BHIMRAO TRIMBAKRAO INGLEversusSTATE OF MAHARASHTRA

                                                       I



                                                                             A


                BHIMRAO TRIMBAKRAO INGLE
                            v.
                  STATE OF MAHARASHTRA
                                                                             B
                          AUGUST 19, 1986

              [M.P. THAKKAR AND B.C. RAY, JJ.]

    Bombay Prevention of Gambling Act, 1887-Ss. 3(ii), 5 and 7-
'Common gaming house'-What is-Conviction for offence under s.
5-When arises.                                                               c

       The appellants were convicted under s. 5 of the Bombay Preven-
tion of Gambling Act 1887. Appellant no. 6 was also convicted under s.
4 of the Act. In the appeal, the Sessions Court on an appreciation of
evidence came to the conclusion that the prosecution had failed to           D
establish that appellant no. 6 was deriving any profit or gain by way of
charges for the use of the room of the office in which gaming was taking
place and that accordingly it was not a 'common gaming house' within
the meaning of s. 3(ii), and therefore the offence committed by appel-
lant no. 6 would not fall under s. 4. It, however, recorded a f'mding of
guilt against all the appellants for an offence under s. 5 seeking support   E
from s. 7, which provides for presumptive proof of keeping or gaming
in a common gaming house. This view was affirmed by the High Court.

      Allowing the appeal to this Court,

      HELD: 1. An offence under s. 5 can be committed only provided          F
the persons concerned were gaming or were present for the purpose of
gaming ina 'common gaming house'. l61SFJ

      2. What was held to be 'not' a 'Common Gaming House', having
regard to the fact that evidence adduced by the prosecution was con-
sidered unacceptable could not have been held to be a common gaming          G
house by recourse to the presumption under section 7. What is not a
'common gaming house' in fact in the light of evidence cannot become a
common gaming house by reason ofa presumption. [615C-D]
                                           •
      3. The Sessions Court was in error in convicting the appellants
for an offence under Section 5 which can be committed only provided          H

                                   613
    614                        SUPREME COURT REPORTS                     11986) 3 S.C.R.

A   the persons concerned were gaming or were present for the purpose of
    gaming in a 'common gaming house'. The High Court was in error in
    failing to appreciate the import of the said finding recorded by the
    Court on the basis of the appreciation of evidence. [615F-G}

        CRIMINAL          APPELLATE                    JURISDICTION             Criminal
B
    Appeal No. 28 of 1977

         From the Judgment and Order dated 16.12.1976 of the Bombay
    High Court in Criminal Rev. Appln. No. 79of1976.

            A.K. Sanghi for the Appellants.
c
            A.M. Khanwilkar and A.S. Bhasme for the Respondent.

            The Judgment of the Court was delivered by

           THAKKAR, J. Whether or not it was a 'common gaming house''
D   is the question. Not is the answer.

            The appellants were convicted for an offence under Section 5 of
      the Bombay Prevention of Gambling Act, 1887 (hereinafter called 'the
      Act') as it stood in 1972 for being found in a 'common gaming house'
      where they had assembled for the purpose of gaming. Appellant no. 6
E   . was also convicted for an offence under Section 4 of the Act, for using
      a room as a common gaming house. The Sessions Court exercising
      appellate jurisdiction came to the conclusion that the gaming was tak-
      ing place in an office of the (Agricultural) Soil Conservation Depart-
      ment and that the room in which the gaming was taking place was not a                   -....l
      'common gaming house' within the meaning of Section 3(ii)' of the
F     Act. On reaclting the conclusion that it was not a 'common gaming
      house', the Sessions Court came to the conclusion that the offence
      committed by Appellant No~ 6 would not fall under Section 4 of the
      Act.

             The Sessions Court, however, recorded a finding of guilt against
G
     1. As defined ~y section 3(ii) of the Act.·
     2. Section 3 (ii): "In this Act, 'common gaming house' means: 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 pe.t:sons owning, occupying,
        using or keeping such house, room or place by way of charge for the use of such
H         house, room or place or instruments or otherwise howsoever."
                        B.T. INGLE v. STATE OF MAH. [THAKKAR, J. [                          615

      the appellants including Appellant No. 6 for an offence under SectiQn                          A
      5 of ihe Act seeking support from Section 71 of the Act which provides
      for presumptive proof of keeping or gaming in a common gaming
      house.

             Even though on· an appreciatwn of evidence adduced by the
       prosecution the Sessions Court came to the conclusion thai the pro·                           B
    ·secution had failed to establish that Appellant No. 6 was deriving any
       profit or gain by way of charges for the use of the room in question and
    · that accordingly it was not a 'common gaming house', the Court
      strangely enough held that it was a common gaming house within the
      meaning of Section 3(ii) of the Act by reason of the presumption under
      Section 7 of the Act. What was held to be 'not' a 'Common Gaming                               c
      House', having regard to the fact that evidence adduced by the pro·
     .secution was considered unacceptable could not have been held to be a
      common gaming house by recourse to the presumption undi:r section
       7. The presumption is a rebuttable presumption which was not re·
      quired to be rebutted by the defence inasmuch as the proseuction
      evidence was discredited and rejected and the presumption stood re·                           D
      butted on that account. What is not a 'common gaming house' in fact in
      the light of evidence cannot become a common gaming hous~ by
      reason of a presumption under section 7. The reason is neither far to
      seek nor obsecure. What the prosecution is required to establish by
      recourse to the presumption is that the room is a 'common gaming
      house' as defined in the dictionary of Section 3(ii) that is to say that the                   E
      occupier is collecting charges for the use of the room. When evidence
      is adduced and the prosecution fails to establish that such charges are
      in fact collected, how can the Court hold in the face of its own finding
I . that such charges are collected, that even so it is a 'common gaming
~- house' because of the presumption? The Sessions Court was in error in
      convicting the appellants for an offence under Section 5 which can be                         F
      committed only provided the.persons concerned were gaming or were
      present for the purpose of gaming in a 'common gaming house'. The
      High Court was in error in failing to appreciate the import of the said

      1. Section 7: When any instruments of gaming has been seized in any house, r?om or
         plaCe entered under section 6 or about the person of any one found therein, and in        G
         the case of any other thing so seized if the court is satisfied that ~he Police Officer
         who entered such house, room or place had reasonable grounds for suspecting that
         th~ thi_ngs so·seized was an instrument of gaming, the seizure of such instrume~t or
         thi.ng shall be evidence, until the contrary is prov.ed, that such house, room or place
         i_s used ,as .a .common gaming-house and the persons found therein were then present
         for the .purpos,e of gaming, although no gaming was actually seen by th.e Magistrate
         or tb~ Police Officer or by any person _acting under the authority of either of th~m.     _f=J
     616                        SUPREME COURT REPORTS                   I 19861 3 S.C. R.
A    finding recorded by the Court on the basis of the appreciation of
     evidence that in fact it was not a 'common gaming house' as found by
     the Sessions Court, and confirmed by the High Court. None of the
     appellants could therefore be convicted for an offence under Section
     )I

B
           The appeal is, therefore, allowed. The order of conviction and
      sentence is set aside.



      A.P ..I.                                                          Appeal allowed.




    1. Section 5: "Whoever is found in any common gaming house gaming or present for the
                  purpose of gaming shall, on conviction, be punishable with imprisonment
                 which may extend to six months and with fine .... ''