LexThe public gambling act, 1867
Rajasthan · state statute
Open in Lexace · Ask the AI about this act1
THE RAJASTHAN
PUBLIC GAMBLING ORDINANCE, 1949
(ORDINANCE NO. XLVIII OF 1949)
(Published in the Rajasthan Gazette (Raj-Patra) No. 134, dated December 24, 1949)
CONTENTS
1. Short title and extent.
2. Defintions.
3. Penalty for owing or keeping or having charge of a gaming house.
4. Penalty for being found in gaming house.
5. Powers to enter and authorise police to enter and search.
6. Finding cards, etc. in suspected house to be evidence that such houses are common
gaming houses.
7. Penalty on persons arrested for giving false names and addresses.
8. On conviction for keeping a gaming house, insruments of gaming to be destroyed.
9. Proof of playing for stake unnecessary.
10. Magistrate may require any person apprehended to be sworn and give evidence.
11. Witnesses indemnified.
12. Ordinance not to apply to certain games.
13. Gaming and setting birds and animals to fight in public streets ; Destruction of
instruments of gaming found in public streets.
14. Offences by whom trible.
15. Penalty of subsequent offenc under section 4.
16. Portion of fine may be paid to informer.
17. Recovery and application fines.
18. (Omitted)
19. (Omitted)
_____________
2
THE RAJASTHAN
PUBLIC GAMBLING ORDINANCE, 1949
(ORDINANCE NO. XLVIII OF 1949)
[Promulgated by his Highness the Rajpramukn on the 14th day of December, 1949]
An Ordinance to provide for the punish ment of public gambling and the keeping of
common gaming houses in the State of Rajasthan.
Whereas it is expedient to make provision for the punishment of public gambling and
the keeping of common gaming houses in 1[the State of Rajasthan.]
NOW THEREFORE, in exercise of the powers conferred by paragraph (3) of Article
X of the Covenant, his Highness the RajPramukh is pleased to make and promulgate the
following Ordinance :-
1. Short title and extent.
(1) This Ordinaness may be called the Rajasthan Public Gambling Ordinance, 1949.
(2) Sections 13 and 17 of this Ordinance extend to the whole of the state of Rajasthan
and it shall be competent to the State Goverment whenever, it may think fit, to extend,
by notification in the official Ga zette all or any of the remaining sections of this
ordinance to any city town, suburb, railway, station house or local area within the
State of Rajasthan and in such notification to define for the purposes of this
ordinance, the limits of such city, town, suburd, station house or local area and from
time to time to alter the limits so defined.
From the date of any such extension, so much of any law or rule having the
force of law, which shall be in operation in the city, town, suburb, satation house or
local area to which such extension shall have been made, as shall be inconsitent with
or repugnant to any section so extended, shall cease to have effect therein.
NOTIFICATIONS
The Ordinance has been extended to various places by different notification as under :-
1. See Notfn. No. F.1(200) Police 1/50 dated 20 -07-1951. Pub. in R.G. Gaz. Exty.
Pt. I. dated 28-07-1951
2. Notfn. dated 17-12-1952, Pub. in R G.Gaz. Exty. Pt.I. dated 20 -12-1952 extended
to Delwara and Eklogji, District Udaipur,
3
3. The Ordinance extended to whole of the State of Rajasthan including the Abu,
Ajmer and Sunel ateas with effect from 01-09-1957, i.e. the date of enforcement
of Raj. Act No. 27 of 1957 ;
4. All the remaining sections of the Ordinance are extended to the areas of
Hanumangarh Junction, Hanumangrh Town, Pilibanga, Rawatsar, Padampur,
Vijai Nagar and Gajsingh pura vide Notfn.dated 21-09-1976. Pub. in R.G. Gaz, Pt.
IV-C, dated 21-09-1976.
5. All the remaining provisions of the Ordinance are extended to the following
places vide different notifications as under :-
(1) Vide Notfn. dated 17 -12-1952 Pub, in R.G.Gaz, Exty. Pt. I, dated 20 -12-
1952 P.880]
Town of Delwara and Eklingji District Udaipur.
