SINDW LOHANA CHAITHRAM

THE STATE OF GUJARAT March 31, 1967

[R. S. BACHAWAT AND J. M. SHBLAT, JJ.]

Bombay Prevemio1< of Gambling Act, 1887, s. 6(1) (i) and s, 7.- Auihority lo Deputy Superintendent of Police to issue search warrant to

sub-inspector-Notification conferring such authority whether must men- 1io11 Deputy Superintendent by >iume-Presumption under s. 7 when nrises,

Under s. 6(l)(i) of the Bombay Prevention of Gambling Act, 1887, a search warrant can be issued by a Deputy Superintendent of Police especially empowered in this behalf. By a notification dated January 22,

1955 the Saurashtra Government empowered specially certain AsSistant Superintendents and Deputy Superintendents of Police Porbandar Divi sion, Porbandar, to authorise by issue of special warrants in each case a police officer not below the rank of sub-inspector of police to do tibe various things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house room or place was suspected as being used as a common gaming house. The appellant's house was raided by a sub-inspector of police and on the basis of incriminating evidence the appellant and six others were charged under ss. 4 and 6 of the Act. At the trial the accused contended that Shri Pandya the Deputy Superintendent of Porbandar who issued the search warrant was not authorised to do so and accepting their plea the magis trate acquired them.

The High Court however took the opposite view and convicted the accused.

The appellant came to this Court by special leave.

HELD : (i) When a power is conferred on a person by name or by virtue of his office the individual designated by name or as the holder of the office for the time being is empowered specially.

Judged by this test the notification dated January 22, 1955 specially empowered Shri Panclya holder of the office of the Deputy Superintendent of Police, Porbandar to issue the search warrant under s. 6.

[353F-G]

Emperor v. Udlto and Ors., A.J.R. 1943 Sind. 107, E111peror v ..

Sav/aram Kaslii1uirh Joshi, 49 B.L.R, 798, Aluga Pillai v. E111peror, A.I.R. 1924 Mad. 256, Mahomad Kasi111 & Am•. v. Emperor, A.l.R. 1915 Mad. 1159, State of Mysore v. Kashambi, ( 1963) 2 Cr. L.J. 226, State v. illdlwhir Clietri, A.J.R. 1953 Assam 35, K. N. VijayO/l v. State,

J.L.R. 1953 Trav. Cochin 514 and Po/ubha Vajub/la & Anr. v. Tapu Ruda, A.J.k. 1956 Saurashtra 73, referred to.

(ii) The seizure of instruments of gaming in the appellant's house under s. 6 raises a presumption under s. 7 that the hoU&e was used as a common gaming house and the persons found thereia '"''ere then present for the purpose of gaming.

In applying this artificial presumption the court should act with circumspection. Playing cards can be kept and used for innocent pn-; time.

The presun1ption can he rebutted if from the prosecution evidence itself it is apparent tho.t there was a reasonable probability of the playing cards not being kept or used as means of gaming or for profit or gain of the occupier ot t.he house.

In the present case the appellant could not successfully rebut the presumption.

[354E-HJ

362 SUP&BMB COURT Rl!PORT5 [1967] 3 s.c.R.

No prejudice had been caused to the appellant by the production of the notification dated January 22, 1955 for the first time at the appellate 1taae

[3SSAJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 13 of 1964.

Appeal by special leave from the judgment and order dated August 16, 1963 of the Gujarat High Court in Criminal Appeal No. 154 of 1962.

Daniel A. Latifi and K. K. Sinha, for the appellant.

Hans Raj Khanna and R. N. Sachthey for R. H. Dhebar, for the respondent.

The Judgment of the Court was delivered by Bachawat, J. The appellant and six other persons were charged under ss. 4 and 5 of the Bombay Prevention of Gambling Act

1887. The sub-inspector of police Shri Anjaria received information that the appellant was keeping a common gaming house. He obtained a special search warrant from the Deputy Superintendent of Police, Porbandar, Shri S. M. Pandya, and raided the appellant's house in Bantwa on June 4, 1961 at 1 p.m. The raiding party found the door leading to the upper floor closed. The inmates pressed against the door from the inside and did not open it until a blacksmith broke open the latch. Shri Anjaria seized torn and burnt pieces of playing cards lying on the floor of the central room, two packs of cards from a wall cabinet, some burnt cards lying on the floor and in the folds of a bed in the drawing room, four jokers and three packs of cards from trunks in the kitchen, some cash, burnt cigarette ends, bidis and matches and empty cigarette cases.

All the accused were found in the upper f!o8r.

The appellant as the occupant of the house was charged under s. 4 of the Act and the other six accused were charged under s. 5 of the Act.

The learned magistrate refused to raise a presumption under s. 7 of the Act on the ground that Shri Pandya was not specially empowered by name to issue a search warrant. He acquitted all the accused.

On appeal, the High Court held that Shri Pandya as the deputy superintendent of police, Porbandar was specially empowered to issue the search warrant and the prosecution was entitled to the benefit of the presumption under s. 7. The High Court convicted the appellant of the offence under s. 4 of the Act and sentenced him to simple imprisonment for one month. The High Court convicted the other six accused under s. 5 of the Act and sentenced each of them to pay a fine of Rs. 200, in default simple imprisonment for one month. The present appeal was filed by the appellant by special leave.

A search warrant under s. 6(1)(i) of the AGt can be issued by a "Deputy Superintendent of Police especially empowered by the

,._ D

State Government in this behalf'. By a notification dated J anu ary 22, 1955, the Saurashtra government empowered specially cer tain assistant superintendents and deputy superintendents of police including the deputy superintendent of police, Porbandar Division.

