Padhye, J.:— Opponents Nos. 1 to 5 along with 5 other persons were prosecuted for an offence under s. 5 of the Bombay Prevention of Gambling Act. Out of these 10 persons, Sudhakar was also prosecuted separately for an offence under s. 4 of the said Act.

2. The pleas of the accused were recorded by the learned Magistrate on August 2, 1965. The particulars which were read and explained to the accused were in these terms.

“Offence complained of—under sec. 5 P.G Act.

You all were found in common gaming house in Sudhakar Dhenge's rented house on 13-7-65 at 9 P.M”

3. Plea recorded for accused Nos. 2, 3, 5 and 8 is “I am guilty”. As regards accused No. 9 it is “I plead guilty”. On the basis of this admission of the guilt, the learned Magistrate has convicted accused Nos. 2, 3, 5, 8 and 9, namely, the present opponents Sharad, Mohammad Pasha, Shakil Akhtar, Habibuddin and Shrikrishna under s. 5 of the Bombay Prevention of Gambling Act and each of them is sentenced to pay a fine of Rs. 200 and in default rigorous imprisonment for 30 days. The five accused, who were convicted as aforesaid, felt themselves aggrieved by this order of conviction and hence filed a revision application before the Sessions Judge, Nagpur. The learned Sessions Judge found the conviction defective and illegal on three grounds. The first ground was that there were two cases pending in respect of the same incident. One was against the accused Sudhakar alone under s. 4 of the Bombay Prevention of Gambling Act and the second was against all the ten accused including Sudhakar for an offence under s. 5 of the Act. According to him, the necessary ingredient for holding the accused guilty in both the cases was to establish that Sudhakar was keeping a common gaming house, and unless this ingredient was proved, the accused could not be convicted. The learned Sessions Judge, also took the view that these two cases filed under ss. 4 and 5 of the Act had to be tried together and the common evidence was to be recorded in these two cases. The learned Sessions Judge, therefore, found that unless there was a finding that there was a common gaming house, it was not permissible to the learned Magistrate to convict some of them on admission and to acquit or convict others on evidence.

4. The second defect according to the learned Sessions Judge was that the particulars that were explained to the accused were not proper. The particulars explained were: “You all were found in common gaming house in Sudhakar Dhenge's rented house on 13-7-65 at 9 P.M” According to the learned Sessions Judge to be simply found in a common gaming house is not an offence and the particulars mentioned are particulars of something which does not amount to an offence. He, therefore, took the view that the want or omission in the particulars amounts to not explaining particulars of the offence to the accused and is fatal as the conviction is based on admission.

5. The third defect according to the learned Sessions Judge was that the plea has not been recorded by the learned Magistrate in the manner in which it should have been recorded under s. 243, Criminal Procedure Code. The plea recorded is “I am guilty”. According to the learned Sessions Judge, the plea should have been in the words of the accused as nearly as possible and what is recorded in fact by the learned Magistrate is his own inference or conclusion. The learned Sessions Judge, therefore, has made this reference recommending that the convictions and sentences of the five opponents should be quashed and that they be tried according to law.

6. Section 5 of the Bombay Prevention of Gambling Act holds a person guilty of an offence if he is found in any common gaming-house, gaming or present for the purpose of gaming. Then it is also stated in s. 5 that any person found in any common gaming house during any gaming therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming. In a case where a police officer enters any house, room or place under s. 6 of the Act, there is a presumption raised under s. 7 of the Act. That presumption is in two ways. First is, when any instrument of gaming has been seized in any house, room or place entered under s. 6 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 contrary is proved, that such house, room or place is used as a common gaming house and the second presumption is that 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. If the facts are proved for enabling the Court to raise the presumption under s. 7 of the Act, then it is for the accused to show that it was not a common gaming house and that he was not present there for the purpose of gaming.

7. For raising the presumption under s. 7 of the Bombay Prevention of Gambling Act, the entry in the house, room or place must have been in pursuance of a warrant under s. 6 of the Act and instrument of gaming must have been seized in the said house, room or place so entered or about the person of any one found therein. But if no instrument of gaming has been seized, but any other thing is seized, then the Court must be satisfied that the police officer who enters such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming and the seizure of such instrument or thing shall be evidence 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 police officer. The presumption under s. 7 of the Act, therefore, can only be raised where any instrument of gaming has been seized or where the police officer entering the house had reasonable grounds for suspecting that the thing so seized was an instrument of gaming. If no instrument of gaming or the other things reasonably suspected as instruments of gaming are seized, then no presumption under s. 7 can be raised. The particulars which have been put to the accused in this case show that no instrument of gaming or any other thing suspected to be an instrument of gaming have been seized. The question, therefore, of raising a presumption under s. 7 of the Act could not arise in this case. The admission, therefore, if any, of the accused that it was a common gaming house would not be sufficient to raise a presumption under s. 7 and the further presumption that even though no gaming was actually seen therein, the persons found therein were then present for the purpose of gaming.

