Costello, J.
1. On 25th January 1935, acting under the authority of a warrant signed by the Deputy Commissioner of Police under the Provisions of Section 46, Calcutta Police Act, 1866, Sub-Inspector Syed Hossain of the Detective Department raided certain premises consisting of two rooms situated on the first floor of No. 15, Park Street. These rooms were said to be occupied by a club known as Harlequin Club. In the first room there was a billiard table bench, and some sort of locker or cupboard, and from that room access could be had through a swing door, to the second room which was a card room containing a card table, chairs and a small side board. In the entrance hall, as it has been called, the Police party found seven persons, M.A. Adams, Jan Mohammad, Mr. and Mrs. Ellis, Ben Rose, Ismail Bham, and M. Morris. In the card room there were nine persons, F. Coelho, D. Coelho, T. Blake, H. Sukeas, O.K. Spanos, E. Peters, M. Echlin, L. Green, and Robin Neid. The last named jumped out of the window when the police arrived, but subsequently reported himself at the Park Street Police Station. The raid took place at 11 p.m., on the night of 25th January, and Robin Neid came to the police station about three hours later. All the persons found in the premises were placed under arrest and with the exception of one Mrs. Ellis, they were searched in the presence of a search witness.
2. All the persons whose names I have mentioned, were put upon their trial before the Chief Presidency Magistrate of Calcutta. All of them were charged with gambling on horse races at the Harlequin Club premises, No. 15 Park Street, and so committing an offence under Section 45, Calcutta Police Act, 1886, and in addition M.A. Adams as the Secretary of the Club was further charged that he as the Secretary of the Harlequin Club was the occupier of 15 Park Street and was keeping and using that place as a common gambling house on the night of 25th January 1935 and so committed an offence under Section 44, Calcutta Police Act, 1866. In order to make plain what the position was, it is necessary that I should recapitulate the facts which were given in evidence before the learned Magistrate as to what was discovered at the time when the raid took place, in that part of the premises described as the entrance hall. Jan Mahammad and Ismail were found seated on a bench, and Mr. and Mrs. Ellis, Ben Rose, M. Morris, and M.A. Adams standing around in a body. On the floor close to where Jan Mohammad was seated were found two slips of paper which were Exs. 9 and 9(1). According to the prosecution these slips of paper were betting slips. Jan Mohammad admitted that the slip Ex. 9(1) which contained writing in the Guzrati language was in his handwriting, but he disowned the other slip Ex. 9. Another slip of paper which is Ex. 10 containing names of certain horses was also found in the entrance hall of the premises. M.A. Adams was found to have the sum of Rs. 2-10-0 on his person; Ben Rose had a pocket book in which there was the following entry: 'Bardley' 160-20 Adams, 160-20 Bose. He also had Rs. 1880 in cash. Jan Mahmmad had Rs 165 in cash; J. Ellis had Rs. 125-2-9. Mrs. Ellis, as I have already said, was not searched apparently because there was no female searcher available at the time. Ismail Bham had Rs. 66; M. Morris had no money at all.
3. The persons who were found in the card room were also searched. On the floor of that room there were found six small pieces of paper with the names of horses and apparently bets inscribed thereon. They were put in evidence as Ex. 11. There were also twenty-one pieces of torn paper which were put in as Ex. 12. The prosecution case was that all these pieces of paper, in all twenty-seven, had formed a single sheet of paper on which bets had been recorded immediately to or shortly before the raid. In a drawer of the side board was found a blank playing card Ex. 13, on which appear the names of horses and a bet. In a cash box there was a book of Irish Sweep Stake tickets, Ex. 14 out of which two had been removed. They were Exs. 15(1) and 15(2). On each of these tickets there was a list of members evidently forming some sort of syndicate. P. Coelho was found to be in possession of Rs. 110-11-0 in cash. D. Coelho had no money, nor had T. Blake. H. Sukeas had Rs. 116. O.K. Spanos had five annas and two programmes of the Calcutta races of 19th January 1935 and 26th January 1935. E. Peters had Rs. 2-6-0 and an acceptance paper of the Turf Club with pencil notes of sprint timings Ex. 5, also two programmes of the Calcutta and Bombay race meetings of 26th January 1935. M. Ecklin had Rs. 3-8-6 and an acceptance paper of the Calcutta Turf Club Ex. 4. L. Green had Rs. 250 in cash and a slip containing names of horses, Ex. 3.
