# Firm and llluri Subbay_1a Chetty & Sons v. I he State of Andhra Pradesh

- **Citation:** [1964] 1 S.C.R. 765
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. Gajendba.Ga.Dkab, K. N. Wanchoo, M. Hidaya.Tulla.H, K. C. Dab Gupta, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/firm-and-llluri-subbay-1a-chetty-sons-v-i-he-state-of-andhra-pradesh-2812
- **Pages:** 11

## Headnote

•
Ultra
Virea-Principle
of-001Mlitution
of Ind ·
Arla. 13, '19, 21,-The United State of Gwalior, Indore and
Malwa (Madhya Bharat) Gambling Act, samvat 2006 (Madhya
Bharat Act No. 61of1949), ss. 6, 8.
The three appcllanta with five others were tried for offenceo
under s. 4of the United State of Gwalior, Indore and Malwa
(Madhya Bharat) Gamblin~ Act and sentenced to imprisonment. The Scssioiu Judge rejected their ''""'lCals. The High
1913
Firm and llluri
Subbay_1a Chetty &
Sons
v.
I he State of
Andhra Pradesh
Gajtndr11gadkar1 J.
1963
January, 25.
',, .' '1963
K"..Jwn Clumd"'
v.
State oj Madhya
Prad1sh
' .
766 SUPREME COURT REPORTS [1964) VOL.
Court rejected their revlsion
petititi~,;:~.~They eame to this
Court by Special Leave. · The only point urged· before this
c_ourt was that ss. 6 and 8" of the Gambling Act were ultra
~""! the Constitution and against the principles of natural
JUSl!ce and funda'llentals of criminal jurisprudence.
.
·
Held, that ss. 6 and 8 of th~ Act were not ultra vire&
the Constitution. ·.The Act is not unreasonable in its restrictions
··upon the fundamental rfa;hts of the people. There is nothing in
the definition of 'gamoling' to make it unreasonable or to ofrend
against any of the guaranteed rfa:hts. The definition of a .
•gaming . house'. is . ·no doubt wide and there is not only a
long li•t of places which come within the expression .'gaming
. hOtilie' but the term includes any place which answers the rest
of the descriptit>n.
In spite of this, there is nothing unreason•
able or which does not subserve ·the central purpose. The
Act provides safeguards . against vittimization of innocent
persons by putting certain. checks when· it provides for the.
detection and prosecution of offenders· against the Act. The
power to . enter and authorise the police to enter and search
places believed to be ~min~ houses is. given to _superior
officers who are expected to act reasonably and after due
satisfaction. M oreovet, the officer who enters the building and
seizes the articles ha,-to satisf~ the Court th~t his suspicions were
based on reasonable ground• and it i• only then that the
burden~is shifted to the accu\ed to prove his innocence .
.. Thou~h the word u-;ed ins. 6 is ''suspectirig", in actual proof
this suspicion must be
denii'l~trated to be reasonably based.
Considerin'."f the fa.ct that g:\mhling is an evil which is rampant
and gaming houses . flourish as. a prl"lfitable business and detec-
. tion of gambling is extremely difficult, the law to root out
· gambling cannot but be in the public interest. · Such a law
· must of necesdty provide for a special ·procedure. So. Ion~ as
it is not arbitrary and contains adequate saf1"''.1'Uards, it cannot
be succe,.fully a"ailed. The Act cont•in• sufficient ,.feguard.,
to ensure that th~re ij n'> dln~er t,, a1Y one except ·to, those
who are proved to the ,.tr.faction of the Court to keep a g•ming
house or who can be presumed, unless ·the contrary fa proved,
to be there for the purpo•e of\ gaming.
· CRillIINAL APPELLATE JURISDICTION·: Criminal
Appeal No. 47 of 1961.
· ·
·
· ·
Appeal bv special leave from the Judgment and
. order dated December 14, 1960, of the Madhya
Pradesh High Court (Gwalior Bench at Gwalior) in
Criminal Revision No. 91/59. ,
1 S.C.R.
SUPREME COURT REPORTS
767
R. L. Kohli and 0. L. Sarin, for the appellants.
I. N. Shroff, for the respondent.
1963. January 25.
The Judgment of the Court
was delivered by
196$
Kislwn Chand,r
v.
Stat1 of Madhya
Prad.1h
HIDAYATULLAH, J .-This is an appeal by spe·
Hid'!1"tullah, .J.
cial leave against an order of the Madhya Pradesh
High Court (Gwalior Bench), by which a criminal
revision filed by the three appellants was dismissed.
The three appellants with five others were tried for
offences under s. 4 of "The United State of Gwalior,
Indore and Malwa (Madhya Bharat), Gambling Act,
Samvat 2006", (Madhya Bharat Act No. 51 of 19411)
(Samvat 20-16). ,Krishnat:handra, the first appellant,
was also tried under s. 3 of the A

