Full Judgment
Thom, J.
1. This is a criminal reference arising out of a prosecution as a result of which three applicants were convicted under Section 4, Gambling Act, of 1867. It appears that the Magistrate issued a warrant for the search of a certain house where gambling according to the terms of the warrant was 'likely to take place' The three applicants were found in the house when the search was made. They were tried and convicted under Section 4 of the Act on the evidence of the Sub-Inspector who searched the house and of Kunja Tewari who was examined under Section 10 of the Act and of Wali Mohammad, a man who is said to have been sent by the police to watch the gambling.
2. Now, Section 5 of the Act empowers a Magistrate of the district upon credible information and after enquiry if he has reason to believe that a house is used as a common gaming house to issue a warrant for search. The warrant in the present case recites that information is received that gambling was 'likely to take place' in the j house which was searched not upon information that the house was being used as a common gaming house. The warrant therefore is not in strict accordance with the provisions of Section 5 of the Act. By Section 110 of the Act persona found in the house when it is searched under the provisions of the Act may be examined on oath. This Section 10 in a penal statute must be read strictly and if the warrant is not issued strictly in accordance with the provisions of the Act then a person found in the house when it is searched may not be examined under Section 10. The witness Kunja Tewari in the present case was examined under Section 10 although the search was not in accordance with the provisions of the Act inasmuch as upon the face of it, it was issued not upon the information that the house was being used as a common gaming house but upon information that gaming was likely to take place therein.
3. The presumption that persons found on the premises when a house is searched were there for the purpose of gaming only arises when the search is legal. The search in the present case proceeded upon a warrant, which upon the face of it, is not in compliance with the terms of Section 5 of the Act. No presumption therefore arises against those who were found in the premises when the house was searched on the illegal warrant.
4. The result is that because of the illegality of the warrant Kunja's evidence was inadmissible and the presumption against the applicants found in the premises on the search did not arise. I am of opinion therefore upon the whole matter that this reference should be accepted and that the convictions of the applicants be set aside. The fines, if paid, will be refunded.