(2) Vide Notfn. dated 09 -09-1958 pub. in R.G. Gaz. Pt. IV -C dated 25 -09-
1958, p.1007 to the following towns in Ajmer District, namely :-
1. Ajmer
2. Beawar
3. kekri
4. Bijainagar, and
5. Pushkar.
____________
(3) Vide Notfn. dated 07-02-1961, Pub. in R.G. Gaz. pt. IV-C, at page 20 to
the following towns in Alwar District, Namely :-
1. Rajgarh
2. Lachhmangarh
3. Govindgarh
4. Kathumar
5. Kherli
6. Thanaganj
7. Narainpur
8. Tehla
9. Pratapgarh
10. Agra (P.S. Pratapgarh)
11. Behror
12. Ramgarh
13. Tijara
4
14. Kishangarh
15. Khairthal
16. Tapukra
17. Kotkasim
18. Mundawar
_____________
(4) Vide Notfn. dated 25 -06-1962, Pub. in R.G. Gaz, pt. IV -C dated July 12,
1962 at P.I]
to the following towns in Jhunjhunu District, namely :-
1. Pilani (including Vidyabihar)
2. Khetri
3. Surajgarh
4. Udaipur
5. Mandawa
6. Bissau
7. Bagar
_____________
(5) Vide Notfn. dated 06 -06-1963, Pub. in R.G.Gaz. pt. IV -C dated 19 -09-1963
to the following villages in Ganganagar District. namely :-
1. Mirzawala
2. Mohanpura
3. Banwala
4. Matili Rathan
5. Saduwali
6. Katan
7. Hindumalkote
8. Orki
9. Pakki
10. Keri
11. Fatui
12. Koranwali
13. Sangatpur
14. (9H)
15. Kotha
5
16. Chunawada
17. Kalgarh
18. Ganeshgarh
19. Mahiyanwali
20. Tatarsar
21. Ladhuwla
22. Natawala
23. Sagarwala
24. Jodhewala
25. Panniwala
_____________
(6) Vide Norfn. dated 21 -09-1976, Pub. in R.G. Gaz. pt. IV -C dated 21 -09-
1976, p. 259]
to the areas meintioned below :-
1. Hanumangarh Junction
2. Hanumangarh Town
3. Pili Bangan
4. Rawatsar
5. Padampur
6. Vijay Nagar
7. Gajsinghpura
2. Definitions. – In this Ordinance, unless there is anything repugnant in the subject or
context, -
(1) [x x x]
(2) "Gaming" includes wagering or betting but does not include a lottery;
Explanation. – Any transaction by which a person in any capacity whatever employs
another in any capacity whatever or engages for another in any capacity whatever or
to wager or bet with another person shall be deemed to be "Gaming",
(3) "Instrument of gaming" includes any articale used as a subject or means or
appurtenance of or for the purpose of carrying on or facilitating gaming and any
document used as a register or recored or evidence of any gaming ; and
(4) "Common Gaming House" means –
(i) in the case of gaming –
6
(a) on the market price of cotton, opium or other commodity or on the
digits of the number used in stating such price, or
(b) on the amount of veriation in the market price of any such
commodity or on the di gits of the nu mber used in stating the
amount of such variation, or
(c) on the market price of any stock or shares or on the digits of the
number used in stating such price, or
(d) on the digits of papers or bales manipulated from within jars or
other receptacles, or
(e) on the occ urrence or-occurrence of rainfall or other natural event,
or
(f) on the quantity of rainfall or on the digits of the number used in
staing such quantity or any other sign or symbol denoting the
extent of such quantity, or
(g) on the extent of the occurrence of any other natural event, any
house, room, tent, enclosure, space, vehicle, vessel or any place
whatsoever in which such gaming takes place or in which
instruments of gaming are kept or used for such gaming, and
(ii) in the case of any other form of gaming any hous e, room, tent,
enclosure, space, vehicle, vessel or any place what soever in which any
instruments of gaming are kopt or used for the profit or gain of the
person owning, occupying, using or keeping any such instrument, or
such house, room, tent, enclosure , space, vehicle vessel or place
whatever by way of charge for the use of the same or otherwise
howsoever.
7
COMMENTARY
SYNOPSIS
1. Instruments of gaming.
2. Common Gaming house
3. Conditions for applicability of sub-clause (ii).
4. Club not a common gaming house-charge made by it considered.
1. Instruments of gaming.
An intialed currency note made over to the punter. He staked it on certain figures
and the note was later recovered from the stall of the accused. It was held, that the
initialed currency note was an article used as a means of gambling and came within the
defintion of an instrument of gambling within the meaning of S. 2(3) of the Gambling
Ordinance. [AIR 1932 Bom. 180 and 174] relied on. Chiman Lal V. The State 1957
RLW 544= AIR 1958 Raj. 335.
2. Common gaming house.
Common gaming house, meaning of- Once it is established that the place had been
searched under warrant obtained under section 5 of the ordinance the instruments of
gaming are found there, it will be presumed that such place is used as a common gaming
house and the persons found there wer e present therefore the purpose of gaming
although they may not have actually playing at the time the police officer reached there.
Gulab V. State 1962 355= RLW 355= ILR 1952 Raj. 740.
3. Conditions for applicability of sub -clause (ii) – [1] For the applicabi lity of sub-clause
(ii), the following conditions have got to be fulfilled –
(1) Instruments of gaming must be kept or used in the premises in question.
