Broomfield, J.:—

The accused in this case was convicted of an offence under s. 12(a) of the Bombay Prevention of Gambling Act (Bom. IV of 1887). The conviction and sentence were set aside on appeal by the Sessions Judge and this is an appeal by Government against the acquittal.

The accused is a cotton broker working in Surat. He belongs to Bhadran, a village in Baroda territory. He has a house there and visits the place several times a month. When he was travelling by train from Surat to Anand, which is the station for Bhadran, he was arrested at Anand station by a Police Inspector who had received secret information that he was in possession of money and chits relating to wagering or betting on cotton futures. He was searched and in his pockets were found Rs. 1,698-4-0 and six chits of the description known as satta chits. On the strength of these chits, which were explained in Court by the Police Inspector and a witness acquainted with the business of speculating in cotton, both Courts have held it proved that the money in the accused's possession represented the winnings of certain persons in Bhadran who had been wagering on American futures and that the accused was on his way to Bhadran in order to distribute the money. These findings of fact have not been challenged in the appeal.

Section 12(a) is as follows:—

“A Police officer may apprehend and search without warrant—

(a) any person found gaming or reasonably suspected to be gaming in any public street, or thoroughfare, or in any place to which the public have or are permitted to have access or in any race-course.”

Clauses (b) and (c), with which we are not concerned (except in so far as they show the nature of the offences at which the section is aimed), refer to persons setting birds or animals to fight in any public place. Then the section goes on:—

“Any such person shall, on conviction, be punishable with fine, … or with imprisonment”.

The charge against the accused in this case was:—

“That you on or about the 31st day of January 1937 at Anand Station were reasonably suspected to be gaming at the Anand Railway Station platform and thereby committed an offence punishable under s. 12(a).”

The accused was convicted by the Magistrate of being reasonably suspected to be gaming at Anand Station. He was fined Rs. 500 and the money found on him was confiscated.

It would be a remarkable departure from the accepted principles of criminal justice if the mere fact of being reasonably suspected by a police officer were to be held sufficient to justify a conviction of a criminal offence. Owing to the interpolations made from time to time in the Act the law of gambling has no doubt assumed a form different in some respects from the intention of the original framers of the Act. But I cannot believe that the law has been changed to this extent. A man may be arrested on a reasonable suspicion of gaming in a public place but he can only be convicted of the offence at which the section is aimed, viz. actual gaming in public. The concluding portion of the section in my opinion supports that view. This runs as follows:—

“When anything has been found on or about any person and a Court is satisfied that the Police officer has reasonable grounds for suspecting that such thing was an instrument of gaming, such circumstances shall, until the contrary is proved be evidence, that such thing was an instrument of gaming and that the person on or about whom the thing was found was present for the purpose of gaming.”

It would seem to be unnecessary to inquire whether articles found are or are not in fact instruments of gaming if a reasonable suspicion is sufficient to justify a conviction. However this point is not really material as in effect the Magistrate found the accused guilty of gaming in a public place.

The real question is whether the act of the accused amounts to an offence under s. 12(a) as the act now stands. In s. 3, which is the defining section, it is stated that gaming includes wagering or betting. By the amending Act Bombay Act I of 1936 the following words were inserted in the definition:—

“The collection or soliciting of bets, receipt or distribution of winnings or prizes in money or otherwise in respect of wagering or betting or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution shall be deemed to be gaming.”

So that gaming now includes various ancillary and accessory acts, among others, the act done by the accused, viz. the carrying or conveying of the winnings of gaming for the purpose of distribution. But it is to be noted that gaming, is not an offence except as made punishable by certain other sections of the Act, viz. ss. 4 and 5 which deal with keeping common gaming houses and gaming therein and s. 12 which deals with gaming in public places. Therefore, it seems to me that when we are concerned with a particular form of gaming made punishable under the Act and the charge, as here, is based on one of the ancillary acts in the definition, some connection ought to be shown between that act and the particular form of gaming which is the subject of the charge. The distribution of the profits of gaming in a common gaming house is a part of the offence of keeping a common gaming house. But the distribution of the profits of some other kind of gaming cannot be part of that offence unless you prove the necessary ingredients of that offence and show for instance that the distribution of the money in question had something to do with the business of a common gaming house. The distribution of the profits of gaming in a public place is part of that offence and so is any act facilitating the same. But if the charge is gaming in a public place and the only act alleged is one which facilitates the distribution of profits of some other kind of gaming, the ancillary act cannot in my opinion be said to form part of the offence charged unless it is an overt act which itself amounts to gaming in public within the intendment of the section.

