Judgment:
V.B. Raju, J.
1. This revision application arises out of the judgment of the learned Sessions Judge, Nadia, who confirmed in appeal the convictions of the seven applicants under Section 5 of the Bombay Prevention of Gambling Act and the sentences passed on them of fine of Rs. 200/- each, in default imprisonment for one month.
2. In revision, the learned counsel for the applicants has argued three points: (1) That the conviction under Section 5 of the Gambling Act is not justified when the P. S. I. who made the search under Section 6 of the Gambling Act is contradicted by both the Panchas, who say that they were not present in the room at the time when it was searched, although according to the P. S. I. the search was made in the presence of the Panchas; (2) that such a conviction is not justified when the P. S. I. is contradicted by the head constable, who accompanied him, and who has deposed that he does not remember whether the particular room, in which, according to the prosecution, instruments of gaming were found, was or was not searched; and (3) that on the evidence, no reasonable Court would have convicted the accused when the conviction is based on presumption arising under Section 7 of the Gambling Act in view of the contradictions between the P. S. I. and the head constable and in view of the contradictions between the P. S. I. and the Panchas.
3. In this case, the two Panchas, who were taken at the time of the search of the place by the warrant issued under Section 6 of the Gambling Act, did not support the P. S. I. One of the Panchas denied having been shown the warrant. One of the Panchas says that he did go upstairs. The second Panch said that he voluntarily remained on the Otla downstairs, and both the Panchas say that the police brought the accused downstairs and also showed them the instruments of gaming, which are alleged by the P. S. I. to have been found in the room at the time of the search.
4. It is important to note that this is a case where a search was made under Section 6 of the Gambling Act. There is no provision in the Gambling Act applying the provisions of Section 102, Cr. P. C. to a search under Section 6 of the Gambling Act. There is also nothing in the Cr. P. C. applying the provisions of Section 103, Cr. P. C. to a search under Section 6 of the Gambling Act. Section 103, Cr. P. C. which makes it obligatory to make a search in the presence of two Panchas, applies only to searches under Chapter VII of the Cr. P. C. When the police authorised by a warrant makes search of a place under Section 6 of the Gambling Act, it is not obligatory to search the place in the presence of two Panchas as required by Section 103, Cr. P. C. This is also the view taken in Emperor v. Raghunath Lahanusa, 34 Bom LR 901: (AIR 1932 Bom 610). The learned Sessions Judge referred to the principles enunciated in Emperor v. Shanwar Manu, 52 Bom LR 38 : AIR1950Bom267 which was a case relating to a conviction under the Prohibition Act, which provides that all searches made under the Prohibition Act should be made in accordance with the provisions of the Cr. P. C. It is, therefore, unnecessary to consider the principles discussed in 52 Bom LR 38 : AIR1950Bom267 as that case refers to a search under the Prohibition Act, whereas we are dealing with a search under the provisions of the Gambling Act to which the provisions of Section 103, Cr. P. C. do not apply.
5. It is, however, contended by Mr. Amin that although the presence of two Panchas is not obligatory under Section 6 of the Gambling Act, if in fact two Fanchas are taken the same principle should be applied. It is difficult to accept this contention. It Panchas are not obligatory, the ordinary principles of appreciation of evidence should be applied. The fact that there is a contradiction between the evidence of the P. S. I. and that of the head constable would not justify my interference with the conviction in revision. Similarly, the contradiction between the evidence of the P. S. I. and that of Panchas would not justify interference in revision by the High Court. That is a matter of ordinary principles of appreciation of evidence.
6. The last point urged by Mr. Amin is that on the evidence no reasonable Court would have convicted the accused when the conviction is based on the presumption arising under Section 7 of the Gambling Act in view of the contradictions in the evidence. It is difficult to agree with this contention in view of the fact that the P. S. I. has deposed that instruments of gaming were found in the room which was searched. The head constable also deposed that the instruments of gaming were found but be does not remember in what room they were found. The Panchas also deposed that the instruments of gaming found by the P. S. I were shown to them when they were downstairs. Therefore, it cannot be said that no reasonable Court would have convicted the accused on evidence.
7. Mr. Amin also relied on a decision of this Court given by me on 8-7-1960 in State v. Raijibhai, Criminal Ref. No. 14 of 1960: (AIR 1960 Guj 24). But that related to a case of prohibition. It is therefore unnecessary to discuss that case.
8. The revision application is therefore rejected.