KISHAN CHANDER versus STATE OF MADHYA PRADESH

HIDAYATULLAH, J .-This is an appeal by spe· cial leave against an order of the Madhya Pradesh High Court (Gwalior Bench), by which a criminal revision filed by the three appellants was dismissed. The three appellants with five others were tried for offences under s. 4 of "The United State of Gwalior, Indore and Malwa (Madhya Bharat), Gambling Act, Samvat 2006", (Madhya Bharat Act No. 51 of 19411) (Samvat 20-16). ,Krishnat:handra, the first appellant, was also tried under s. 3 of the Act. All the original accused except one were convicted under s. 4 of the Act and sentenced to one months' simple imprison· ment. Krishnachandra was convicted in addition under s. 3 of the Act and sentenced to one months' simple imprisonment. The sentences in Krishnachandra's case were ordered to run concurrently.

p. 767

All these persons appealed unsuccessfully to the Court of Session. The three appellants then filed a petition for revision' in the High Court. The High Court also issued a notice under s. 439 of the Code of Criminal Procedure to these appellants to show cause why the sentences passed on them should not be enhanced. The High Court by its order dated December 14, 1960, dismissed the revision petition filed by the appellants and in addition to the.sentence of imprisonment imposed a fine of Rs. 200 on each count or counts for which they were originally convi· cated. The Appellants asked for a certificate to app· eal to this Court but it was refused by the High Court. The appellants, however, obtained special leave from this Court and have filed the present appeal.

p. 767

Only one point has been agrued before us and it is that s. 6 of the Gambling Act is ultra vires the Constitution and is against the principles of natural justice and the fundamentals of criminal jurisprudence. A similar contention has also been raised abouts. 8 of the Act. The Madhya Bharat Act is almost a replica of the corresponding Indian statute. Though it diflt>rs slightly in its wording, the purport and intent is almost the same. There are three definitions in s. 2 of the Act which control the later provisions. The expression "gaming" is defined to include "wagering and betting" and the explanation attached to the definition provides :- "Any transaction by which a person in any capacity whatever employs another in any capacity whatever, or engages for another in any capacity whatever, to wager or bet with another person, and the collection or soliciting of bets, receipt or distribution of winnings or prizes in money or otherwise in rt>spect of wagering or betting or ~ny act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribu·

p. 768

tion, shall be deemed to be "gaming". "Gaming house" is defined to mean- "Any house, room, tent, enclosure, space vehicle, vessel or any place whatsover in which· gaming takes place or in which instruments of

p. 768

gaming are kept or used for gaming." The expression "instruments of gaming" includes- "anv article used or intended to be used as a subject or means of gaming, any document usccl or intended to be u~ed 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".

pp. 768–769

These definitions show that a gaming house· is a place in which gaming takes place or in which instruments of gaming are kept for me for gaming, that is, for wagering or betting etc. or for the purpose of facilitating wagering or betting etc. Two offences have been created by the Act affecting res· pectively the keeper of a gaming hou<e and persons found gaming or present for the purpose of gaming, , in a gaming house, Section 3 which creates the offence affecting the keeper of a gaming house · provides as follows :- "3. \\?hoever- ( a) opens, keeps or uses any house, room or

p. 769

place for the purpose of a gaming house; (b) being the owner or occupier of any such house, room or place knowingly or wilfully permits the same to be opened, occupied, kept or used by any other person

p. 769

for the purpose aforesaid; (c) has the care or management of, or in any manner assists in conducting the business of, any such house, room or place opened, occupied, kept or used for the purpose

p. 769

aforesaid; (d) advances or·lurnishes money for the purpose of gaming with persons frequenting any

p. 769

such house, room or place; shall on conviction be punishable with imprisonment which may extend to six months and with fine : "

p. 769

A proviso provides for enhanced prnalties for the first, second, third or subsequent offences.

p. 769

Section 4 which makes gaming in a gaming house an offence provides :

p. 770

"4. \Vhoever is found in any gaming' house, gaming or present for the purpose of gaming shall, on conviction, be punishable with imprisonmrnt, which may extend to six months

p. 770

and with fine." A special presumption is provided as follows:- "Any person found in any gaming house during any gaming therein shall be presumed, until the contrary is proved to have been there for the

p. 770

purpose of gaming." A proviso provides for enhanced penalties in the same way as in s. 3.