4. All the accused persons put in written statements. Some of them denied that any betting had taken place; the gist of the defence of the accused persons, was that they were members of a bona fide club and no gambling of any kind took place on the premises. Witnesses were called for the defence at the trial, in order to support the case that this was a bona fide club. The learned Chief Presidency Magistrate upon a careful consideration of the evidence came to the conclusion that the accused persons had assembled at the club on the night of 25th January last for the purpose of gaming, and he said that the race programmes, betting slips, some bearing the very date on which the raid took place, the note book showing odds laid on the horse Bardley, the betting account of Jan Mohammad, the sheet of paper on which bets were actually being recorded and which was hurriedly torn to pieces at the time of the raid, the large sums of money found on the persons assembled there, the conduct of one of them Robin Neid in jumping out of the window, the extra judicial confession made by Ben Rose on the following morning to Mr. Russel, all these things go to show conclusively that these persons were engaged in unlawful gaming.
5. The last piece of evidence refers to the fact that one Mr. G.W. Russel who is a registered bookmaker gave evidence that early in the morning of 26th January 1935, that is to say the day after the raid, Ben Rose and T. Blake came to his house. Ben Rose spoke about the raid and he said that he had laid two bets of Rs. 160-2-0 each to Adams and Bose for Bardley to win the Civil Service Cup at Lucknow and he begged him (Russsel) to say that he had laid those bets on behalf of Russel. Mr. Russel refused to accede to this request. Then Mr. Russel was asked to give him advice about his defence. Mr. Russel very sensibly advised him to consult a lawyer. Ben Rose admitted that he had seen Mr. Russel but said that it was only for the purpose of asking advice. The learned Magistrate accepted the version given by Russel. Upon the evidence given in the case there can be no doubt whatever that the persons assembled in the club premises at that night had been making or arranging for the making of bets on horse races. Having come to the conclusion I have just mentioned, the learned Magistrate then said in his judgment:
I therefore find the accused M.A. Adams guilty under Section 44, Calcutta Police Act, and sentence him to three months rigorous imprisonment. The accused Mrs. Ellis may reasonably be regarded as merely having accompanied her husband to the place. She is therefore acquitted. All the other accused persons are found guilty of being present at that place for the purpose of gaming.
6. The learned Chief Presidency Magistrate sentenced all the accused persons to pay a fine of Rs. 50 in default one month's rigorous imprisonment with the exception of Ben Rose whom he sentenced to one month's rigorous imprisonment under Section 45, Calcutta Police Act. The learned Magistrate then made an order the legality of which is more than doubtful. He directed that all the money which had been found on the persons of the accused should be confiscated to Government under Section 48, Calcutta Police Act. That Section 48 provides for the forfeiture of all instruments of gaming found in a common gaming house and for the forfeiture of all the money seized therein. But it does not in terms, at any rate, provide for the forfeiture of the money found upon the persons arrested in a common gaming house. I do not propose however to express any opinion on that point at this stage.
7. M.A. Adams, as I have stated, was convicted under Section 44, Calcutta Police Act. The rest of the accused were convicted under Section 45 of that Act. Both those sections have reference to premises which constitute a common gaming house. Under the first section a penalty is provided for owning or occupying or keeping a common gaming house and under the next section a penalty is provided for being found playing in a common gaming house. It was therefore necessary before all these persons could be rightly convicted that it should be established that the premises known as the Harlequin Club on the first floor of No. 15, Park Street, constituted a common gaming house. The learned Magistrate did not find in terms that those premises were a common gaming house. He enumerated the eight pieces of evidence which I have already recited, and then said that he convicted Adams under Section 44 and the others under Section 45.
