Sindhi Lohana Chaithram v. State Of Gujarat .
Factual and Procedural Background
The Sub-Inspector of Police, Shri Anjaria, acting on information that the appellant was keeping a common gaming house, obtained a special search warrant from Shri S.M. Pandya, Deputy Superintendent of Police, Porbandar, and conducted a raid on the appellant’s residence at Bantwa on 4 June 1961. After forcible entry, the raiding party recovered torn and burnt playing cards, intact packs of cards, cash, cigarette ends and other items from various rooms. All seven accused were found on the upper floor.
The appellant (as occupier) was charged under Section 4, and the remaining six accused under Section 5, of the Bombay Prevention of Gambling Act, 1887. The Trial Magistrate acquitted all the accused, ruling that no presumption under Section 7 could be drawn because the Deputy Superintendent who issued the warrant had not been “specially empowered by name.”
On the State’s appeal, the High Court of Gujarat disagreed, held that Shri Pandya was validly “specially empowered,” invoked the Section 7 presumption, convicted the appellant (sentencing him to one month’s simple imprisonment) and fined the other six accused. The appellant obtained special leave to appeal to the Supreme Court.
Legal Issues Presented
- Whether a Deputy Superintendent of Police can be regarded as “specially empowered” under Section 6(1)(i) of the Bombay Prevention of Gambling Act by virtue of his office, or must be empowered by name.
- Whether, upon a valid search and seizure, the statutory presumption under Section 7 that a house is a common gaming house was properly applied to the appellant and his co-accused.
- Whether the late production of the 22 January 1955 notification (empowering the Deputy Superintendent) at the appellate stage prejudiced the appellant’s defence.
Arguments of the Parties
Appellant's Arguments
- The phrase “specially empowered” in Section 6 requires individual designation by name; the 1955 notification, which referred only to the office of Deputy Superintendent, was insufficient, making the warrant invalid and disabling the Section 7 presumption.
- The production of the notification for the first time in the High Court caused prejudice, depriving the appellant of an opportunity to contest its validity and rebut the presumption.
- (Raised belatedly) The warrant was defective because it did not recite on its face the authority under which it was issued.
State's Arguments
- Under Section 6 read with Section 15 of the Bombay General Clauses Act, empowerment may be either by name or by virtue of office; the 1955 notification validly “specially empowered” the Deputy Superintendent.
- The statutory presumption under Section 7 applied because gaming instruments were seized pursuant to a valid warrant, and the appellant failed to rebut that presumption.
- No prejudice arose from production of the notification at the appellate stage; the appellant neither sought an adjournment nor indicated how he was handicapped.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Emperor v. Udho, AIR 1943 Sind 107 | Held that “specially empowered” meant empowered by name only. | Expressly overruled; Court held the interpretation incorrect. |
| Emperor v. Savlaram Kashinath Joshi (Bom.) | Recognised that empowerment can be by virtue of office. | Followed; formed the basis for upholding the warrant. |
| Aluga Pillai v. Emperor, AIR 1924 Mad 256 | Authorisation of an office-holder is special empowerment under Section 39(1) CrPC. | Cited illustratively to support office-based empowerment. |
| Mahomad Kasim v. Emperor, AIR 1915 Mad 1159 | Part of the conflict on class-based empowerment of magistrates. | Not resolved; referenced only to note conflicting authority. |
| State of Mysore v. Kashambi, (1963) 2 Cr LJ 226 | Conflict authority on class-based empowerment. | Not decided; cited in passing. |
| The State v. Judhabir Chetri, AIR 1953 Assam 35 | Divergent view on whether “Magistrate” is an office for Section 39(1). | Cited; Court declined to rule on the issue. |
| K.N. Vijayan v. The State, (1953) ILR Trav-Co 514 | Same conflict regarding magistrates as office/official. | Cited but not decided. |
| Pollubha Vajudha v. Tapu Ruda | Another authority in the ongoing conflict. | Cited but not decided. |
Court's Reasoning and Analysis
1. Statutory Interpretation: The Court examined Section 6 of the Bombay Prevention of Gambling Act alongside Section 15 of the Bombay General Clauses Act and Section 39(1) of the Code of Criminal Procedure. These provisions collectively demonstrate that powers may be conferred “by name or by virtue of office.”
2. Resolution of Conflict: Rejecting Emperor v. Udho and endorsing Emperor v. Savlaram Kashinath Joshi, the Court held that the 22 January 1955 notification “specially empowered” whoever held the office of Deputy Superintendent of Police, Porbandar—thereby validating Shri Pandya’s warrant.