p. 770

Section fi gives powers to certain officers to enter or to authorise police officers (not below the rank of a sub.inspertor) to enter and search a gaming he-use but the power is exercisable only if tbe officer concerned "i< satisfied. upon credible information, and afcer such inquirv as he may think necessary, that there arc good grounds to believe that any house, room, tent, enclosure. spaci-, vehicle, vessel or place is used as a gaming house." Section 6 which is impugned in this appeal then provides as follows : - "6. When any instrument of gaming has been seized in any house, room, tent, enclosure, space, vehicle, vessel 'or pla::e entered or searched under the provisions of last preceding section, or about the person of any of those who are found therein and in the case of any other thing so seized, if the Court is satisfied that the. officer who entered or searched such house, room. tent, enclosure, space, vehicle, vessel, or place had reasonable .~ounds 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 made to appear that such house, tent, enclosure, space, vehicle, vessel or place is used as a "gaming house and that the persons found therein were then present for the purpose of gaming although no gaming was actually seen by the Magistrate or Police Officer."

pp. 770–771

Section 8 creates a special rule of evidence and it provides :- "8. It shall not be necessary, in order to convict any person of any offence against any of the provisions of sections 3 and 4 to prove that any person found gaming was playing for any money, wager or stake."

p. 771

It has been amply proved in the present case that on a search being made instruments of gaming were found in the house and a presumption under s. 6 was therefore drawn against the persons present there.

p. 771

The impugned sections are challenged under Articles 19 and 21 of the Constitution. The former Article is said to be voilated because the sections unreasonably impair the right of assembly and the right to hold and enjoy property. It is not contended that gambling in the form of betting or wagering or as explained in the explanation to "s. 2 (d) is not an evil from which society needs to be protected. What is complained of is the manner in which the offences of keeping a gaming house ard gaming in a g~ming house may be proved against the respective offenders. It is contended that this proof largely depends upon the suspicion of an officer and the discovery on search of innocent articles like playing cards and dice and that added to these unreasonable provisions, the burden of proof, which should always lie on the prosecution, is reversed and the alleged off~nder is. rrquir:d to dear himself of the alleged gmlt. It submitted that the sections are unconsti· tutional as they offend Articles 19 and 13 of the Constitution. It is further submitted that in these circumstances there is a breach of Article 21 as well.

pp. 771–772

!"he argument ba<ed on Article 21 need not be separately noticed because if the impugned provisions are found to be constitutional, the curtailment of liberty wo1, Id not be except according to the procedure established by law. So the only point to consider is whether the impugnei provisions of the Act are so unreasonable as to lose the protection of Clauses (3l. (4) and (5) of Article 19. The Act is a pre Constitution measure and it can only be declared void under Article t:J. The Act is not challenged on the ground that it was brynnd the competence of the Legislat•ire which pa!'.sed it or that it has ceased to be law otherwise than bv the alleged breach of Articles 19 and 21. Once it is conceded that gambling is an evil, and it is righth• so conceded here, the interests of public order, morality or the general public require that it be eradicated and the onlv qni-stion which survives is whether the law made to do this is unreasonable in its restrictions upon the guaranterd rights. In this connection what must be established by the appellants is that an object which is legitima•r in itsi-lf has been achieved in a manner which amounts to an unreasonable curtailment of the guaranteed liberties.

p. 772

In order to find out whether the impugned pr.wisions can be regarded as unreasonable in the srnse explained it is nccessarv to consider them in some rietail. We be.gin with the definitions. "Gaming" is dt'fined to include wagering and betting which arc th" commonest forms of gambling but the definition leaws room for inclusion in the term other forms which gambling might take. ·1 here is nothing in the definition to make it unreasonable or to offend against any of the guaranteed rights. Next comes the definition of "gaming house". A house becomes a gaming house if gaming takes place there or ins· truments of gaming are kept there or used for gaming. The definition is no doubt wide and there is not only a long list of places which come within the expression 'gaming house' but the term includes any place whatsoever which answers. the rest of the descrip"tion. But here again there is nothing which is unreasonable or which does not subserve the central purpose. "Instruments of gaming" are next defined to include articles used or intended to be used as a subject or means of gaming, also documents, registers, records, proceeds of gaming and prize money etc. The words "used or intended to be used as a subject or means of gaming" outline . the circumstances in which the possession of articles becomes incriminatory under the Act.

