N Criminal Appeal Nos
126 127 of 1972
From the Judgment and Order dt
21 4 72 of the Gujarat Court in Criminal Revision Appln
490 491 of 1971
section K Dholakia and R Ramachandran for the appellants
section P Nayar and M N Shroff for the respondents
The Judgment of the Court was delivered by KOSHAL J
By this judgment we shall dispose of Criminal Appeals Nos 126 and 127 of 1972 both of which have been instituted on certificates granted under Article 1341 c of the Constitution of India by the High Court of Gujarat against the judgment dated April 21 1972 of a Division Bench of that Court upholding the conviction of each of the appellants under section 4 or section 5 of the Bombay Prevention of Gambling Act 1887 hereinafter referred to as the Bombay Acc and a sentence of imprisonment coupled with fine
Appeal No 126 of 1972 has been filed by eight persons
Appellant No 1 has been convicted of an offence under section 4 of the Bombay Act for keeping a common gaming house while his seven co appellants were found guilty of an offence under section 5 of that Act
In Criminal Appeal No 127 of 1972 appellant No 1 is the same person who figures as appellant No 1 in the former appeal and the conviction recorded against him is one for an offence under section or in the alternative under section 5 of the Bombay Act
His two co appellants have earned a conviction under the section last mentioned
The two appeals have arisen from Criminal Revisions Nos
490 A and 491 of 1971 both of which were dismissed by the High Court through the impugned judgment
In Appeal No 126 of 1972 appellant No 1 was said to be keeping or using house No 1408 situate in Ward No 1 of Himatnagar town as a common gaming house and appellants Nos 2 and 3 were said to have been employed by him for carrying on in that house the business of betting on Worli Matka figures
On a search by the police appellants Nos 2 to 8 were found present in the house from which numerous betting slips and boards indicating the opening and closing figures of Worli Matka betting were recovered
A personal search of appellants Nos 2 and 3 yielded counterfoils of the said slips
The allegations against the three appellants in criminal appeal No 127 of 1972 were that all of them were found present for the purpose of gaming in the said house which was as already stated being rum by appellant No 1 as a common gaming house
The only contention raised on behalf of the appellants before the High Court was that the said house had not been proved to be a common gaming house within the meaning of the definition of that expression occurring in section 3 of the Bombay Act
That definition runs thus In this Act common gaming house means i in the case of gaming a on the market price of cotton opium or other commodity or on the digits of the number used is stating such price or b on the amount of variation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation or c on the market price of any stock or share or on the digits of the number used in stating such price or G d on the occurrence or non occurrence of rain or other natural event or e on the quantity of rainfall or on the digits of the number used in stating such quantity or f on the pictures digits or figures of one or more playing cards or other documents or objects bearing numbers or on the total of such digits 36 or figures or on the basis of the occurrence or non occurrence of any uncertain future event or on the result of any draw or on the basis of the sequence or any permutation or combination of such pictures digits figures numbers events or draws any house room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming ii in the case of any other form of gaming any house room or place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning occupying using or keeping such house room or place by way of charge for the use of such house room or place or instrument or other wise howsoever
 Clause i of the definition is obviously inapplicable to the cases in hand and the plea of the prosecution has throughout been that the house in question squarely falls within clause ii thereof
This plea was challenged before the High Court on behalf of the appellants with the contention that the house abovementioned had not been shown to be kept for use for the profit or gain of the person owning occupying    because according to their learned counsel the profit or gain mentioned in the definition must have a direct relation with the use of the premises or with the instruments of gaming and a mere expectation or probability of profit arising from gaming itself would not be sufficient to bring the place within the definition of a common gaming house
The High Court noted that there was a clear distinction between the language employed in the two clauses of the definition so that while the element of profit or gain of the person owning or occupying the premises in question was immaterial under clause i it was an essential requirement of clause ii which deals with forms of gaming not covered by sub clauses a to f of clause i
The High Court therefore analyses the provisions of clause ii and formed the opinion that the expression or otherwise howsoever occurring therein had the widest amplitude and did not take its colour from the immediately preceding portion of the clause which employs the words by way of charge for the use of such house room or place or instrument
Discussing the matter further the High Court was of the opinion that the requirement of the expression for the profit and gain of the person owning occupying  was that the purpose of occupying or using the premises must be such profit or gain as meant a probability 37 Or expectation of profit or gain and not necessarily a certainty of it A and that the expression would embrace even a case where the keeper of the premises expected to gain by the process of gaming itself