3. Application of Presumption (Section 7): Once the warrant was upheld, the seizure of gaming instruments triggered the statutory presumption that the premises were a common gaming house and that persons found there were present for gaming. The Court stressed that the presumption is artificial and must be applied circumspectly, but found it unrebutted here. Resistance to police entry and attempts to destroy evidence strengthened the inference of illegal gaming; the appellant’s explanation (betrothal celebration) was unconvincing.
4. Alleged Prejudice: The Court found no procedural unfairness in introducing the notification at the appellate stage. The defence had always challenged its legal sufficiency, not its existence, and never sought additional opportunity to rebut.
5. Belated Attack on Warrant Form: The appellant’s new argument that the warrant was facially defective was refused because it had not been raised in the High Court or in the special-leave petition.
6. Conclusion on Facts: Accepting the High Court’s factual findings and citing the limited scope of interference under Article 136 of the Constitution, the Supreme Court saw no reason to disturb the convictions.
Holding and Implications
Appeal Dismissed. The conviction of the appellant under Section 4 of the Bombay Prevention of Gambling Act, 1887, and the sentence of one month’s simple imprisonment are affirmed.
Implications: The judgment clarifies that, for the purposes of Section 6 of the Bombay Prevention of Gambling Act (and by analogy similar statutes), a public officer may be “specially empowered” by virtue of holding a particular office. This resolves a previous conflict of authority between the Sind and Bombay views and reinforces the validity of warrants issued pursuant to office-based notifications. No broader doctrinal shift occurs beyond this clarification.
Bachawat, J.— The appellant and six other persons were charged under Sections 4 and 5 of the Bombay Prevention of Gambling Act 1887. The Sub-Inspector of police Shri Anjaria received information that the appellant was keeping a common gaming house. He obtained a special search warrant from the Deputy Superintendent of Police, Porbandar, Shri S.M Pandya, and raided the appellant's house in Bantwa on June 4, 1961 at 1 p.m The raiding party found the door leading to the upper floor closed. The inmates pressed against the door from the inside and did not open it until a blacksmith broke open the latch. Shri Anjaria seized torn and burnt pieces of playing cards lying on the floor of the central room, two packs of cards from a wall cabinet, some burnt cards lying on the floor and in the folds of a bed in the drawing room, four jokers and three packs of cards from trunks in the kitchen, some cash, burnt cigarette ends, bidis and matches and empty cigarette cases. All the accused were found in the upper floor. The appellant as the occupant of the house was charged under Section 4 of the Act and the other six accused were charged under Section 5 of the Act. The learned Magistrate refused to raise a presumption under Section 7 of the Act on the ground that Shri Pandya was not specially empowered by name to issue a search warrant. He acquitted all the accused. On appeal, the High Court held that Shri Pandya as the Deputy Superintendent of Police, Porbandar was specially empowered to issue the search warrant and the prosecution was entitled to the benefit of the presumption under Section 7. The High Court convicted the appellant of the offence under Section 4 of the Act and sentenced him to simple imprisonment for one month. The High Court convicted the other six accused under Section 5 of the Act and sentenced each of them to pay a fine of Rs 200, in default simple imprisonment for one month. The present appeal was filed by the appellant by special leave.
2. A search warrant under Section 6(1)(i) of the Act can be issued by a “Deputy Superintendent of Police especially empowered by the State Government in this behalf.” By a notification dated January 22, 1955, the Saurashtra Government empowered specially certain Assistant Superintendents and Deputy Superintendents of Police including the Deputy Superintendent of Police, Porbandar Division, Porbandar, to authorise by issue of special warrants in each case a police officer not below the rank of a Sub-Inspector of police to do the various things necessary in order to raid a house where the police officer suspected gaming to be carried on and which house, room or place was suspected as being used as a common gaming house. The Magistrate relying upon Emperor v. Udho AIR 1943 Sind 107 held that under Section 6, the officer must be specially empowered by name. The High Court relying on Emperor v. Savlaram Kashinath Joshi held that an officer may be specially empowered under Section 6 either by name or in virtue of his office. It is because of the conflict of opinion between the Sind and the Bombay decisions that special leave was granted in this case.