There is no evidence in this case that what may be called the actual or substantive gaming took place in a common gaming house or in a public place. The idea underlying the prosecution case appears to be that there is a common gaming house somewhere, probably in Surat, where an illegal business of gambling on cotton futures is carried on and that the money which the accused had in his possession represented winnings resulting from this illegal business. If the prosecution had been able to prove those facts, the accused would have been guilty of an offence under s. 4(c) of the Act, and if he has committed any offence at all I think that is the offence he has committed. But there is in fact no evidence. We do not know in the least how or where the actual gaming took place. It is possible, though perhaps not very probable, that it was not illegal gaming at all.

Obviously then it cannot be said that the money with the accused was the winnings of gaming in a public place and the prosecution does not even suggest that. Equally obviously the accused did no overt act which in itself amounted to gaming in public. He appeared to be an ordinary passenger. No one would have known that he had any connection with gaming if he had not been apprehended and searched. In fact it probably did not become publicly known at all as he was apparently searched in a private room. In these circumstances I am not prepared to hold that any offence under s. 12(a) has been committed.

To put my view in a nutshell I would say that, though the distribution of the winnings of gaming and any act facilitating the same is gaming, it is not gaming in a public place, unless (a) the winnings are the winnings of gaming in a public place, in which case the mischief aimed at has been committed somewhere, or (b) the distribution or ancillary act is itself public.

In Emperor v. Jusub Ally it was held that the mischief aimed at in s. 4 of the Act is a mischief clearly distinct from that aimed at in s. 12. “In the one case comparative privacy for profit, in the other the bad public example and accessibility to the public, would seem to constitute the gravamen of the offence.” “Section 12 aims at gambling in a public place or thoroughfare, ordinarily with no intervening obstruction to the public view, where there is voluntary publicity.” I think this has always been the law. Emperor v. Jusub Ally has been referred to apparently with approval, certainly with no expression of dissent, in later cases, e.g, Emperor v. Hussein(2) and Emperor v. Fakirbhai.(3) According to a well-known rule for the interpretation of statues when a provision of the law has been given a particular meaning by the Courts and it is re-enacted or left substantially unaltered after amendment, it may be assumed that the Legislature has accepted the view taken by the Court. Since Emperor v. Jusub Ally was decided s. 3 has been amended by the insertion of the words to which I have already referred and in other ways not material for our present purpose. In s. 12 the words in cl. (a) originally were “any person found playing for money or other valuable thing with cards, dice, counters or other instruments of gaming used in playing any game, not being a game of mere skill, in any public street, place or thoroughfare.” The words as now amended are as given in the beginning of this judgment. These amendments in my opinion have made no difference to the law so as to affect the principles laid down in Emperor v. Jusub Ally.

The accused cannot be convicted unless we hold that the Legislature has by these amendments created an entirely new form of illegal gaming; that it is now a crime to carry on one's person the winnings of any form of gambling with the object of distributing them if one uses any public conveyance or any public highway; and that it makes no difference at all whether the gaming itself was legal of illegal and whether the money be carried openly or in secret. The practical effect of this new of the law seems to me to be that a man may be punished, nominally for gaming in a public place, though he has actually done nothing in public, when the real case against him is that he is suspected of keeping a common gaming house or of assisting in conducting such a business, the Police not being able to prove that offence or not wanting the trouble of collecting the evidence. Moreover the suspect, it would appear, can be punished precisely as if the suspicion were proved fact. It is hardly necessary for me to say that I quite realise that if the intention of the Legislature to change the law in this way is clearly expressed, the Courts have no option but to give effect to that intention. But I can find nothing in the Act as amended which on a reasonable construction of its provisions requires one to hold that this was intended, and I am not prepared to accept the view put forward on behalf of Government that this is the meaning of the law.

I would, therefore, dismiss the appeal.

Beaumont, C.J:—I have had an opportunity of reading the judgment just delivered of my learned brother Broomfield and I agree with it. But I should like to add a few words in deference to the argument of the learned Government Pleader.

The accused in this case was admittedly arrested at Anand Station which is a place to which the public have access, and on being searched there was found in his possession a substantial sum of money which, it has been found, represented the proceeds of gaming, and which he was taking to another place for the purpose of distribution; and there were also found upon him certain chits which were instruments of gaming. In these circumstances he is charged under s. 12 of the Bombay Prevention of Gambling Act, 1887, with gaming in a public place, viz. Anand Station.

