1. In deciding the present application it is impossible to overlook the fact that the Hathras police have at least on two previous occasions unsuccessfully tried to implicate Babu Lal alias Tirkha, one of the applicants before me, of offences punishable under the Gambling Act, and that in one of those cases the evidence led by the prosecution was positively false. Babu Lal resides in the town of Hathras which has been described by the learned Sessions Judge in the course of his judgment in the present case as “a den of gambling.” This remark of the learned Judge may or may not be correct; but it is wholly irrelevant in the consideration of the question as to whether there was sufficient material on the record to justify the conviction of the applicants under the Gambling Act. No presumption against the accused can be made by the mere fact that residents of a particular locality are addicted to gambling; and in a case where it is manifest that police has on previous occasions made unsuccessful attempts to falsely implicate a man under the Gambling Act, the Court must before recording an order of conviction, be satisfied that there was evidence of unimpeachable character to support the conviction. In the case before me both the Magistrate and the Sessions Judge came to the conclusion that Babu Lal was proved to be guilty of offences punishable under Sections 3 and 4 of the Gambling Act, and 23 other persons who were jointly tried with Babu Lal were guilty under S. 4 of the Act. In examining the evidence in the case the Courts below, however did not take note of the fact that Babu Lal had been on two previous occasions prosecuted by the police for a similar offence, and acquitted. The order of acquittal in one of those cases was passed by this Court after the judgment of the Sessions Judge upholding the conviction recorded by the Magistrate, and the learned Judge, therefore was justified in proceeding on the assumption that Babu Lal had to his credit a previous conviction under the Gambling Act. This assumption does not hold good now. But for this fact and another fact to be presently mentioned I might have, in accordance with the practice of this Court, accepted the findings recorded by the Sessions Judge.

2. The observations contained in the judgment of Harris, J. in Cri. Rev. No. 169 of, 1935 (1), however make it imperative to examine the evidence in this case with a view to ascertain the correctness or otherwise of the findings recorded by the Courts below. While allowing the application of Babu Lal and setting aside his conviction under Sections 3 and 4 of the Gambling Act, the learned Judge observed as follows:

What is extremely significant is that this man has been twice challaned by police and on each occasion unsuccessfully. In short, he appears to be just the man whom the police would have liked to be convicted. I am driven to the conclusion that the desire to convict this man appears to have been greater than the desire to tell the truth, and that both the witnesses for the prosecution were guilty of perjury….

3. These observations of the learned Judge counsel, caution in accepting the evidence led by the police against Babu Lal in the present case as the previous case in which Babu Lal was acquitted by this Court is closely connected with the case giving rise to the present application. On 31st October 1934, the Hathras police obtained two warrants from the sub-divisional Magistrate under Section 5 of the Gambling Act to enter and search the house of Babu Lal. The simultaneous issue of two search warrants is a bit odd; but it is not a matter of much consequence in the present case. Armed by the warrants the station officer of Hathras first entered and searched the house of Babu Lal on 1st November 1934 and Babu Lal was in due course procured and convicted by the Magistrate id the Sessions Judge of Aligarh. Babu ??? was however as already stated, acquitted on revision by this Court. After the first raid one of the warrants still relined with the Hathras police and the me was utilised for a raid on Babu Lal's ??? on 7th November 1934 at 4 a.m was the Diwali night and gambling was the time admittedly going on in Babu Lal's house. The police recovered from ??? phar 16 cauris, one set of cards, a sum ??? about Rs. 41 in cash and from a tin ???) a sum of Rs. 191-11-3. A gold ??? one gold button set, and one gold ??? are also alleged to have been taken possession of by the police at the same ne. Babu Lal and 23 other persons were ??? and convicted by the Magistrate. All the accused were sentenced to ??? varying from Rs. 250 to Rs. 5. The ??? amount of the fine imposed by the magistrate on the accused was Rs. 1,045 ??? the judgment of the Magistrate ??? as follows:

Two thirds of the fine, when realised, will be the disposal of the Superintendent of police ??? distribution in reward to the police. The ??? found at phar and recovered from the ??? shall also go towards reward, while the instruments will be returned and all cash and ??? recovered from the person of the accused shall also be restored to them. The ??? of gaming will be destroyed. Before including I must bring to the notice of the aperintendent of Police the name of Babu Jagdamba Prasad prosecuting sub-inspector who as been of great help to me in the trial of this use.