(2) The Keeping or using of the instruments aforesaid must be for the profit or gain of
the person owning, occupying, using or keeping such premises.
(3) Such profit or gain may be by way of charge for the use of the premises or the
instruments or in any other manner whatsoever.
[2] The expression "or otherwise howsoever" is of the widest amplitude and cannot be
restricted in its scope by the words immediately preceding it which lay down that the
profit or gain may be way of charge for the use of the premises. In this connection we
may usefully quote from the judgment of Shah, Acting C.J., who delivered the judgment
of the Division Bench. In Emperor V. Dattatraya Shankar Purajnpe [AIR 1924 Bom.
184]
8
"It is essential for the prosecution under this definition to establish that
instruments of gaming were kept or used in the house, room or place for the profit or
gain of the person owning, occupying, using or keeping the house, room or place. It may
be done by establishing that the person did so either by a charge for use of the
instruments of gaming or the house, room or place or otherwise howsoever, The
expression "other wise howsoever" appears to be very comprehensive, and does not
suggest any limitation, such as is contended on behalf of the accused."
[3] It cannot be said that on a proper construction of the definition the prosecution can be
restricted for the purpose o f proving that a particular house, room or place is a common
gaming house, to the two alternatives mentioned in the case of Lachchi Ram v. Emperor,
[AIR 1922 All. 61]. It is sufficient if the house is one in which instruments of gaming are
kept or used for the profit or gain of the person keeping or using such place, i.e. where
the person keeping or using the house knows that profit or gain will in all probability
result from the use of the instruments of gaming. The profit or gain may not actually
result from such use. But if profit or gain is the probable and expected result of the game
itself and if that is the propose of keeping or using the instruments, it would be
sufficient, in any opinion, to bring the case within the scope of the definition. At the
same time it is clear that the prosecution must establish that the purpose is profit or gain.
This maybe done either by showing that the owner was charging for use of the
instruments of gaming or for use of the house, room or place, or in any other manner that
may be possible under the circumstances of the case, having regard to the nature of the
game carried on in that house.
[4] The Opinion of Shah, Acting C.J. was noted with aproval in Emperor v. Chimanlal
Sankalchand [AIR 1945 Bom. 305] (supra), the r easoning adopted in which may be
reproduced with advantage.
"Lachchi Ram's" case was considered by a Division Bench of this Court in
Emperor v. Dattatraya, [(1923) 25 BLR 1089 = 1924 Bom. 184] and was dissented from.
It was hold that to constitute a common it was sufficient if is was one in which
instruments of gaming were kept or used for the profit or gain of the person keeping or
using such place, i.e., where the person keeping or using the house knew that profit or
gain would in all probability result from the use of the instruments of gaming. The profit
or gain may not actually result from such use. But if forfeit or gain is the probable and
expected result of the game itself and if that is the purpose of keeping or using the
instruments, it would be sufficient to bring the case within the scope of the definition.
9
"It is argued that even in that case it was observed that the prosecution must establish
that the purpose was profit or gain and that might be done either by showing that the
owner was charging for the use of the instruments of gaming or for the use o f the room
or place or in any other manner. The words" or in any other manner, (which were used
there instead of the words appearing at the definition or otherwise howsoever) cannot be
regarded as restricting the profit or gain of the owner or occupier of the house to profit or
gain in a manner ejusdem generis with what precedes those words. And hence even the
hope of making a profit out of the gambling itself is suff icient to satisfy the requir ement
of the definition of common gaming house. It may happen that the occupier of a house
may allow it to be used by the public for gambling and he h imself may take part in it in
the hope of making a profit, although he may not necessarily make it every time. Such a
hope is sufficient to make the house a common gami ng house and the occupier liable for
keeping such a house."
We fully agree with the interpretation of the definition of the term 'common gaming
house' occurring in Section 3 of the Bombay Act as propounded in the two Bombay
Authorities cited above, as also in the impugned judgment, that interpretation being in
conformity with the unambiguous language employed by the legislature. The opinion to
the contrary expre ssed in Lachchi Ram's case (Supra) and in other decisions is found to
be incorrect.
4. Club not a common gambling house-charge made by it considered. –
As regards the extra charge for playing cards we may say that clubs us ually make an
extra charge for anything they supply to their members because it is with the extra
payments that management of the club is carried on the other amenities are provided. It
is commonly known that accounts have to be kept, stocks have to be purc hased and
maintained for the use of the members and service is given. Money is thus collected and
there is expenditure for running of each section of the establishment.
Just as some fee is charged for the games of billiards, Ping -Pong, tennis, etc. an ex tra
charge for playing cards (unless it is extravagant ) would not show that the club was
making a profit or gain so as to render the club into a common gambling house.
