Judgment Case ID: 2078

Judgment:
minal Appeal No . 167 of 1964. Appeal from the judgment and order November 4	 1963 of the Gujarat High Court in Criminal Appeal No. 734 of 1962. G. section Patwardhan	 R. N. Sachthey and B.R.G.K. Achar	 for the appellant. The respondent did not appear. 614 The Judgment of the Court was delivered by Ramaswami	 J. This appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda bad dated November 4	 1963 in Criminal Appeal No. 734 of 1962. The respondent was charged in the Court of the Judicial Magistrate First Class	 Bulsar under sections 4 and 5 of the Bombay Prevention of Gambling Act	 1887 (Bombay Act IV of 1887)	 hereinafter called the 'Act '. The case of the prosecution was that on January 31	 1962 at about 9 p.m. the respondent was found accepting bets on American futures. On being searched in the presence of panchas currency notes of Rs. 119/ and two slips on which Ameri can futures were recorded were found. The trying Magistrate	 however	 held that slips were not "instruments of gaming" within 	the meaning of section 7 of the Act. The Magistrate was also not satisfied that the police officer who carried out the search and .seized the articles had reasonable grounds to believe that the slips and other articles recovered from the respondent were instruments of gaming. The Magistrate held that the presumption under section 7 of the Act could not be raised. The respondent was	 therefore	 acquitted of the charge. Against the order of acquittal the State of Gujarat preferred an appeal to the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 734 of 1962. The appeal was dismissed by Raju	 J. on November 4	 1963. In support of this appeal Mr. Patwardhan submitted that the High Court was in error in holding that it is necessary to examine an expert to corroborate the evidence of the prosecuting Sub Inspector that the articles seized were "instruments of gaming". It was also contended by Counsel that the High Court was not right in taking the view that the evidence of the Police Inspector to whom the warrant was issued under section 6 of the Act required corroboration in each and every case. In our opinion	 both the contentions of Mr. Patwardhan are well founded and must be Section 3 of the Act defines the expression "instruments of gaming" as including any article used or intended to be used as a subject or means of gaming	 any document used or intended to be used as a register or record or evidence of any gaming	 the proceeds of any gaming	 and any winnings or prizes in money or 	otherwise distributed or intended to be distributed in respect of 	any gaming. Section 6 provides for entry and search by police officers in gaming houses. Section 6(1) states: "6. (1) It shall be lawful for a Police Officer (i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub Inspector and either empowered by general order in writing or 615 authorized in each case by special warrant issued by the Commissioner of Police	 and (ii) elsewhere not below the rank of a Sub Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf	 and (iii) without prejudice to the provision in clause (ii) above	 in such other area as the State Government may	 by notification in the Official Gazette	 specify in this behalf	 not below the rank of a Sub Inspector and empowered by general order in writing issued by the District Magistrate. (a) to enter	 with the assistance of such persons as may be found necessary	 by night or by day	 and by force	 if necessary	 any house	 room or place which he has reason to suspect is used as a common gaming house. (b) to search all parts of the house	 room	 or place which he shall have so entered	 when he shall have reason to suspect that any instuments of gaming are concealed therein	 and also the persons whom he shall find therein whether such persons are then actually gaming or not	 (c) to take into custody and bring before a Magistrate all such persons	 (d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming	 and which are found therein: Section 7 of the Act relates to presumptive proof of keeping or gaming in common gaming house. Section 7 provides as follows: "7. When any instrument of gaming has been seized in any house	 room or place entered under section 6 or about the person of anyone 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 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 616 by the Magistrate or the Police officer or by any person acting under the authority of either of them: There is nothing in the Act to suggest that in order to prove that the articles seized are "instruments of gaming" it is the duty of the prosecution to examine an expert in every case. It is open to the prosecution to prove that the articles seized are instruments of gaming by proper evidence and it is	 not necessary to examine an expert for the purpose in each and every case. It is also not proper to make a distinction between the evidence of an officer who makes a complaint under the proviso to section 6 of the Act and to whom a warrant is issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso. The question as to whether the evidence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso to section 6 of the Act to the Commissioner of Police or to the Magistrate. We do not	 however	 propose to interfere with the order of acquittal in this case	 because the offence is petty and the offence was committed several years back. We accordingly dismiss the appeal. Appeal dismissed.

Summary:
The respondent was charged under sections 4 and 5 of the Bombay Prevention of Gambling Act	 on the allegation that be was found accepting bets on American futures	 and on being searched currency notes and two slips	 on which American Futures wore recorded	 were found. The trial	 Magistrate acquitted the respondent	 which was confirmed	 on appeal	 by the High Court. In appeal to this Court the appellant State contended that it was not necessary to examine an expert to corroborate the evidence of the prosecuting sub Inspector that the articles seized were "instruments of gaming" and that the evidence of the Police Inspector to whom the warrant was issued under section 6 of the Act did not require corroboration	 in each and .very case. HELD : The contentions are well founded and must be accepted as correct. There is nothing in the Act to suggest that in order to prove that the articles seized are "instruments of gamine ' it is the duty of the prosecution to examine an expert in every case. It is open to the prosecution to prove that the articles seized are instruments of gamiag by proper evidence and it is not necessary to examine an expert for the purpose in each and every case. It is also not proper to make a distinction between the evidence of an officer who makes a complaint under the proviso to section 6 of the Act and to whom a warrant issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso. The question as to whether the evidence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction	 can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso to section 6 of the Act to the Com missioner of Police or to the Magistrate. [616 A C]