8. Adams and Ben Rose moved this Court against their conviction on the ground that the elements necessary to constitute an offence under Section 44 or Section 45, Calcutta Police Act, were not proved in the case. It is a fact that there was no definite finding by the learned Chief Presidency Magistrate with regard to any of the elements which are the necessary ingredients of the offences with which these persons were respectively charged. Adams has set forth in his petition to this Court that there was no evidence on, the record to show that gaming was taking place on that night. There was no evidence to show that the club was a common gaming house; that the articles seized by the police do constitute instruments of gaming. There was no evidence that the petitioner made any profit in managing the club, either as Secretary or otherwise, and there was no evidence that the club was occupied or used by the petitioner as the common gaming house at the time of the raid on 25th January 1935. The ground put forward by Mr. Ben Rose was very much the same, and the whole matter resolves itself into the question as to whether the premises were a common gaming house within the meaning of the Act. That is really the sole question which we have to determine in the proceedings now before us. In order to make quite plain how the point arises, it is necessary I think that I should recite in full the actual words of Section 44, That section says:
Whoever, being the owner, occupier, or having the use of any house, room or place, opens, keeps or uses the same as a common gaming house and whoever, being the owner or occupier of any house or room, knowingly or wilfully permits the same to be opened, kept or used by any other person, as a common gaming house, and whoever has the care or management of, or in any manner assists in conducting, the business of any house, room or place so opened, kept or used, and whoever advances or furnishes money for the purpose of gaming with persons frequenting such house, room or place, shall be liable, on summary conviction before a Magistrate, to a fine not exceeding five hundred rupees, or to imprisonment, with or without hard labour, for any term not exceeding three months.
9. Incidentally it is to be observed that the learned Chief Presidency Magistrate thought fit to inflict upon M.A. Adams the maximum penalty provided by that section.
10. The first question to which consideration must be given in order to see whether M.A. Adams committed an offence under Section 44 is the question whether he could properly be described as the owner or occupier, or a person having the use of any house, room, or place, and whether he opens, keeps or uses the same as a common gaming house. The case for the prosecution was that the club was merely a sham, to use the expression which was used in one of the English cases, and that in reality the premises were being run by M.A. Adams for his own benefit and for his own profit or gain. In support of that case it has been shown on behalf of the prosecution that the premises were rented in the name of M.A. Adams from Mr. Galstaun. It was also shown that the supply of electric current to the premises was under a contract between the Calcutta Electric Supply Corporation Ltd., and the wife of M.A. Adams. The account for the telephone was in the name of M.A. Adams. In his written statement M.A. Adams said that both the electric light and the telephone account were in the name of his wife. It was apparently not known at the trial, that is to say not known to the Magistrate, that Adams' wife has been dead for nearly two years. It, therefore, to say the least of it, was not a point in favour of the defence that Adams, when this club started in February 1934, allowed the Calcutta Electric Supply Corporation Ltd., to agree to supply electricity to the premises for the account of Mrs. Adams. There was, no doubt, before the learned Chief Presidency Magistrate, ample evidence on which he could draw the inference that this club was something in the nature of a proprietary club which was really being run by M.A. Adams for his own profit, if in fact there was any profit from the members who resorted to these premises. Although the Chief Presidency Magistrate does not say so in his judgment, in his own mind he must have presumably come to conclusion that was the real position, namely, that this Harlequin Club was not a club at all in the ordinary sense of the term but was a one man concern, if I may use the expression. Presumably also in his own mind the learned Chief Presidency Magistrate was satisfied that M.A. Adams knowingly and wilfully permitted the premises to be used by the other persons that is to say the persons resorting thereto for the purpose of making bets or arranging bets on horse races. One can only assume that the learned Chief Presidency Magistrate went through the necessary mental processes because he did in fact convict M.A. Adams of an offence under Section 44.