Similarly, a late fee is generally charged from members who use the club premises
beyond the scheduled time. This is necessary, because the servants of the club who
attend on the members have to be paid extra remuneration by way of overtime and
expenditure on light and other amenities has to be incurred beyond the club hours. Such
a charge is usual in most of the clubs and we can take judicial notice of the fact.
10
This leaves over for consideration only the sitting fee as it is called. In this
connection, the account books of the club have been produced before us and they
show that fee 50 paisa is charged per person playing in the card room. This to our
opinion is not such a heavy charge in a Members Club as to be described as an
attempt to make a profit or gain for the club. Of course, if it had been proved that 5
points per game were char ged, that might have been considered as an illegal charge
sufficient to bring the club within the definition. As we have already pointed out, the
levy of that charge has not been proved. The other charge s which the club made do
not establish that this was a common gambling house, within the definition. State of
A. P. V. K. Satyanarayana, AIR 1968 SC 825 {828}.
3. Penalty for owing or keeping or having charge of a gaming . – Whoever being the
owner or occupier. or having the use, of any house, room, tent, encl osure, space,
vehicle or place, situate within the limits to which this Ordinance applies, opens ;
keeps or uses the same as a common gaming house ; and
whoever being the owner or occupier of any such house, room, tent, enclosure,
space, vehicle, vessel or place ; as aforesaid ; knowingly or willfully permits the same
to be opened occupied, used or kept by any other person as a common gaming house ;
and
whoever has the more of management of or in any manner assists in
conducting, the business of any house, room, tent, enclosure, space, vehicle, vessel or
place as aforesaid and opened, occupied, used or kept for the purpose aforesaid and
whoever advances or furnishes money fo r the purposes of gaming with
persons frequenting such house, room, tent, enclosure, space, vehicle, vessel or place,
shall be punished –
(a) for a first offence, with imprisonment which may extended to 1(six
months) or with fine which may extend to 2(five hundred rupees) or with
both.
(b) for a second offence, with imprisonment which may extend to 3(one year)
and, in the absence of special reasons to the contrary to be mentioned in
the judgment of the Court, shall not be less than 4(one month), either with
or without fine which may extend to one thousand rupees ; and
(c) for third or subsequent offence, with imprisonment which may extend to
5(one year) and in the absence of special reasons to the contrary to be
mentioned in the judgment of the Court, shall not be less than 6(six
months) together with fine which may extend to 7(two thousand rupees).
11
COMMENTARY
[1] The Rajasthan Public Gambling Ordinance embodies the law on the subject of
Gambling and if there was any law in force on that subject in the former State of Ajmer, that
must be deemed to have been repealed by section 7 of the Extension of Laws, 1957. T here is
no room to hold that Part of the was repealed and part remained in force. It does not requires
any notification. State of Rajasthan V. Narayan, 1962 RLW 208.
[2] Evidence and proof.
1 Subs. by Act 17 of 1982.
2 Subs. by Act 17 of 1982
3 Subs. by Act 17 of 1982
4 Subs. by Act 17 of 1982
5 Subs. by Act 17 of 1982
6 Subs. by Act 17 of 1982
7 Subs. by Act 17 of 1982
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 no t proper to make a distinction between the evidence of an officer who
makes a complaint and to whom a warrant is issued for search and the evidence of person to
whom a warrant is issued but who makes no such complaint. 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 un der
the Act to the Commissioner of police or to the Magistrate. State of Gujarat V. Jaganbhai
AIR 1966 SC 1633.
[3] Applicability of S. 247, Cr. PC -PSI. absent -Magistrate not competent to
record acquittal.
Neither there was any doubt nor there is any doubt about non -applicability of section
24 of the Code of Criminal Procedure in case of gambling where police files a report and
cognizance is taken in the police report.
The learned Magistrate adopted a shor tcut method of disposal of cases by recording
absence of complaint where there was no complainant as such and giving under importance
to absence of the Prosecuting Sub -Inspector which was wholly unimportant, so far as
acquittal or conviction is concerned.
12
The Judgment of the learned Magistrate, is set aside and case is sent back to the trial
court for proceeding according to law. The State of Raj. V. Prahlad and orsi, 1981 Cr. LR
Raj. 101.
[4] Accused K and M found present at time of search -Held, accused are guilty
u/s. 4-Accused K being Occupier of house is also guilty u/s. 3.