8. Section 5 of the Act raises a different kind of presumption. Even though there might not be any instruments of gaining or any other things suspected to be instruments of gaming found in a house, room or place, it can still be a common gaming house if it is used as such. In that case, if it is proved by other evidence without inviting the presumption under s. 7 that a particular house, room or place is a common gaming house, then the presumption under s. 5 of the Act comes into effect. The presumption raised under s. 5 is that a person who is found in any common gaming house during any gaming therein shall be presumed to have been there for the purpose of gaming. In order, therefore, to raise a presumption under s. 5 that a person was present in the common gaming house for the purpose of gaming, it must be shown that gaming was going on in that place. Section 5 of the Act makes a person liable to be convicted if he is found in any gaming house gaming or present for the purpose of gaming. If he is not found gaming or present for the purpose of gaming, s. 5 of the Act cannot be resorted to and to hold a person present for the purpose of gaming, the presumption can be brought into use provided he is found in a common gaming house during a gaming.

9. In this case, the admission, if any, is that they were found in a common gaming house. This admission, by itself, does not raise a presumption that they were present there for the purpose of gaming. It has further to be shown that at the time when they were found in the common gaming house, gaming was going on. That has not been put to the accused. Merely, therefore, on the admission which is said to have been made by the accused in this case, the offence under s. 5 of the Bombay Prevention of Gambling Act cannot be brought home to the accused. A further ingredient, namely, that at that time gaming was going on has still to be established. This not having been done, the learned Magistrate was in error in straightway convicting the applicant-accused under s. 5 of the Act. Either it has to be established that the accused were found gaming in a common gaming house for the purpose of gaming or it has to be established that they were found in a common gaming house during gaming, in which case it would be open to the accused to show that they were not present there for the purpose of gaming. The learned Sessions Judge, therefore, was right in holding that the particulars of the offence which are explained to the accused were not complete and merely on the statement of the accused that they are guilty in reply to the particulars explained to them, they could not have been convicted under s. 5 of the Act.

10. As stated earlier, there were two cases filed against the ten accused, in one of which Sudhakar was alone accused of having maintained a common gaming house. In the other case all the ten accused including Sudhakar were charged for gaming or present for the purpose of gaming in the common gaming house maintained by Sudhakar. The other accused including Sudhakar have not admitted their guilt and have not also admitted that Sudhakar was maintaining a common gaming house. It is likely that the defence taken by the other accused including Sudhakar on the question that it was not a common gaming house might succeed, in which case, they might be acquitted. If that would be the case then in respect of the same incident and same offence the present applicants-accused would stand convicted, whereas the other accused sailing in the same boat, would be acquitted. The result would be incongruous. It is therefore, desirable, as observed by the learned Sessions Judge, that both these cases should be tried together and the present applicants-accused should not have been convicted until both these cases against all the accused have been decided. If it is ultimately found that Sudhakar was not maintaining a common gaming house and these persons were not either gaming or present there for the purpose of gaming, none of them would be liable to conviction. The order of the learned Magistrate therefore, convicting these applicants-accused on their plea of guilty would be prejudicial and must be set aside. The learned Sessions Judge has also rightly observed that the plea of the accused has not been properly recorded by the learned Magistrate. The different ingredients of the offence had to be put to the accused and their explanation ought to have been asked on each such part. If the presumption under s. 5 of the Act were to be raised, the accused had to be asked whether the place where they were found was a common gaming house. They should have been then asked as to whether they were gaming or were present there for the purpose of gaming or whether any gaming was going on at the place. On each of these matters, their explanation ought to have been taken and if they had admitted all these parts, then the question whether they should be convicted or not would have arisen. On the particulars as put to the applicants-accused, the offence is not brought home to the applicants and the conviction of the applicants on the basis of their pleading guilty was not proper.

11. In the result, I find that the order of the learned Magistrate convicting the applicants-accused for an offence under s. 5 of the Bombay Prevention of Gambling Act and sentencing them was illegal and the learned Sessions Judge was right in recommending that the conviction and sentences of the accused should be set aside.

12. I, therefore, accept the reference, quash the conviction of the five applicants-accused, set aside their sentences and direct that they be tried according to law.

13. Amounts of fines, if recovered, be refunded to the accused.

14. Reference accepted.