Now it is perfectly plain that according to the ordinary use of language he was not gaming in Anand Station. There is no evidence that anybody was gaming at Anand Station, or that anybody had ever gamed at Anand Station. But it is suggested that, reading the definition of “gaming” into the charging section, he was guilty of gaming at Anand Station. Section 12 provides that a Police-officer may apprehend any person found gaming or reasonably suspected to be gaming in any public street, or thoroughfare, or in any place to which the public have access or in any race-course. Then it is provided that any such person shall, on conviction, be punishable. I may observe in passing that I entirely agree with Mr. Justice Broomfield's view that the conviction must be of gaming, and not merely of being reasonably suspected to be gaming. Now it is perfectly plain that the accused does not fall within the words of this section taken by themselves because he was not gaming in a public place. But if is said, and rightly said, that we must read the section in conjunction with the definition of “gaining” contained in the Act. That definition contains the following words:—

“The collection or soliciting of bets, receipt or distribution of winnings or prizes in money or otherwise in respect of wagering or betting or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution shall be deemed to be ‘gaming’.”

The learned Government Pleader argues that reading the definition or the material parts of it into s. 12(a) you get this, that anyone who is doing in a public place any act intended to aid or facilitate betting or the other matters referred to in the definition, including the distribution of winnings, shall, on conviction, be punishable. It is to be noted that the definition says nothing about unlawful gaming but uses the words “wagering or betting”, so that on the construction suggested a person who does anything in a public place which is intended to facilitate betting is guilty of gaming in a public place, though the actual gaming which he intends to facilitate is lawful. For example, anyone who proceeds along a public thoroughfare to the race-course at Mahaluxmi with a race card, which is an instrument of gaming, in his pocket, and with money which he intends to employ in lawful betting is doing something in a public place which facilitates betting, and on the argument of the learned Government Pleader is liable to be convicted of gaming in a public place. In my opinion, it is quite impossible to attach such an extravagant meaning to the Act.

The learned Government Pleader says that we must take the language as we find it and construe it strictly. That is an argument which has been presented to me in one form or another in a good many cases. Of course, it is beyond question that Judges have to deal with the law as they find it, and must give effect to any enactment of the Legislature. The fact that a Judge thinks that a particular enactment is irrational or unfair is irrelevant provided the enactment is in such clear terms as to admit of no doubt as to its meaning. But I protest against the suggestion that a Judge, construing an Act of Parliament, is a mere automaton whose only duty is to give out what he considers to be the primary meaning of the language used. A Judge must always consider the effect of any construction which he is asked to put on an Act of Parliament, and if he comes to the conclusion that a particular construction leads to a result which he considers irrational or unfair, he is entitled, and indeed bound, to assume that the Legislature did not intend such a construction to be adopted, and to try to find some more rational meaning to which the words are sensible. In the present case the Legislature has not in so many words enacted that a person who in a public place does something which facilitates gaming is himself gaming in a public place. We are asked to extract that meaning by reading the definition into s. 12, and, in my opinion, we are not justified in doing so. I agree with the view of the definition which Mr. Justice Broomfield has expressed. I think that the words “intended to aid or facilitate” the various acts described must be read as ancillary to the general words of the definition. Before you can convict a man of aiding or facilitating an act, you must show that act has taken place and that it is an offence. If it be proved that gaming has taken place in a public place, then anyone who is shown to have aided or facilitated such gaming is guilty, although he has not himself taken part in the actual gaming. But in my opinion it is impossible to convict a person under this statute of aiding or facilitating an act when the act itself which he has aided or facilitated is not shown to be a criminal act.

In my judgment, therefore, the appeal should be dismissed.

Norman, J.:—When the case was first argued before us, I was inclined to the view that the appeal ought to succeed. Upon a literal construction of s. 12(a) read with the extended definition of “gaming” contained in the last five lines of the second paragraph of s. 3, there is no doubt that the accused is guilty of gaming in a public place. I did of course realize that it is prima facie unreasonable to make an ancillary act an offence when the main act is not an offence, but I was not convinced that was a sufficient ground for disregarding the literal meaning of the Act. It also occurred to me that the object of the amended definition might be either to allow a conviction for facilitating gaming when it was impossible to discover where the actual gaming took place, or to make facilitation an offence when the gaming itself took place outside British India. But until I beard the judgment of my lord the Chief Justice 1 had not quite realized the startling result that would be produced by adopting an absolutely literal construction of the words of the Act. I respectfully agree that such a construction should not be adopted unless the wording is so abundantly plain that no other construction is possible. The object of the Act is not to prevent all gaming but merely certain kinds of gaming, that is to say, gaming in a public place or gaming in a common gaming house. It is, therefore, perhaps, not unreasonable to understand the phrase “wagering or betting” in the last five lines of the second paragraph of s. 3 as wagering or betting which is illegal under the Act, of at any rate, would be illegal if the Act applied to the locality where the wagering or betting took place. In this view the distribution in British India of the winnings of gaming in a public place or a common gaming house taking place outside British India would fall within the mischief of s. 12(a).

I agree that the present appeal should be dismissed.

Appeal dismissed.

Y.V.D