## Text

1 S.C.R.
SUPREME COURT REPORTS 765
whicn the Privy Council was concerned, and in
construing the said clause, the Privy Council observed
that "the phrase "made und~r this Act" describes the
provenance of the assessment : it does not relate to its
accuracy in point of law. The use of the machinery
provided by the Act, not the result of that use, is the
test."
These two Privy Council's decisions support
the conclusion that having regard to the scheme of
the Act, s. 18-A must be deemed to exclude the
jurisdiction of civil courts to entertain claim1 like the
present.
In the result, we must hold that the view taken
by the High Court is right and so, the appeal fails
and is dismissed. There would be no order as to
'°'''·
Appeal diamisaed.
KISHAN CHANDER
".
STATE OF MADHYA PRADESH
'
.
(P. B. GAJENDBA.GA.DKAB, K. N. WANCHOO,
M. HIDAYA.TULLA.H, K. C. DAB GUPTA and
J. C. SHAH, JJ.)
•
Ultra
Virea-Principle
of-001Mlitution
of Ind ·
Arla. 13, '19, 21,-The United State of Gwalior, Indore and
Malwa (Madhya Bharat) Gambling Act, samvat 2006 (Madhya
Bharat Act No. 61of1949), ss. 6, 8.
The three appcllanta with five others were tried for offenceo
under s. 4of the United State of Gwalior, Indore and Malwa
(Madhya Bharat) Gamblin~ Act and sentenced to imprisonment. The Scssioiu Judge rejected their ''""'lCals. The High
1913
Firm and llluri
Subbay_1a Chetty &
Sons
v.
I he State of
Andhra Pradesh
Gajtndr11gadkar1 J.
1963
January, 25.
',, .' '1963
K"..Jwn Clumd"'
v.
State oj Madhya
Prad1sh
' .
766 SUPREME COURT REPORTS [1964) VOL.
Court rejected their revlsion
petititi~,;:~.~They eame to this
Court by Special Leave. · The only point urged· before this
c_ourt was that ss. 6 and 8" of the Gambling Act were ultra
~""! the Constitution and against the principles of natural
JUSl!ce and funda'llentals of criminal jurisprudence.
.
·
Held, that ss. 6 and 8 of th~ Act were not ultra vire&
the Constitution. ·.The Act is not unreasonable in its restrictions
··upon the fundamental rfa;hts of the people. There is nothing in
the definition of 'gamoling' to make it unreasonable or to ofrend
against any of the guaranteed rfa:hts. The definition of a .
•gaming . house'. is . ·no doubt wide and there is not only a
long li•t of places which come within the expression .'gaming
. hOtilie' but the term includes any place which answers the rest
of the descriptit>n.
In spite of this, there is nothing unreason•
able or which does not subserve ·the central purpose. The
Act provides safeguards . against vittimization of innocent
persons by putting certain. checks when· it provides for the.
detection and prosecution of offenders· against the Act. The
power to . enter and authorise the police to enter and search
places believed to be ~min~ houses is. given to _superior
officers who are expected to act reasonably and after due
satisfaction. M oreovet, the officer who enters the building and
seizes the articles ha,-to satisf~ the Court th~t his suspicions were
based on reasonable ground• and it i• only then that the
burden~is shifted to the accu\ed to prove his innocence .
.. Thou~h the word u-;ed ins. 6 is ''suspectirig", in actual proof
this suspicion must be
denii'l~trated to be reasonably based.
Considerin'."f the fa.ct that g:\mhling is an evil which is rampant
and gaming houses . flourish as. a prl"lfitable business and detec-
. tion of gambling is extremely difficult, the law to root out
· gambling cannot but be in the public interest. · Such a law
· must of necesdty provide for a special ·procedure. So. Ion~ as
it is not arbitrary and contains adequate saf1"''.1'Uards, it cannot
be succe,.fully a"ailed. The Act cont•in• sufficient ,.feguard.,
to ensure that th~re ij n'> dln~er t,, a1Y one except ·to, those
who are proved to the ,.tr.faction of the Court to keep a g•ming
house or who can be presumed, unless ·the contrary fa proved,
to be there for the purpo•e of\ gaming.
· CRillIINAL APPELLATE JURISDICTION·: Criminal
Appeal No. 47 of 1961.
· ·
·
· ·
Appeal bv special leave from the Judgment and
. order dated December 14, 1960, of the Madhya
Pradesh High Court (Gwalior Bench at Gwalior) in
Criminal Revision No. 91/59. ,
1 S.C.R.