From the evidence of Badrisingh (PW -1), Saligo Ram (PW2) and Narpar Singh
(PW3) it is established, that both Kundanmal and Moti were found present in the house of
Kundan Mal at the time of search. Both of them are therefore guilty of the offense under
section 4 of the Ordinance. In respect of Badri Singh (PW1) and Narpat Singh (PW3) that he
was the occupier of the house from which the instruments of gaming were recovered vide
seizer Memo (Ex. P.1) Kundanlal is therefore, also guilty of the offence under section 3 of
Ordinance.The State o Rajasthan v. Shri Kundanmal and Anr. 1978 Cr. LR Raj. 692.
[5] Secs. 3 6 - Search warrant illegal – Presumption under section 6 cannot be
raised-Conviction on other good and undiscredited evidence-possible.
Where a presumption under sec. 6 of the Rajasthan Public Gambling Ordinance is not
available on account of the illegality of the search warrant a conviction can be maintained if
the other evidence of actual gaming and realization of commission etc. is in itself good and
undiscredited. Bajrang la v State 1956 BLW 29.
[6] Ss. 3 & 4 -Offences under -whether cognizable -provision of sec. 173, Cr. Pc
whether applicable.
Offences under sections 3 and 4 of th e Rajasthan Public Gambling Ordinance are not
cognizable and the provisions of section 173, Cr. PC do not apply to such cases and there is
no obligation in law on the prosecution to furnish copies of its documents to the accused.
[AIR 1941 Nag. 388], disse nted from, [AIR 1942 Sind. 1932 Bom. 610] relied on . State of
Rajasthan v. Tara Chand ILR{1957} 7 Raj. 976=1958 RLW 390=AIR 1958 Raj. 108
[7] Game of Video Games is a game of skill -play of such a game is exempted -No
cognizance can be taken -Action taken Quashed.- Referring to the observations made by
the supreme Court in various cases, the High Court said that the said video game is a game of
mere shill as distinguished from game of chance or game of chance and skill combined. In
the said Video games, there are computerised chips which is the soul source of the such video
games and on pressing the relevant button, the computerised chip so attached in the
respective video game machine is activated and the game starts and the players by his
sufficient knowledge and experience and by preactice can control the game on his own and
there is no interference outwardly whatsoever. The Video games located in the said Video
PArlour is nothing but for enterainment, and therefore saved by sec. 12 of the Ordinance.
Since the allegation in the complaint taken at their face value do not disclose any ingredient
13
of offence the complaint pending against the petitioner quashed. Tulsiram v. State of
Rajasthan, 2002 {3} WLN 55.
[8] Sentence.- Maximum sentence cannot exceed six months. The sentence should be
such which may not only be a lesson to an accused so that he may not repeat the offence but
should also give lesson to others. Sentence of one month reduced to 8 days. Devenderpal v
State of Rajasthan, 1999 WLC UC 458=1999 Cr LR 378[Raj.]
_______________
4. Penalty for being found in gaming house. – Whoever to be found in any such
house, room, tent, enclosure, space, vehicle, vessel or place, playing or gaming with cards,
dice counters money or other instruments of gaming or is found there present for the purpose
of gaming, whether playing for any money, wager, stake or otherwise, shall be liable to a fine
not exceeding (five hundred rupees) or to imprisonment for any term not exceeding (six
months) ;
and any person found in any common gaming house during any gaming or playing
therein, shall be presumed, until the contrary be proved to have been therefore the purpose of
gaming.
COMMENTARY
[1] The section 173 of the Code of Criminal Procedure does not apply to the offences
under the ordinance as these offences are not cognizable under section 3 and 4 of the
ordinance , State of Rajasthan v Tara Chand, 1958 RLW 390=AIR 1958 Rj. 108=ILR
1957{7} Raj. 976.
[2] Found' meaning of – The person was seen coming out of the premises and also
seen trying to escape but was arrested is found within the premises. It does not mean that the
person accused should be physically present there when the search was made. Gulab v State ,
1962 RLW 355=ILR 1962 Raj. 740
[3] Common gaming house, meaning of – Once it established that the place had
been searched under warrant obtained under section 5 of the ordinance and the instruments of
gaming are found there, it will be presumed that such place is us ed as a common gaming
house and the persons found there were present there for the purpose of gaming although they
may not have actually plaving at the time the police officer reached there. Gulab v. State,
1962 RLW 355=ILR 1962 Raj. 740.
14
[4] The presumpti on under section 6 would not be available in the case as there
was no allegation that the place was used as a common gaming house, Mohan Lal v
State, 1959 Raj. 1017.
[5] A case under an analogous provision, namely section 5 of Bombay Prevention
of Gambling Act. (4 of 1887) - Applicability-Raising of presumption -Admission of
accused.
