1. Twenty-three persons have been convicted by the learned Judicial Magistrate, First Class, Ichalkaranji, for offences under Sections 4 and 5 of the Bombay Prevention of Gambling Act (Act IV of 1887). The allegation against the accused is that on the 8th of January 1961, they were found present in house No. 280 at Kini, for the purpose of gambling and that accused No. 1, in whose name the house stood, had kept a common gaming house. Relying upon a judgment of this Court reported in Emperor v. Karsandas Nanji, 44 Bom LR 443: AIR 1942 Bom 206 , the learned Magistrate held that it was prima facie undesirable to impose a sentence of imprisonment for a first offence under the Gambling Act. Accused No. 1 has been sentenced to pay a fine of Rs. 300/- under Section 4 of the Gambling Act and all the accused including accused No. 1 have been sentenced to pay a fine of Rs. 300/- under Section 5 of the Act. Being aggrieved by the order of sentence, the State filed an application for enhancement of the sentence, in the Sessions Court. The learned Additional Sessions Judge, Kolhapur, who heard the revisional application, has held that the decision reported in 44 Bom LR 443 : AIR 1942 Bom 206 on which the learned Magistrate relied was not good law in view of the subsequent amendments made to Sections 4 and 5 of the Bombay Gambling Act. According to the learned Judge, the amendments effected by Bombay Act No. 37 of 1947 make it obligatory on the Court to pass a sentence of imprisonment even in cases in which the accused has committed an offence under the Gambling Act for the first time. The learned Judge has made this reference recommending that the accused should be sentenced to suffer simple imprisonment for a period of one month in addition to the sentence of fine.
2. The learned Additional Sessions Judge is right that the trial Court has overlooked the amendments which are made to Sections 4 and 5 of the Prevention of Gambling Act by Bombay Act No. 37 of 1947. The question, however, which arises for determination is whether on a true view of the amendments effected in the year 1947, it is obligatory upon a Court to sentence a first offender under the Gambling Act to a substantive sentence of imprisonment. To be able to appreciate the reasoning of the learned Additional Sessions Judge, it would be necessary to compare the provisions contained in unamended Sections 4 and 5 of the Gambling Act with those contained in the amended Sections 4 and 5. Prior to the amendments made by Bombay Act No. 37 of 1947, Section 4 and Section 5 of the Gambling Act, in so far as they are material, stood thus:
'Section 4. Whoever ............ keeps .........a
common gaming house ......... shall, on conviction, be punishable.
(a) for a first offence with imprisonment which may extend to seven months, or with fine which may extend to one thousand rupees, or with both; provided that in the absence of special reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one month and fine shall not he less than two hundred rupees.
'Section 5. Whoever is found in any common gaming-house ......... shall, on conviction, be punishable with fine which may extend to five hundred rupees, or with imprisonment which may extend to one month.'After the amendment the two sections read as follows : 'Section 4. Whoever keeps ...............a corn-con gaming-house ......... shall, on conviction, bepunishable with imprisonment which may extend to six months and with fine :
Provided that:
(a) for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees.'
'Section 5. Whoever is found in any common gaming house.........shall, on conviction, be punishable with imprisonment which may extend to six months and with fine: Provided that:
(a) for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees :'
The view which has found favour with the learned Additional Sessions Judge is that the object of the amendment effected in the year 1947, was to meet the decision of this Court reported in 44 Bom LR 443 : AIR 1942 Bom 206 and that under the amended Sections 4 and 5 of the Gambling Act, no discretion at all has been left to the Courts to impose a sentence other than a substantive sentence of imprisonment. According to the learned Judge, to construe the amended provisions as conferring a discretion on the Courts to impose either a substantive sentence or a sentences of fine is to render the amendment meaningless and infructuous.