3. Section 15 of the Bombay General Clauses Act 1904 shows that a person may be appointed to execute any function either by name or by virtue of office. A person may therefore be empowered by name or by virtue of his office of Deputy Superintendent of Police to issue a special search warrant. Section 6 of the Bombay Prevention of Gambling Act requires that the Deputy Superintendent of Police must be “specially empowered” to issue the warrant. In Emperor v. Udho AIR 1943 Sind 107 the expression “specially empowered” was interpreted to mean specially empowered by name and not by virtue of his office, and an authorization of “the Deputy Superintendent of police, Rohri” was said to be insufficient for the purposes of Section 6. This decision does not lay down the correct test. A person may be specially empowered not only by name but also by virtue of his office. In Emperor v. Savlaram Kashinath Joshi it was rightly held that a notification authorizing the Deputy Superintendent of police of the Poona city to issue a search warrant under Section 6 specially empowered the holder of that office by virtue of his office to issue the warrant. We think that where power is conferred on a person by name or by virtue of his office, the individual designated by name or as the holder of the office for the time being is empowered specially. Judged by this test, the notification dated January 22, 1955, specially empowered Shri Pandya as the holder of the office of the Deputy Superintendent of police, Porbandar, to issue the search warrant under Section 6.
4. For the meaning of the expression “specially empowered” reference is often made to Section 39(1) of the Code of Criminal Procedure which provides “in conferring powers under this Code, the State Government may by order, empower persons specially by name or in virtue of their office or classes of officials generally by their official titles”. In Aluga Pillai v. Emperor AIR 1924 Mad 256 it was rightly held that an authorization of the Second Class Magistrate of Thirumangalam to try certain cases was a special empowering of the person holding that office by virtue of his office within the meaning of Section 39(1).
5. On the question whether a notification empowering all Magistrates of a certain class to try certain cases can be said to empower specially every Magistrate of that class to try those cases, there is a conflict of opinion, see Mahomad Kasim v. Emperor AIR 1915 Mad 1159, State of Mysore v. Kashambi (1963) 2 Cr LJ 226. On the further question whether a Magistrate should be regarded as an office and not as an official for the purposes of Section 39(1) of the Code of Criminal Procedure, there is a sharp conflict of opinion, see State v. Judhabir Chetri AIR 1953 Assam 35, K.N Vijayan v. State (1953) ILR TravCo 514 and Pollubha Vajudha v. Tapu Ruda. We do not express any opinion on those questions, as it is not the practice of this Court to express opinion on questions which do not arise for decision. For the purpose of this case, it is sufficient to hold that a notification conferring power on the Deputy Superintendent of police of Porbandar to issue a search warrant specially empowers the holder of that office by virtue of his office to issue the warrant.
6. We hold that Shri Pandya as the holder of the office of the Deputy Superintendent of police, Porbandar was specially empowered under Section 6 of the Bombay Prevention of Gambling Act by the notification of the Saurashtra Government dated January 22, 1955. It is conceded that the notification continued to be in force after the merger of Saurashtra with the State of Bombay. The seizure of instruments of gaming in the appellant's house entered under Section 6 raises a presumption under Section 7 that the house was used as a common gaming house and the persons found therein were then present for the purpose of gaming. In applying this artificial presumption the Court should act with circumspection. Playing cards may be kept and used for innocent pastimes. The presumption can be rebutted if from the prosecution evidence itself it is apparent that there was a reasonable probability of the playing cards not being kept or used as means of gaining or for the profit or gain of the occupier of the house. In the present case, the appellant could not successfully rebut the presumption. The resistance to the entry of the Sub-Inspector and the attempt to burn, destroy and conceal the playing cards fortified the presumption. The explanation that the appellant had invited friends and relatives on the occasion of his son's betrothal was not convincing. We do not find any compelling reason for interfering with the findings of fact by the High Court in this appeal under Article 136 of the Constitution.
7. No prejudice was caused to the appellant by the production of the notification dated January 22, 1955 for the first time at the appellate stage. His contention in the trial court was that such a notification was not sufficient for raising the presumption under Section 7. This argument was not tenable. He had ample opportunity for rebutting the presumption arising under Section 7. Nor did he ask the High Court to give him any further opportunity for this purpose. Counsel sought to argue that the search warrant was invalid as it did not ex facie set out the authority under which it was issued. The point was not taken either in the High Court or in the special leave petition. We therefore indicated that we will not allow this point to be raised. The High Court rightly convicted the appellant under Section 4 of the Act.
8. In the result, the appeal is dismissed.
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