Bhimrao Trimbakrao Ingle & Ors. Vs. The State of Maharashtra
EmailAppeal: Criminal Appeal No.28 of 1977.
Petitioner: Bhimrao Trimbakrao Ingle & Ors.
Respondent: The State of Maharashtra
Apeal: Criminal Appeal No.28 of 1977.
Judges: M.P. THAKKAR & B.C. RAY, JJ.
Date of Judgment: Aug 19, 1986
Head Note:
Bombay Prevention of Gambling Act, 1887, Sections 3(ii), 5 & 7 – Sessions Court came to the conclusion that the gaming was taking place in an office of the (Agricultural) Soil Conservation Department – Sessions Court found the room not to be a common gaming house within the meaning of Section 3 (ii) of the Act but the Sessions Court recorded a finding of guild against the appellant including appellant no. 6 for an offence under Section 5 of the Act seeking support from Section 7 of the Act which provides for presumptive proof of keeping or gaming in a common gaming house.
Held:
(i) What is not a ‘common gaming house’ in fact in the light of evidence cannot become a common gaming house by reason of presumption under Section 7. (Para 3)
(ii) 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, that even so it is a ‘common gaming house’ because of the presumption. (Para 3)
JUDGEMENT:
THAKKAR J.:
1. Whether or not it was a ‘common gaming house’*.1 is the question. Not is the answer.
2. 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 6 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 taking place in an office of the (Agricultural) Soil Conservation Department and that the room in which the gaming was taking place was not a ‘common gaming house’ within the meaning of Section 3(ii) 2 of the Act. On reaching the conclusion that it was not a ‘common gaming house’, the Sessions Court came to the conclusion that the offence committed by ap-pellant 6 would not fall under Section 4 of the Act. The Sessions Court, however, recorded a finding of guilt against the appell-ants including appellant 6 for an offence under Section 5 of the Act seeking support from Section 73 of the Act which provides for presumptive proof of keeping or gaming in a common gaming house.
3. Even though on an appreciation of evidence adduced by the prosecution the Sessions Court came to the conclusion that the prosecution had failed to establish that appellant 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 house’, having regard to the fact that evidence adduced by the prosecution was considered unacceptable could not have been held to be a common gaming house by recourse to the presumption under Section 7. The presumption is a rebuttable presumption which was not required to be rebutted by the defence inasmuch as the prosecution evidence was discredited and rejected and the presumption stood rebutted on that account. What is not a ‘common gaming house’ in fact in the light of evidence cannot become a common gaming house by reason of presumption under Section 7. The reason is neither far to seek nor obscure. What the prosecution is required to establish by recourse to the presumption is that the room is a ‘common gaming house’ as de-fined in the dictionary of Section 3(ii) that is to say that the 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, that even so it is a ‘common gaming house’ because of the presumption ? The Sessions Court was, therefore, in error in convicting the appellants for an offence under Section 5 which can be 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 fail-ing to appreciate the import of the 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 there-fore be convicted for an offence under Section 5 (Section 5: “Whoever is foundi n any common gaming house gaming or present for the purpose of gaming shall, on conviction, be punishable with imprisionment which may extent to six months and with fine….”)
4. The appeal is, therefore, allowed. The order of conviction and sentence is set aside.
Appeal Allowed.
1. Whether or not it was a ‘common gaming house’*.1 is the question. Not is the answer.
2. 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 6 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 taking place in an office of the (Agricultural) Soil Conservation Department and that the room in which the gaming was taking place was not a ‘common gaming house’ within the meaning of Section 3(ii) 2 of the Act. On reaching the conclusion that it was not a ‘common gaming house’, the Sessions Court came to the conclusion that the offence committed by ap-pellant 6 would not fall under Section 4 of the Act. The Sessions Court, however, recorded a finding of guilt against the appell-ants including appellant 6 for an offence under Section 5 of the Act seeking support from Section 73 of the Act which provides for presumptive proof of keeping or gaming in a common gaming house.
3. Even though on an appreciation of evidence adduced by the prosecution the Sessions Court came to the conclusion that the prosecution had failed to establish that appellant 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 house’, having regard to the fact that evidence adduced by the prosecution was considered unacceptable could not have been held to be a common gaming house by recourse to the presumption under Section 7. The presumption is a rebuttable presumption which was not required to be rebutted by the defence inasmuch as the prosecution evidence was discredited and rejected and the presumption stood rebutted on that account. What is not a ‘common gaming house’ in fact in the light of evidence cannot become a common gaming house by reason of presumption under Section 7. The reason is neither far to seek nor obscure. What the prosecution is required to establish by recourse to the presumption is that the room is a ‘common gaming house’ as de-fined in the dictionary of Section 3(ii) that is to say that the 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, that even so it is a ‘common gaming house’ because of the presumption ? The Sessions Court was, therefore, in error in convicting the appellants for an offence under Section 5 which can be 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 fail-ing to appreciate the import of the 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 there-fore be convicted for an offence under Section 5 (Section 5: “Whoever is foundi n any common gaming house gaming or present for the purpose of gaming shall, on conviction, be punishable with imprisionment which may extent to six months and with fine….”)
4. The appeal is, therefore, allowed. The order of conviction and sentence is set aside.
Appeal Allowed.