Porbandar, to authorise by issue of special warrants in each case a police officer not below the rank of a sub-inspector of police to do the various things necessary in order to raid a house where the police officer suspected gaming to be carried on and which house, room or place was suspected as being used as a common gaming house. The magistrate relying upon Emperor v.

Udho and others(1 ), held that under s. 6, the officer must be specially empowered by name. The High Court relying on Emperor v.

Savlaram Kashinath Joshi,(') held that an officer may be specially empowered under s. 6 either by name OD in virtue of his office.

It is because of the conflict of opinion between the Sind and the Bombay decisions that special leave was granted in this case.

Section 15 of the Bombay General Clauses Act 1904 shows that a person may be appointed to execute any function either by name or by virtue of office. A person may therefore be empowered by name or by virtue of his office of deputy superintendent of police to issue a special search warrant.

Sec. 6 of the Bombay Prevention of Gambling Act requires that the deputy superintendent of police must be "specially empowered" to issue the warrant.

In Emperor v. Udho and others( 1), the expression "specially empowered" was interpreted to mean specially empowered by name and not by virtue of his office, and an authorization of "the deputy superintendent of police, Rohri" was said to be insufficient for the purposes of s. 6. This decision does not lay down the correct test.

A person may be specially empowered not only by name but also by virtue of his office.· In Emperor v. Savlaram Kashinath Joshi( 2 ) it was rightly held that a notification authorizing the deputy superintendent of police of the Poona city to issue a search warrant under s. 6 specially empowered the holder of that office by virtue of his office to issue the warrant. We think that where power is conferred on a person by name or by virtue of his office, the individual designated by name or as the holder of the office for the time being is empowered specially. Judged by this test, the notification dated January 22, 1955, specially em powered Shri Pandya as the holder of the office of the deputy superintendent of police, Porbandar, to issue the search warrant under s. 6.

For the meaning of the expression "specially empowered" reference is often made to s. 39(1) of the Code of Criminal Procedure which provides "in conferring powers under this Code; the State

Government may by order, empower persons specially by name or

(I} A.l.R. 1943 Sind 107.

(2) 49 B.L.R. 798.

3S4

SUPREME COURT REPORTS

[1967] 3 S.C.R.

in virtue of their office or dasses of officials generally by their offi- A cial titles". In Aluga P{/la/ v. Emperor('), it was rightly held that an authorization of the second class magistrate of Thirumangalam to try certain cases was a special empowering of the person holding that office by virtue of his office within the meaning of s. 39(1).

On the question whether a notification empowering all magistrates of a certain class to try certain cases can be said to empower specially every magistrate of that class to try those cases, there is a conllict of opinion, see Mahomad Kasim and another v. Emperor('), State of-Mysore v. Kashambi( 8 ). On the further question whether a magistrate should be regarded as an office and not as an official for the purposes of s. 39 (l) of the Ccide of Criminal Procedure, there is a sharp conflict of opinion, see C State v. Judhabir Chetri('), K.

Vijayan v. State(') and Polubha Vajudha and Anr. v. Tapu Ruda(").

We do not express any opinion on those questions, as it is not the practice of this Court to express opinion on questions which do not arise for decision. For the purpose of this case, it is sufficient to hold that a notification conferring power on the deputy superintendent of police of Porbandar to issue a search warrant specially empowers the holder of that office by virtue of his office to issue the warrant.

We hold that Shri Pandya as the holder of the office of the: deputy superintendent of police, Porbandar was specially empowered under s .. 6 of the Bombay Prevention of Gambling Act by the notification of the Saurashtra government dated January 22, 1955.

It is conceded that the notification continued to be in force after the merger of Saurashtra with the State of Bombay. The seizure of instruments of gaming in the appellant's house entered under s. 6 raises a presumption under s. 7 that the house was used as a common gaming house and the persons found therein were then present for the purpose of gaming. In applying this artificial presumption the Court should act with circumspection. Playing cards may be kept and used for innocent pastimes. The presumption can be rebutted if from the prosecution evidence itself it is apparent that there was a reasonable probability of the playing cards not being kept or used as means of gaming or for the profit or gain of the occupier of the house.

In the present case, the appellant could not successfully rebut the presumption. The resistance to the entry of the sub-inspector and the attempt to burn, destroy and conceal the playing cards fortified the presumption. The explanation that the appellant had invited friends and relatives on the occasion of his son's betrothal was not convincing. We do not find any compelling reason for interfering with the findings of fact by the High Court in this appeal under Art. 136 of the Constitution.

(I) A.l.R. 1924 Mad, 256.

(2) A.LR. 1915 Mad. 1159.

(3) (1963] (2) Cr.L. J. 226.

(4) A.T.R. 1953 Assam 35.

~) [1953] I.L.R. Trav.-Co 514.

(6) A.1.R. 1956 Saurashtra 73.

No prejudice was caused to the appellant by the production of the notification dated January 22, 1955 for the first time at the appellate stage. His contention in the trial court was that such a notification was not sufficient for raising the preswnption under s. 7. This argument was not tenable. He had ample opportunity for rebutting the presumption arising under s. 7. Nor did be ask the High Court to give him any further opportunity for this purpose.

Counsel sought to argue that the search warrant was invalid as it did not ex-facie set out the authority under which it was issued.

The point was not taken either in the High Court or in the special leave petition. We therefore indicated that we will not allow this point to be raised. The High Court rightly convicted the appeDant under s. 4 of the Act.

In the result, the appeal is dismissed.

G.C.

Appeal dismissed.