In coming to this conclusion the High Court relied upon two Division Bench judgments of the Bombay High Court reported in Emperor vs Dattatraya Shankar Paranjpe and another1 and Emperor vs Chimanlal SankalchandZ and rejected as untenable an opinion to the contrary expressed in some Allahabad cases and a single Bench decision of the Bombay High Court in State vs Vardilal Natuchand Criminal Appeal No 551 of 1964 decided on the 14th of January 1965
The argument raised before the High Court on behalf of the appellants has been reiterated before us by their learned counsel Shri section K Dholakia but on a consideration of the definition extracted above we cannot agree with him
It is common ground between the parties that the present case is not covered by clause i of the definition so that what has to be considered is the language of clause ii thereof
For the applicability of the clause last mentioned the following conditions have to be fulfilled D 1 Instruments of gaming must be kept or used in the premises in question
2 The keeping or using of the instruments aforesaid must be for the profit or gain of the person owning occupying using or keeping such premises
3 Such profit or gain may be by way of charge for the use of the premises or of the instruments or in any other manner whatsoever
We fully agree with the High Court that the expression or otherwise howsoever is of the widest amplitude and cannot be restricted F in its scope by the words immediately preceding it which lay down that the profit or gain may be by way of charge for the use of the premises
In this connection we may usefully quote from the judgment of Shah Acting CJ who delivered the judgment of the Division Bench in Emperor vs Dattatraya Shankar Paranjpe Supra
It is essential for the prosecution under this definition to establish that instruments of gaming were kept or used in he house room or place for profit or gain of the person owning occupying using or keeping the house room or place
It may be done by establishing that the person did so either by a charge for use of the instruments of gaming or of the house room or place or otherwise howsoever
The 1 25 Bombay Law Reporter 1089  AIR 1924 Bombay 184
2 47 Bombay Law Reporter 75  AIR 1945 Bombay 305
38 expression otherwise howsoever appears to be very com prehensive and does not suggest any limitation such as is contended on behalf of the accused                We have heard an interesting argument on the question as to how far the words justify the somewhat restricted meaning which has been put upon the definition by the learned Judge of the Allahabad High Court and after a careful consideration of the arguments urged on either side and with great respect to the learned Judges I have come to the conclusion that the words of the definition which we have to construe here would not have their full meaning if we were to accept the narrow construction
I do not think that on a proper construction of the definition the prosecution can be restricted for the purpose of proving that a particular house room or place is a common gaming house to the two alternatives mentioned in the case of Lachchi Ram vs Emperor 
It is sufficient if the house is one in which instruments of gaming are kept or used for the profit or gain of the person keeping or using such place ie where the person keeping or using the house knows that profit or gain 4 15 Will in all probability result from the use of the instruments of gaming
The profit or gain may not actually result from such use
But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments it would be sufficient in my opinion to bring the case within the scope of the definition
At the same time it is clear that the prosecution must establish that the purpose is profit or gain
This may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house room or place or in any other manner that may be possible under the circumstances of the case having regard to the nature of the game carried on in that house
 The opinion of Shah Acting CJ was noted with approval in Emperor vs Chimanlal Sankalchand supra the reasoning adopted in which may be reproduced with advantage Lachchi Ram s case was considered by a Division Bench of this Court in Emperor vs Dattatraya 1923 25 Bombay 1 Al
R 1922 All
61 39 Law Reporter 1089 and was dissented from
It was held that to constitute a common gaming house it was sufficient if it was one in which instruments of gaming were kept or used for the profit or gain of the person keeping or using such place ie where the person keeping or using the house knew that profit or gain would in all probability result from the use of the instruments of gaming
The profit or gain may not actually result from such use
But if profit or gain is the probable and expected result of the game itself and if that is the purpose of keeping or using the instruments it would be sufficient to bring the case within the scope of the definition
C It is argued by Mr Pochaji on behalf of the accused that even in that case it was observed that the prosecution must establish that the purpose was profit or gain and that that might be done either by showing that the owner was charging for the use of the instruments of gaming or for the use of the room or place or in any other manner  The words or in any other manner  which were used there instead of the words appearing at the end of the definition  or otherwise howsoever  cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem generis with what pre cedes those words and hence even the hope of making a profit out of the gambling itself is sufficient to satisfy the requirement of the definition of common gaming house
It may happen that the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making a profit although he may not necessarily make it every time
Such a hope is sufficient to make the house a common gaming house and the occupier liable for keeping such a house