pp. 772–773

Having defined gambling, gaming house and instruments of gaming, the Act provides safeguards against victimisation of innocent persons by putting in certain checks when it proceeds to provide for the dete~tion and prosecution of offenders against the Act. The offences are the keeping of a gaming house (s. :l), gaming in a gaming house (s. 4) and gaming in places to which public have access (s. 12). We are not concerned with the last. Section 5 confers the powers to enter and authorise police to enter and search places believed to be gaming houses. This power is given to a District Magistrate, a sub-divisional magistrate or a police officer not below the rank of a sub-inspector. The officer must be satisfi~d, upon credible information and after such inquiry as he may think necessary that there are good grounds for belief that any place is used as a gaming house before he makes a search. On entry the officer is empowered to take the persons present there into custody and to search them and to se::rch the place and seize all things reasonably suspected to have ~e~n used for the purpose of gaming. Pausing here, It clear that the power is given to superior officers who are expected to act reasonably and after due satisfaction. But the matter does not end there. After the arrests and seizures have been made the officer who entered the place and seized the articles has to satisfy the Court that his suspicions were based on' reasonable grounds aJ:tc! it is only then that the burden is shifted to the accused to prove his innocence. Though the word used in s. 6 i, "suspecting" in actual proof this suspicion must be demonstrated to be reasonably based. The safeguards, thus, are-( a) the existence of credible information, (b) the seizure of articles suspected to be instruments of gaming which bear out the information on which actmn is taken, and (c) proof to the satisfaction of the Court that there are reasonable grounds for holding that the articles seized are instruments of gaming. Once the house is shown to the satisfaction of the Court to be a gaming house the law leaves any one found in it during any gaming, to explain his prcs~nce on pain of being presumed to be there for gammg.

pp. 773–774

Considering the fact that gambling is an evil and it is rampant, that gaming houses flourish as profitable business and that detection of gambling is extremely difficult, the law to root out gambling cannot but be in the public interest. Such a law must of necessity provide fo; special procedure but so long as it is not arbitrary and contains adequate safeguards it cannot be successfully assailed. In our opinion the Act with which we arc concerned contains sufficient safeguards to ensure that there is no danger to any one except to those who are proved io the satisfaction of the Court to keep a gaming house or who can be presumed unless the contra~y be proved to be there for the purpose of gaming. We are satisfied that the impvgned provisions are constitutional. The appeal fails and is dismissed.

pp. 774–775

Appeal dismissed. RAM BILAS SINGH & ORS.

p. 775

v.

p. 775

THE STATE OF BIHAR (S. J. K. SuBBA RAo, N. RAJAGOPALA

p. 775

and J. R. MuDHOLKAR, JJ.)

p. 775

Criminal Trial-Unlawful assembly-Acquittal of accused-Conviction of less than five.,-Legality of-Indian Penal Gode, s. 149.

p. 775

The facts alleged by the prosecution were these :

p. 775

The first appellant brought with him in a truck to the scene of the occurrence a mob of 40 to 50 persons including the other two appellants and four other persons who were acquitted by the trial court. The first appellant fired a shot from the gun which he was carrying which hit Laldeo Singh on the chest as a result of which he fell down. Thereupon none of the acquitted persons fired from his gun and the shot hit Laldeo Singh again. Thereupon another of the acquitted persons fired a shot at Laldeo Singh which killed him instantaneously. The first appellant fired two shots at one Deva Singh who was hit on his thigh. The other two appellants assaulted Deva Singh with lathis of the seven cted under 304 Part II read with s. 149 of the Indian Penal Code by the trial court. On appeal the High Court altered their conviction into one under s. 326 read with s. 149 of the Indian Penal Code .but maintained the convictions under s. 147 ands. 426 of the Indian Penal Code. It was contended before the Supreme Court that as there was no appeal before the High Court against the acquittal of the four acquitted persons who were alleged to have constituted the unlawful assembly along with the appellants there could be no finding that there was an unlawful assembly of which appellants were and therefore, were liable for the acts of other members

p. 775