11. The learned Magistrate has not in terms found that M.A. Adams was the owner or occupier or the person having the use of the premises, but it is clear that the learned Magistrate was satisfied and rightly satisfied that gaming within the meaning of the definition given in Section 3 of the Act was going on in those premises on the night of 25th January because in Section 3, Calcutta Police Act, 1866, gaming is defined as including wagering or betting except wagering or betting upon a horse race, except when such wagering or betting takes place on the day on which such race is to be run, in an enclosure which the Stewards con trolling such race have, with the sanction of the Local Government, set apart for the purpose. But it is not sufficient to hold that the person charged under Section 44 is the owner or the occupier or is a person having the use of any house, room, or place, unless it is also shown that the accused has opened, kept or used the same as a common gaming house. Now in order to ascertain what is a common gaming house one has once more to look back to Section 3 of the Act, and there we find that a common gaming house means any house, or room, tent, or walled enclosure, or space or vehicle, or any place whatsoever, in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, space, vehicle or place whether by way of charge for the use of such house, room tent, enclosure, space vehicles place or instruments or otherwise howsoever. These premises in Park Street are obviously room, certainly they were a place within the meaning of this definition.
12. Then the question arises whether in that place any instruments of gaming are kept or used for the profit or gain of the person owing, occupying or using or keeping that place. In the present instance it was for the profit or gain of M.A. Adams. Mr. Khundkar has argued and very cogently that one must pay great attention to the concluding words of this definition, because they indicate the manner in which profit or gain may accrue before the use of the instruments of gaming. The profit or gain may be by way of (1) charges for use of the place in question. It is said therefore that it may be that the position was that M.A. Adams was running this club himself and took the subscriptions of the members, or at any rate he took the profits accruing from the use of the billiard table or from the sale of refreshments or money coming in respect of bar account and so on. Having regard to the findings of fact to which I have already referred it is reasonably clear that was the position. The second way in which a charge can be made is for the instruments themselves. That obviously is not the position here. Thirdly or otherwise howsoever; it has not been suggested by the prosecution that any profit or gain accrued to M.A. Adams otherwise than by reason of the fact that he was running this club as a one man concern.
13. Mr. Khundkar with considerable stress pointed out that in enacting this definition of 'common gaming house' or at any rate in drafting it, the section, there must have been a change of attention or at any rate a change of mind on the part of the legislature. In my opinion the difficulty which faced the prosecution in this matter arises from the fact that the legislature in enacting the provision in the Calcutta Police Act dealing with gaming, have attempted to deal in one and the same piece of legislation, and indeed in one and the same section of the Act with two different classes of offence. It seems to me that the sections of the Calcutta Police Act with which we are now concerned represent an intention on the part of the legislature to incorporate in the same enactment provisions, or at any rate the gist of the provisions of two analogous English statutes, that is to say the Gaming Act of 1845 and the Betting Act of 1853. Under the English law a common gaming house is a place where an unlawful game is played, and in connexion with gaming the use of the word 'instruments' is of course in every way appropriate. Under the Betting Act of England, it is an offence to keep a betting house,' that is to say to keep a house to which persons can resort for the purpose of betting. In that case the use of the word instruments is not so obviously appropriate. In the Calcutta Police Act as I have already mentioned gaming is said to include wagering and betting. Then lower down in Section 3 'instruments of gaming' includes any article used as a means or appurtenance of, or for the purpose of carrying on or facilitating gaming. By putting the definition of 'gaming' and the definition of 'instruments' together, the prosecution said that the articles which were found upon these premises, No. 15 Park Street, must be regarded as instruments of gaming. The prosecution is bound to say that because the essence of the definition of a 'common gaming house,' is a place in which instruments of gaming are kept or used. No place can be a common gaming house unless instruments of gaming are kept or used in it, and kept or used for the profit or gain of the person or persons owning or occupying the place.
14. Now, assuming all the facts in this case to be in favour of the prosecution, viz. that the room Harlequin Club is an one man concern room and M.A. Adams took such profit or gain as accrued from the working of the Club, and assuming the persons found on the premises on the night of 25th January were engaged in wagering or betting and therefore gaming; assuming all these things the premises do not become a common gaming house unless it can be said that there were instruments of gaming kept or used therein. Mr. Khundkar has very properly, frankly, and in all fairness, conceded that this is the position and those convictions cannot be sustained unless we hold that the pieces of paper which were discovered in the entrance hall and in the card room of the premises can rightly be described as instruments of gaming within the meaning of the definition contained in Section 3, Calcutta Police Act, 1866.