Section 5 of the Bombay Prevention of Gambling Act holds a person guilty of an
offence if he is found in any common gaming -house, gaming cr present for the purpose of
gaming. Then it is also stated in section 5 that any person found in any common gaming
house during any gaming therein shall be presumed until the contrary is proved, to have been
there for the purpose of gaming. In a case where a police officer enters any ho use room or
place under section 6 of the Act, there is a presumption raised under section 7 of the Act.
That presumption is in two ways. First is, when any instrument of gaming, has been seized in
any house, room or place entered under section 6 of about t he person of any one 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 a n instrument of gami ng the seized of such instrument or thing shall be
evidence until contrary is proved that such house, room or place is used as a common gaming
house and the second presumption is that the persons found therein were then present for the
purpose of gaming al though no gaming was actually seen by the Magistrate or the police
officer or by any person acting under the authority of either of them. It the facts are proved
for enabling the Court to raise the presumption under section 7 of the Act, and then it is for
the accused to show that it was not a common gaming house and the he was not present there
for the purpose of gaming.
For raising the presumption under sec. 7 of the Bombay Prevention of Gambling Act,
the entry in the house room or place must have been i n pursuance of a warrant under section
6 of the Act and instrument of gaming must have been seized in the said house room or place
so entered or about the person of any one found therein. But if no instrument of gaming has
been seized, but any other thing is seized, then the Court must be satisfied that the police
officer who enters such house, room or place had reasonable grounds for suspecting that the
thing so seized was an instrument of gaming and the seizure of such instrument or thing shall
be evidenc e that such house, room or place is u sed as a common gaming house and the
persons found therein were then present for the purpose of gaming, although no gaming was
actually seen by the police officer. The presumption under section 7 of the Act, therefore can
15
only be raised where any instrument of gaming has been seized or police officer entering the
house had reasonable grounds for suspecting that the thing so seized was an instrument of
gaming. If no instrument of gaming or the other things reasonably sus pected as instruments
of gaming are seized, then no presumption under sec. 7 can be raised. The particulars which
have been put to the accused in this case show that no instruments of gaming or any other
thing suspected to be an instrument of gaming have b een seized. The question therefore of
raising a presumption under section 7 of the Act could not arise in this case. The admission, if
any, of the accused that it was at common gaming house would not be sufficient to raise a
presumption under section 7 and the further presumption that even though no gaming was
actually seen therein, the persons found therein were then present for the purpose of gaming.
Section 5 of the Act raises a different kind of presumption. Even though there might
not be any instruments of gaming or any other thing suspected to be instruments of gaming
found in a house, room or place, it can still be common gaming house if it is use d as such. In
that case, if it is proved by other evidence without inviting the presumption under sec. 7 that a
particular house, room or place is a common gaming house, then the presumption under
section 5 of the Act comes into effect. The presumption raised under section 5 is that a person
who found in any common gaming house during any gaming therein shall be presumed to
have been there for the purpose of gaming. In order therefore to raise a presumption under
section 5 that a person was present in the c ommon gaming house for the purpose of gaming,
it must be shown that gaming was going on in that place. Section 5 of the Act makes a person
liable to be convicted if he is found in any gaming house gaming or present for the purpose of
gaming. If he is not f ound gaming or present for the purpose of gaming, section 5 of the Act
cannot be resorted to and to hold a person present for the purpose of gaming, the presumption
can be brought into use provided he is found in a common gaming house during a gaming.
In this case, the admission, if any, is that they were found in a common gaming house,
this admission, if any, is that they were found in a common gaming house. This admission by
itself does not raise a presumption that they were present there for there fo r the purpose of
gaming. It has further to be shown that at the time when they were found in the common
gaming house gaming was going on. That has not been put to the accused. Merely, therefore
on the offence under section 5 of the Bombay prevention of Gam bling Act cannot be broight
home to the accused. A further ingredient, namely, that at that time gaming was going on has
still to be established. This not having been done, the learned Magistrate was in error in
straightway convicting the applicants -accused under section 5 of the Act. Either it has to be
established that the accused were found gaming in a common gaming house or were present
in the common gaming house for the purpose of gaming or it has to be established that they
16
were found in a common gaming house during gaming, in which case it would be open to the
accused to show that they were not present there for the purpose of gaming. The learned
Sessions Judge, therefore, was right in holding that the particulars of the offence which are
explained to the accused were not complete and merely on the statement of the accused that
they are guilty in reply to the particulars explained to them , they could not have been
convicted under section 5 of the Act. State of Mah. v. Sharad Keshav, AIR 1967 Bom. 52.
[6] Game of Video Games is a game of skill -Play of such a game is exempted -No
congmzance can be taken -Action taken quashed. Tulsiram v.State of Rajasthan, 2002 [3]
WLR 55.