 We fully agree with the interpretation of the definition of the term common gaming house occurring in section 3 of the Bombay Act as propounded in the two Bombay authorities cited above as also in the impugned judgment that interpretation being in conformity with the unambiguous language employed by the legislature
The opinion to the contrary expressed in Lachchi Ram s case supra and in other decisions is found to be incorrect
The learned counsel for the appellants concedes that if the interpretation placed on clause ii of the definition by the impugned judgment be upheld the conviction of the appellants in the two appeals 40 is well founded
However we may state that there is another good reason for up holding the conviction and that flows from the presumption which has to be raised under section 7 of the Bombay Act which states When any instrument of gaming has been seized in any house room of place entered under section 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 reason able grounds for suspecting that the thing so seized was an instrument of gaming the seizure of such instrument or thing shall be evidence until the contrary is proved 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 Magistrate or the Police Officer or by any person acting under the authority of either of them Provided that the aforesaid presumption shall be made notwithstanding any defect in the warrant or order in pursuance of which the house room or place was entered under section 6
if the Court considers the defect not to be a material one
 It is not disputed that instruments of gaming were seized from the premises in question in both the appeals
That circumstances according to the section shall be evidence until the contrary is proved that such house room or place is used as a comon gaming house and the persons found therein were present for the purpose of gaming although no gaming was actually seen   
The profit or gain mentioned in clause ii of the definition and also the other requirements of that clause are a matter of peremptory presumption which has to be raised by the court as soon as the seizure of instruments of gaming from the place in question is proved as is the case here
Admittedly there is no evidence in rebuttal of the presumption which must therefore be raised and which furnishes a good basis for the conviction of the appellants
In the result both the appeals fail and are dismissed
PBR Appeals dismissed


Summary:
The term common gaming house has been defined in section 3 of the Bombay Prevention of Gambling Act 1887
Under cl
i of the section a house or place in which any of six different types of gaming enumerated therein takes place or in which instruments of gaming are kept or used for such gaming would fall within the definition
Clause ii of that section states that in the case of any other form of gaming a any house room or place whatsoever in which any instruments of gaming are kept or used b for the profit or gain of the person owning occupying using or keeping such house etc c by way of charge for the use of such house room or instrument or otherwise howsover would be a common gaming house
Certain instruments of gaming were seized by the police from the premises of appellant No 1 in both the appeals
He was convicted for keeping a common gaming house while the other appellants were convicted of an offence under section 5 of the Act
On appeal rejecting the appellants  contention that a mere expectation or probability of profit arising from gaming without establishing a direct relation with the use of the premises or with instruments of gaming would not be sufficient to bring the place within the scope of the definition the High Court held that the purpose of occupying or using the premises must be such profit or gain as meant a probability or expectation of profit or gain and not necessarily a certainty of it
F The argument urged before the High Court was reiterated in appeal before this Court
Dismissing the appeals  HELD 1
The expression or otherwise howsoever is of the widest amplitude and cannot be restricted to the words immediately preceding it namely for profit or gain by way of charge for the use of the premises 37F 2
For proving that a particular house room or place was a common gaming house it would be sufficient if it was shown that the house was one in which instruments of gaming were kept or were used for the profit or gain of the person keeping or using such place that is where the person keeping or using the house knew that profit or gain would in all probability la result from the use of the instruments of gaming
Profit or gain may not actually result from such use
Even the hope of making a profit out of the 34 gambling would be sufficient to satisfy the definition
In given case the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making profit although he may not necessarily make it every time
Such a hope would be sufficient to make the house a common gaming house and the occupier liable for keeping such a house
At the same time the prosecution must establish that the purpose of keeping or using the instruments was profit or gain which may be done either by showing that the owner was charging for use of the instruments of gaming or for the use of the house room or place or in any other manner that may be possible having regard to the nature of the game carried 38E 39E F 3
The profit or gain and the other requirements mentioned in cl
ii of the definition are a matter of peremptory presumption which has to be raised by the court as soon as seizure of instruments of gaming from the place is proved
Section 7 which allows a presumption to be raised against the accused provides that seizure of instruments of gaming from the premises shall be evidence until the contrary was proved that they were used as a common gaming house and the persons found therein were present for the purpose of gaming although no gaming was actually seen
In the instant case there is no evidence in rebuttal of the presumption
40F Gl