15. We have given our very careful attention and consideration to that point. A large number of authorities were cited to us upon this point, but it became apparent towards the end of the proceedings that none of those authorities were really of any assistance to the Court, because they had all come into existence before the definition in the Calcutta Police Act of 1866 assumed its present shape. Both sides overlooked the fact that the definition of 'instruments of gaming' as it now stands as well as the definition of gaming' and the definition of common gaming house' were substituted for the former definitions by Act 4 of 1913. The definition of 'instruments of gaming' as it now stands is this: Instruments of gaming include any article as a means or appurtenance of or for the purpose of carrying on or facilitating gaming. Gaming includes wagering or betting except wagering or betting upon a horse-race when such wagering or betting takes place under certain conditions. The definition of gaming prior to 1913 was different and did not include betting in the general sense.
16. Now reading the two definitions together, the definition of 'gaming' and the definition of 'instruments of gaming' those definitions as they now appear, we feel ourselves bound to come to the conclusion that the slips of papers and the other articles relied upon in the present case must be taken to be instruments of gaming, that is to say articles used as a means or appurtenance of, or for the purpose of carrying on or facilitating gaming. I think it would be a misuse of language to come to any other conclusion than that these slips of papers which were found in the entrance hall and in the inner room of these premises, were used for the express purpose of facilitating the betting operations which were in progress at the time of the raid.
17. We therefore come to the conclusion after a careful and anxious consideration of this matter that this conviction must be upheld. At the same time however as it appears that this is the first occasion on which, as far as we know, Mr. Adams and Mr. Ben Rose have been prosecuted for an offence of this character, we think that justice will be done if we impose a lenient sentence. We think therefore that we should set aside the sentence of imprisonment, and that the justice of the case will be met if we sentence Adams to pay a fine of Rupees 500 and Ben Rose to pay a fine of Rs. 200. There is one other point which I have already touched upon, which I must now deal with. That is the question of the monies which were confiscated by the order of the learned Chief Presidency Magistrate. We are of opinion that there is no justification in law for any such order. Therefore the monies found upon the persons arrested must be restored. In default of the payment of the fines of Rs. 500 and Rs. 200 we sentence Adams to undergo rigorous imprisonment for three weeks and Ben Rose to undergo rigorous imprisonment for one week.
M.C. Ghose, J.
18. These are two petitions by M.A. Adams and Ben Rose, who have been convicted, one under Section 44 and the other under Section 45, Calcutta Police Act. The facts in short are that on the strength of a warrant issued by the Deputy Commissioner of Police, Detective Department, under the provisions of Section 46, Calcutta Police Act, Sub-Inspector Syed Hossain of the Detective Department at 11 p.m. on 25th January 1935 raided the premises of the Harlequin Club, which consists of two rooms on the first floor of No. 15 Park Street. In the first room was a Billiard table, a bench and a cup-board. In this room were found petitioners M.A. Adams and Ben Rose and 5 other persons. In the next room, which is the card room, were found 9 other persons. On the floor of the first room were found three slips of paper which appear to be betting slips and Ben Rose had a pocket book with the entry, 'Bardie 160-20 Adams, 160-20 Bose.' In the card room the officer found six small pieces of paper with names of horses and bets and 11 pieces of torn paper, it being the prosecution case that all these 17 pieces of paper formed a single sheet on which bets were taken. In a drawer was found a blank playing card containing the names of horses and a bet. In a cash box was found a book of Irish Sweep-stake tickets out of which two had been removed and with these tickets was a list of members forming a Syndicate. Another of the accused had two programmes of the Calcutta Faces of 19th January 1935 and 26th January 1935. Yet another had the acceptance paper of the Turf Club with pencilled notes of Sprint timings and two programmes of the Calcutta and Bombay Race meetings of 26th January 1935. Another accused had an acceptance paper of R.C.T.C. Yet another had a slip containing names of horses. Petitioner M.A. Adams was the secretary of Harlequin Club which as stated above consisted of two rooms. There were other rooms in the flat which were used by M.A. Adams as his private residence. The whole flat was rented by M.A. Adams from Mr. Galstaun at Rs. 200 a month. The telephone and electric light were in the name of petitioner Adams or his deceased wife. The club apparently was limited to subscribers or members who paid a fee of one rupee a month. Cards and billiards were played and drinks and refreshments were sold. The learned Chief Presidency Magistrate who has tried the case has come to the finding on these facts that the place was a common gaming house and that petitioner Adams kept it. He therefore convicted petitioner Adams under Section 44, Calcutta Police Act, and sentenced him to rigorous imprisonment for three months. He found petitioner Ben Rose and 14 others guilty under Section 45, Calcutta Police Act. Petitioner Ben Rose was sentenced to rigorous imprisonment for one month and the others sentenced to fines of Rs. 50 each.