4. The total amount that the Magistrate directed to be distributed as reward to be police officers comes to about Rs. 930. ??? say the least, in a case of the present description this seems to be a very ??? order to make. I can understand police officers being rewarded in cases of ??? gallantry or exhibition of marked ??? ability, but in a case like the resent the order for payment of a large um of Rs. 900 as reward to the police appears to me to be wholly uncalled for. All that the police did in the present case was to arrest certain persons who were gambling on Diwali night. It is a matter of common knowledge that people indulge a gambling on the occasion of the Diwali estival and no credit can be claimed by the police for having detected gambling in the particular night. Further I am wholly unable to endorse the certificate given by the trial Magistrate to Babu Jagdamba Prasad, prosecuting Sub-Inspector. The case was a simple case in which only three witnesses for the prosecution were examined. The story that they had to tell was confined within a narrow compass, and the record does not, exhibit skillful handling of the case by the prosecuting Sub-Inspector. But for the fact that the trial Magistrate brought the help given by the prosecuting Sub-Inspector to the notice of the Superintendent of Police, the prosecuting Sub-Inspector would not have had a share in the amount earmarked by the Magistrate for, reward to the police. It is needless to-pursue this matter further. Suffice it to say that the order for the distribution of reward to the police passed by the trial Magistrate in the present case betrays an undue anxiety on his part to put money in the pocket of the police, and this fact, robs his judgment of the value that would otherwise have been prepared to attach to it. The order, at any rate, points to the desirability of not accepting the findings of the Magistrate without, examining the evidence in the case. (After discussing the evidence the judgment proceeded.)

5. The learned Sessions Judge has, in upholding the conviction of the 24 accused, made reference to Section 6 of the Gambling Act. That section provides that when instruments of gaming are found in any house, room, etc., entered or searched in accordance with S. 5 of the Act, or about the person of any of those who are found, therein, it shall be evidence until the contrary is made to appear, that such, house, room, etc., is used as a common gambling house, and that the persons, found therein were there present for the purpose of gaming although no payment was actually seen by the officer conducting the search.

6. It is clear that the presumption provided for by S. 6 can arise only where search is made in strict compliance with the provisions of S. 5 of the Act; and if the search is not proved to have been duly made, no such presumption can be made. It follows that in order to entitle the prosecution to invoke to its aid the presumption under S. 6 of the Act, the prosecution must prove affirmatively that the search was in accordance with the provisions of S. 5 of the Act, and where this fact is not proved the conviction of the accused cannot be sustained merely on the strength of the presumption referred to in S. 6. Instruments of gaming like cards, can be found in any and every house, and the mere recovery of such articles can by no means lead to the presumption that a house is a “common gaming house.”

7. It is only when entry in the house is effected and search is made on receipt of “credible information” by the officers mentioned in S. 5 that a house, etc., is used as a “common gaming house” and instruments of gaming are on such search found in the house that the presumption referred to in S. 6 comes into play. In other words, unless there is something on the record to show that the officer who conducted the search or issued the warrant for search did so in pursuance of the belief that the house was used as a “common gaming house,” no presumption can, on the recovery of instruments of gaming from the house, be made, against the accused. In the present case there is no such evidence, and therefore, the conviction of the 24 persons cannot be sustained on the strength of any presumption against them. The result is that I am satisfied that all the 24 persons were wrongly convicted. Only 7 of the 24 persons have applied in revision to this Court; but having regard to the conclusion arrived at by me I must, in the exercise of my revisional jurisdiction, set aside the conviction of all the 24 persons. Accordingly I allow this application, set aside the conviction of all the 24 accused, including the applicants before me, and direct that the fine, if paid, be refunded to them.

S.R/R.K

8. Order accordingly.