[7] Sentence-Fine of Rs. 200/- imposed on the petitioners, Government servants. In
the interest of justice and having regard to the fact that the service career of the petitioners
Amy not be affected it was directed that the order of sentence shall not come in the way of
the petitioners nor it shall tantamount to prejudice the service car eer of the petitioners. Vijay
Singh v. State of Rajasthan, 2000 WLC UC 53[Raj.].
___________
5. Powers to enter and authorise police to enter and search .- If the District
Magistrate or a Magistrate of the first class or the District Superintendent of Police, upon
credible information, and after such enquiry as he may think necessary, has reason to believe
that any, house, room, tent, enclosure, vehicle, s pace, vessel or place is used as a common
gaming house ;
he may either himself enter, or by his warrant authorise any officer of police, not
below such rank as the [State Government] shall appoint in this behalf, to enter with such
assistance as may be fo und necessary by night or by day, and by force, if necessary any such
house, tent, room, enclosure, vehicle, space, vessel or place ;
and may either himself take into custody, or authorise such officer to take into
custody, all persons whom he or such off icer finds therein, whether or not then actually
gaming ;
and may seize or authorise such officer to seize all instruments of gaming, and all
moneys and securities for money and articles of value, reasonably suspected to have been
used or intended to be used for the purpose of gaming which are found therein ;
and may search or authorise such officer to search all parts of the house, room, tent,
enclosure, vehicle, space, vessel or place ; which he or such officer shall have so entered
when he or such office r has reason to believe that any instrument of gaming are concealed
therein and also the persons of those whom he or such officer so takes into custody ;
17
and may seize or authorise such officer to seize and take possession of all instruments
of gaming found upon such search.
COMMENTARY
[1] What is illegal warrant of search:- The Sub Inspector obtained the blank warrant
signed by the Superintendent of police to be filed up with necessary details as and when the
occasion arose, such a warrant cannot be said to be a legal warrant cannot be said to be a
legal warrant, and more so it cannot be said that it was issued by the S.P. Police on the
creditable information and a fter making inquiry as he thought necessary made interpolations
therein accordingly. Radheshyam v. state, 1954, RLW 670.
[2] A person found in the house can be presumed to be gaming only when cards, disc
and other instruments of gaming are found in the house at the time of search. No such things
excepting a paper and one rupee note was fou nd inside the house. The contents of the paper
were not proved. Thus presumption of gaming can not be drawn. Radheshyam v. State, 1954
RLW 680=1955 NUC [Raj.] 5007.
[3] Illegality in warrant of search, effect of – If the search warrant is illegal no
presumption under section 6 arise that the house is a common gambling house or that the
persons present in the house are there for the purpose of the gaming. Dorab v. Emperor, AIR
1928 All 20.
[4] If the effect of the search warrant being illegal that no presumption such as arises
under section 6 can be made in favour of the prosecution, but a conviction under section 3
based on legal evidence is not vitiated merely because of the defect and irregul arities in such
warrants. Miranbakash v. emperor, AIR 1927 Lahore 699.
[5] If the warrant under which a search is made is bad then the presumption under
section 7 of the Act (section 7 of the Act being similar to section 6 of the Raj Public
gambling ordinance) cannot be made but mere fact that such presumption cannot be raised
does not prevent the prosecution from establishing by evidence in the ordinary way that on
the facts proved the accused were guilty of the offence charged. Emperor v. abbasbhai abdul
Hussain, AIR 1926 Bom. 195.
[6] But where there is sufficient other evidence independent of the presumption,
conviction is maintainable. Bajrang lal v. State, 1956 RLW 92=AIR 1955 NUC [Raj[] 4644.
[7] But where there is sufficient other evidence independ ent of the presumption,
conviction is maintainable. Bajrang lal v. State, 1956 RLW 92=AIR 1955 NUC [Raj[] 4644.
[8] Search warrant not legal –Effect of- The search warrant issued in this case under
section 5 of the Rajasthan Gamb ling Ordinance by the Distr ict Superintendent of Police
authorised a Sub-Inspector of Police to make the search. The notification of the Government
18
appointing all officers of Police not below, the rank of Sub -Inspector for purposes of section
5 of the Ordinance was published some time after the issue of this search warrant.
It was held, that the search warrant in the circumstances was not according to the
provisions of law. IT was however, further held, that the absence, of a warrant or the
irregularity or illegality of a warrant under section 5 of the Ordinance would result in the non-
availability of the presumption which the court may raise under section 6 of the Ordinance
but it would not affect the question, whether the accused was guilty or not and thus the
accused cannot be d ischarged or acquitted on the mere ground that the warrant under section
5 was not in accordance with law. [1884] All WN 286 ILR 26 Mad, 124, AIR 141 Nag. 338.