19. The first question is whether gaming was taking place in the club on the night in question. The word 'gaming' is defined in Section 3, Calcutta Police Act, as amended in 1913. It includes wagering or betting, excepting betting in a racecourse within an enclosure provided by the Stewards. Here upon the facts there is no doubt that these accused persons were engaged in the act of betting on the Calcutta Races of the following day arid of the Lucknow Races of the following week. According to the definition they were in the act of gaming, namely, wagering and betting.
20. The next question is whether the slips of paper and the marked card and the note book of Ben Rose were instruments of gaming within the definition in Section 3, Calcutta Police Act. 'Instruments of Gaming' includes any article used for the purpose of facilitating gaming. Now it is possible that the accused persons might have wagered or betted with one another without making any record of the same, but such betting would be confined by their power of memory. There is no doubt that it facilitated their betting in that they recorded the bets on sheets or slips of paper. Therefore the slips of paper were instruments of gaming within the meaning of Section 3.
21. The strongest argument taken by Messrs. Pugh and Camell who represented the two petitioners was that the learned Chief Presidency Magistrate did not come to a finding that the instruments of gaming were used for the profit or gain of petitioner M.A. Adams. It is true that there is no direct finding by the learned Magistrate that the petitioner Adams made profit or gain in managing the said club, although he came to the clear funding that he kept it as a common gaming-house. Under the definition in Section 3, a common gaming-house means any house kept or used for the profit or gain of the person keeping it, whether by way of charge of the use of such house, or otherwise howsoever. It was admitted at the Bar that petitioner M.A. Adams was secretary of the club at Rs. 300 a month and that he occupied the other rooms of the flat as his residence. It is therefore clear on the evidence that petitioner Adams made a profit by keeping the club. He ran the club for the purpose of attracting gamblers, and the club was used as a common gaming-house.
22. In our opinion therefore petitioner Adams has been rightly convicted under Section 44, Calcutta Police Act, and petitioner Ben Rose and other 14 persons were rightly convicted under Section 45 of the same Act. Having regard to the fact that this is the first conviction of the two petitioners we are of opinion that the sentence of imprisonment is uncalled for. In lieu of imprisonment we sentence petitioner Adams to a fine of Rs. 500, in default rigorous imprisonment for three weeks and petitioner Ben Rose to a fine of Rs. 200, in default rigorous imprisonment for one week.
23. The Police on arresting the accused men searched their persons and took away all money found on their persons amounting in all to Rs. 2,770 odd. The learned Magistrate acting under Section 48 ordered that the whole of this money be confiscated and credited to Government. In our opinion the order of confiscation of the cash money found on the persons of the accused men is not warranted by Section 48. That section provides that on conviction under Section 44 or Section 45 all the instruments of gaming found in the house shall be destroyed by order of the Magistrate, who may also order all or any of the securities for money and other articles seized, not being instruments of gaming to be sold and converted into money, and the proceeds thereof, with all money seized therein, to be forfeited or in his discretion, may order any part thereof to be returned to the persons appearing to have been severally thereunto entitled. It appears that the money seized were currency notes and coins in the pockets of the accused persons. It does not seem right in the circumstances that this should be confiscated. Mr. Camell has quoted the case of Maturwa reported in Maturwa v. Emperor, 1918 All 390 were Banerji, J., held that although instruments of gambling, etc., may be seized by the Police, there is no authority for the confiscation of the money found with the persons arrested. We order therefore that the money seized from the different accused persons be returned to them.