3. The words which fall to be construed are, whoever commits an offence 'shall on conviction be punishable with imprisonment which may extend to six months and with fine; provided that for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees'. A key to the proper interpretation of the provisions contained in Section 4 may be furnished by analogous provisions in the Indian Penal Code, which is the law of the Land. If, for example, one turns to Section 302 of the Penal Code, it would be clear that when it was intended by the Legislature that a particular penalty must be imposed on the accused, the Legislature has used a language different from the one which is used in Section 4 of the Prevention of Gambling Act. Section 302 which prescribes the punishment for murder provides that whoever commits murder 'shall be punished with death, or imprisonment for life, and shall also be liable to fine'. It is clear from the language used in Section 302 that when it was intended to deprive Courts pf a discretion not to impose a sentence of imprisonment, the language used was that the person shall be 'punished' with death or that he shall be 'punished' with imprisonment for life. Section 392 of the Penal Code which prescribes the penalty for robbery also provides that whoever commits robbery shall be 'punished' with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. The wording of Section 392, like the wording of Section 302, makes it clear that if a person is held guilty of robbery, then there is no option left to the Court not to sentence the offender to a term of imprisonment. When one turns, however, to Section 4 of the Gambling Act, what is provided therein is that whosoever, for example, keeps a common gaming-house shall be 'punishable' with imprisonment which may extend to six months and with I fine. The word 'punishable' as contrasted with the word 'punished' must be given its proper meaning and, so construed, it is not susceptible of the construction that by its use the Legislature has deprived the Courts of their discretion to sentence the accused either to a term of imprisonment or to pay a fine. What is stated in Section 4 and what is emphasized by the contrast provided by the language used in Section 4 and the language used in the two Sections of the Indian Penal Code referred to above, is that the punishment to which a person who has committed an offence under Section 4 can be sentenced could be both imprisonment and fine. I am unable to agree with the learned Additional Sessions Judge that by reason of the fact that the word 'and' is used in Section 4, it is obligatory upon the Courts to punish an offender both with imprisonment and with fine. To construe the word 'and' as casting an unqualified obligation on the Court to sentence an offender to imprisonment and to fine and to construe the word, 'and' as depriving the Courts of their discretion to impose either, a sentence of imprisonment or a sentence of fine seems to me to ignore 'the distinction between the phrase 'shall be punished' on the one hand and the phrase 'shall be punishable' on the other. The proviso to Section 4 Clause (a) provides that for a first offence 'such imprisonment shall not be less than onemonth and fine shall not be less than two hundred rupees'. The construction which the learnedAdditional Sessions Judge has placed upon the language used in the proviso is, in a sense, aconsequential construction which he put upon the charging words of Section 4. Once it is realised that the charging words of Section 4 do not impose on the Courts an obligation to sentence an offenderboth, to a substantive term and to a fine, the difficulty which the learned Additional Sessions Judge felt in construing the language of the proviso becomes unreal. In my opinion, on a true construction of the language used in the proviso, it is open to a Court which convicts an offender under Sec-lion 4 or Section 5 of the Gambling Act to sentence the offender either to a term of imprisonment or to payment of fine. All that the Legislature has provided is that if the Court decides to pass a sentence of imprisonment, such imprisonment shall not be less than one month, and if the Court decides to impose a sentence of fine instead of a sentence of imprisonment, the fine shall not be less than 200 rupees.
4. The difficulty which the learned Additional Sessions Judge felt is that, according to him, to construe the amendment as maintaining intact the discretion of the Court is to render the amendment nugatory. I am unable to agree with him because whereas under the unamended Sections 4 and 5 Courts had the discretion to impose a sentence which was even less than the minimum prescribed if there were special reasons which were requiredto be mentioned in the judgment, after the amendment even if there are special reasons which can bear a mention in the judgment, the Legislators has stated that the sentence of imprisonment shall not be less than one month and the sentence of fine shall not be less than Rs. 200/- even in the case of a first offence. By construing the amendment in the manner which I have indicated above, the amendment can be given its due effect, for, so construed, the amendment can serve the purpose of making it obligatory upon the Court to award either a particular sentence of imprisonment or a particular sentence of fine even if there are special reasons why the Court felt that a lesser sentence than the minimum would meet the ends of justice.
5. Mr. Bhasme, who appears on behalf of the accused, has drawn my attention to a judgment of a Full Bench of this Court reported in Emperor v. Peter D'Souza 50 Bom LR 574: AIR 1949 Bom 41. The question which arose before the Full Bench was, except for legislative history, very similar to the question which arises before mo and the words which the Full Bench was called) upon to construe were those contained in Section 43(1) of the Bombay Abkari Act, 1878. That section provided that the accused' shall, on conviction, be punishable ......... with imprisonmentfor a term which may extend to six months and with fine which may extend to Rs. 1,000/-.' Chief Justice Chagla, who delivered the judgment of the Full Bench, observes in his judgment that the provision did not make it obligatory upon the Court to inflict upon the accused both, the sentence of imprisonment and the sentence of fine. The learned Chief Justice relied upon the distinction between the word 'punishable' and the word 'punished' and held that despite the use of the word 'and' in Section 43(1) of the Bombay Abkari Act, the discretion of the Courts to inflict either the sentence of imprisonment or the sentence of fine was not taken away. The attention of the learned Additional Sessions Judge was unfortunately not drawn to this decision.
6. For these reasons, the reference made bythe learned Additional Sessions Judge must be rejected. ' The learned Magistrate has passed a sentence of fine of Rs. 300/- and that clearly is notless than the minimum sentence of fine which isprescribed for the first offence by proviso (a) toSections 4 and 5 of the Gambling Act. Theorder of conviction and sentence passed by thelearned trial Magistrate will, therefore, be confirmed, and the rule in the reference will be discharged.
7. Rule discharged.