1959 SC 831 and 196], relied on. Brijalal v State, ILR [1960] 10 Raj. 36= AIR 1960 Raj. 90.
[9] District Superintendent of Police.- It is only the authorities so athorised who can
issue a warrant under section 5 and no other officer of equal or lower rank can do so even
though he may be discharging some of the functions of the officer competent of i ssue the
warrant.
The District Superintendent of Police means the Superintendent of Police who has
charge of the administration of the police in the district and not any other authority. Unless
the State Government has placed the officer in charge of the p olice administration of the
district, he cannot be deemed to be a District Superintendent of police for the purposes of
Rajasthan Public Gambling Ordinance. [ILR 1956 [6] Raj. 636} referred to, AIR 1953 Mys.
14] distinguished, AIR 1925 All. 301 and 1940 Bom.12} relied on. State v Laxminarain, ILR
[1964]14 Raj. 1024=1964 RLW 465= AIR 1965 Raj. 5.
6. Finding cards, etc. in suspected house to be evidence that such house are
common gaming house. -When any cards, dice, g aming-tables, cloths, boards or other
instruments of gaming are found in any house, room tent, enclosure, vehicle, space, vessel or
place ; entered or searched under the provisions of the last preceding section, or about the
person of any of those who are found therein, it shall be evidence, until the contrary is made
to appear, that such house, room, tent, enclosure, vehicle, space vessel or place is used as a
common gaming house, and that the persons found therein were there present for the purpose
of gaming, although no play was actually seen by the magistrate or police officer, or any his
assistants.
19
COMMENTARY
SYNOPSIS
1. Analogous provisions.
2. Provisions of Bombay Prevention of Gambling Act, 1887.
3. Section providing special and diferent rule of evidence or procedure-Not ultra vires -
Case under Bombay Act, 1887
4. When Presumption arises under section 6-A case under section 7 Bomday Act.
5. Presumption abou persons present in the room raided.
6. Presumption when instruments of gaming recovered.
7. Found meaning of.
8. instruments of gaming-Currency notes and coin ;
1. Analogous provisions- S. 6 Public Gambling Act, 1867 and S. 7 of Bombay Prevention
of Gambling Act, 1887.
2. Provisions of Bombay Prevention of Gambling Act, 1887.
''6. Entry, search etc. by police officer in groming. – 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 Sub -Inspector and either empowered by general order in writing of
authorised in each case by social 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 b y the State Government
in this behalf or by a District, Additional, Assistant or deputy Superintendent of
Police, and
(iii) Without prejudice to the provisions 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 person 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, r oom or place which he shall have so entered,
when he shall have reason to suspect that any instruments of gaming are concealed
20
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 :
Provided that no officer shall be authorised by special warrant unless the
Commissioner of Police, the Magistrate, the District (or Additional) or Deputy
Superintendent of Police concerned is satisfied upon making such inquiry as he may
think necessary, that there are good grounds to suspect the said house, room or place
to be used as a common gaming house.
(2) Notwithstanding anything contained is any law for the time being in force,
no made under this section shall be deemed to be illegal by reason only of the fact the
the witnesses (if any) of the search were not inhabitate of the locality in which the
house, room or place search is situate.''
''7. Presumptive proof of keeping in common gaming house. - when any
instrument of gaming has been seized in any house, room or place entered under
section 6 or about person of any one found there, and in the case of any other thing so
seized if the court is sagtisfied 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 house, room or place is used a common
gaming-house and the persons found therein were then present for the purposes of
gaming although no gaming was actually seen by the Magistrate or the Police Officer
or by any person acting under the authority of either or them :
Provided that the aforesaid presumption shall be made not -withstanding any
defect in the warrant or order in pursuance of which the house room or place was
entered under section 6, if the Court considers the defect not to be a material one.''
3. Section providing special and different rule of evidence or proce dure-Not
ultravires –Case under-Bombay Act, Sec. 7
It is contended that the section provides a special and a difficult rule of evidence or
procedure in the case of persons tried for offences under the provisions of this differents is
not justifiable and thus offends against the provisions of Article 14. We are not able to accept
this submission also. On the principles which we have discussed the State is entitled to
provide special procedure and rules of evidence for prosecutions in respect of certain class of
offences, provided such differentiation is reas onable and has relation to the object and
21
purpose of the legislation. Sec. 7 provides a special rule of evidence in respect of a class of
persons and things when they are in a place which is raided by a police officer empowered by
a general order or by a s pecial warrant under sec. 6 and when an instrument of gaming has
been seized from such premises. It further raises a presumption in respect of the premises
also. There is no doubt, therefore, that this different rule of evidence is made applicable to a
group of persons but is based on an intelligible differentia and it would hardly require any
stressing to show that it has a direct relation to the object of the staturExcerpt shown. Open the full act in Lexace.