1. The revision petitioners (accused 1 and 4) with three others were tried before the sub magistrate, Pathanamthitta for offences under the kerala gaming act (act 20 of 1960). They were all convicted under
s. 7 of the act and sentenced to pay a fine of rs. 50/ - or in default to undergo one week's simple imprisonment. One of them, Accused 2, In whose house the gaming took place was also convicted under
s. 8 of the act and given another fine of rs. 50/ - or in default one week's imprisonment. Their appeal to the sub divisional magistrate, Adoor was unsuccessful and hence this revision.
2. The prosecution case is that at about 5 - 30 p. M. On 13 - 10 - 1962 the sub inspector of pathanamthitta (pw. 1] on receiving information that the accused were playing cards for game on the verandah of accused 2's house raided the place with a police party. On seeing the police accused 4 and 5 ran away from the place. The others who stayed behind were arrested on the spot and playing cards and currency notes totalling rs. 27/ - were recovered. All the accused denied the charge.
3. Of the four witnesses cited by the prosecution pw. 1 the sub - inspector of police who raided the house and pw. 2 an attestor to the mahazar gave evidence in support of the prosecution case while pw. 3 another attestor admitted that he signed the mahazar only at the police station and pw. 4 was given up. Both pws. 1 and 2 were believed by the trial court. The evidence of pw. 2 was rejected by the appellate court for proper reasons and the conviction now stands solely on the evidence of the sub inspector supported by the presumption under s. 6 of the gaming act.
4. The learned counsel for the appellants contends that a conviction cannot be based on the uncorroborated testimony of the sub - inspector and that the presumption under s. 6 is not available in this case as the conditions necessary for bringing that section into operation have not been complied with here.
5. S. 6 of the kerala gaming act reads thus:
"any cards, Dice, Gaming tables, Clothes, Boards or other instruments of gaming found in any place entered or searched under s. 5, Or on any person found therein, Shall be evidence, Until the contrary is proved, That such place is used as a common gaming house and that the persons found therein were present for the purpose of gaming although no play was actually seen by the magistrate or police officer, Or any of his assistants."
the wording of this section is similar to that of the corresponding section in the gaming act in force in the other states and precedents are almost unanimous that this provision with its wide implications is to be strictly construed. In other words the presumption under s. 6 is available only if the search has been made strictly under the provisions of s. 5. The relevant portions of s. 5 are:
5. If a magistrate or any police officer not below the rank of a sub inspector of police upon credible information and after such inquiry as he may think necessary, Has reason to believe that any place is used as a common gaming house, He may, (a) after recording his reasons for such belief, Either himself enter, Or by his warrant. "
it will be seen that a search under s. 5 must satisfy certain conditions viz., Cl) the officer undertaking the search or issuing a warrant for the search must be of the specified rank, (2) the officer's belief that a certain place is used as a common gaming house must be based on credible information and enquiry and (3) the officer must record the reasons for such belief. Admittedly there is no such record in this case, Nor is there any explanation why such a record was not made. Indeed pw. 1 seems to have been entirely unaware of the necessity of such a procedure. It may be pointed out that the rule enjoining the officer conducting or authorising the search to make a record of his reasons is not to be found in the gaming acts in force in most of the other states. This indicates that our legislature purposely added this provision to minimise the possibility of misuse of the wide powers of entry, Search and seizure given under the act which might considerably result in the harassment of respectable householders. Such salutary provisions clearly do not merit total disregard. There is also no evidence in this case that any information credible or otherwise was received by pw. 1 to indicate that the house of accused 2 was being used as a common gaming house. Pw. 1 states that the information he received was that a game of 'pannymalath' a type of card - game was going on in the house of accused 2. Nor does he make it clear that this particular type of game unlike other card - games can only be played for gain and not pleasure. Though his action in rushing off to search the place immediately on receiving the information seems to indicate that he suspected gambling. This is not the same thing as saying pw. 1 received credible information that accused 2's house was being used as a common gaming house. It is therefore clear that the search conducted by pw. 1 has not satisfied the conditions laid down in s. 5 with the result that the presumption under s. 6 is not available in this case.
6. If the presumption goes, Then we are left with the uncorroborated testimony of pw. 1. True there is no legal bar to basing the conviction on the uncorroborated testimony of the officer who conducted the search if it is found entirely reliable but it seems to me that this is not a case in which it could be safely done. Apart from the fact that every independent witness had been disbelieved, Given up or had failed to support the prosecution thereby reducing considerably the value of pw. 1's testimony his evidence has also to some, Extent been misread by the lower courts. Pw. 1 had stated that while three of the accused were at the place of occurrence two others i. E., Accused 1 and 4 were seen running away. Though there has been some attempt by pw. 1 to make out that he saw all the accused actually playing the game his admission that "three persons were there and two persons ran away" indicates that he had not seen the persons who escaped actually engaged in the game. Even if the evidence of pw. 1 is accepted it is doubtful whether it goes to establish that the place is a common gaming house. He clearly admits that the only information he had was that the accused were playing cards for money on that day, And that he does not know whether this had taken place on any prior or subsequent occasion. Moreover it is rather strange that a person conducing a common gaming house would have preferred to do it in the open verandah to the exclusion of any of the inner rooms of his house.
7. The conviction is therefore unsustainable and has to be vacated. The conviction and sentence are therefore set aside and the revision petition is allowed. The fine if levied will be refunded to the accused.
allowed.