SUPREME COURT REPORTS
767
R. L. Kohli and 0. L. Sarin, for the appellants.
I. N. Shroff, for the respondent.
1963. January 25.
The Judgment of the Court
was delivered by
196$
Kislwn Chand,r
v.
Stat1 of Madhya
Prad.1h
HIDAYATULLAH, J .-This is an appeal by spe·
Hid'!1"tullah, .J.
cial leave against an order of the Madhya Pradesh
High Court (Gwalior Bench), by which a criminal
revision filed by the three appellants was dismissed.
The three appellants with five others were tried for
offences under s. 4 of "The United State of Gwalior,
Indore and Malwa (Madhya Bharat), Gambling Act,
Samvat 2006", (Madhya Bharat Act No. 51 of 19411)
(Samvat 20-16). ,Krishnat:handra, the first appellant,
was also tried under s. 3 of the Act. All the original
accused except one were convicted under s. 4 of the
Act and sentenced to one months' simple imprison·
ment.
Krishnachandra was convicted in addition
under s. 3 of the Act and sentenced to one months'
simple imprisonment.
The sentences in Krishnachandra's case were ordered to run concurrently.
All these persons appealed unsuccessfully to the
Court of Session. The three appellants then filed a
petition for revision' in the High Court. The High
Court also issued a notice under s. 439 of the Code of
Criminal Procedure to these appellants to show cause
why the sentences passed on them should not be
enhanced. The High Court by its order dated December 14, 1960, dismissed the revision petition filed
by the appellants and in addition to the.sentence of
imprisonment imposed a fine of Rs. 200 on each
count or counts for which they were originally convi·
cated. The Appellants asked for a certificate to app·
eal to this Court but it was refused by the High
Court.
The appellants, however, obtained special
leave from this Court and have filed the present
appeal.
1965
KUMn <.lwn:ft'
v.
Stnte of Mruih70
Prr·de,h
768
SUPREME COURT REPORTS [1964] VOL.
Only one point has been agrued before us and
it is that s. 6 of the Gambling Act is ultra vires the
Constitution and is against the principles of natural
justice and the fundamentals of criminal jurisprudence.
A similar contention has also been raised abouts. 8
of the Act.
The Madhya Bharat Act is almost a
replica of the corresponding Indian statute. Though
it diflt>rs slightly in its wording, the purport and
intent is almost the same.
There are three definitions in s. 2 of the Act which control the later provisions.
The expression "gaming" is defined to
include "wagering and betting" and the explanation
attached to the definition provides :-
"Any transaction by which a person in any
capacity whatever employs another in any
capacity whatever, or engages for another in
any capacity whatever, to wager or bet with
another person, and the collection or soliciting
of bets, receipt or distribution of winnings or
prizes in money or otherwise in
rt>spect of
wagering or betting or ~ny act which is intended to aid or facilitate wagering or betting or
such collection, soliciting, receipt or distribu·
tion, shall be deemed to be "gaming".
"Gaming house" is defined to mean-
"Any house,
room,
tent, enclosure,
space
vehicle, vessel or any place whatsover in which·
gaming takes place or in which instruments of
gaming are kept or used for gaming."
The expression "instruments of gaming" includes-
"anv article used or intended to be used as a
subject or means of gaming, any document
usccl or intended to be
u~ed as a register or
record or evidence of any gaming, the proceeds
of any gaming, and any winnings or prizes in
1 S.C.R.
SUPREME COURT REPORTS
769
money or otherwise distributed or intended to.
be distributed in respect of any gaming".
These definitions show that a gaming house· is
a place in which gaming takes place or in which
instruments of gaming are kept for me for gaming,
that is, for wagering or betting etc. or for the purpose of facilitating wagering or betting etc. Two
offences have been created by the Act affecting res·
pectively the keeper of a gaming hou<e and persons
found gaming or present for the purpose of gaming, ,
in a gaming house, Section 3 which creates the
offence affecting the keeper of a gaming house ·
provides as follows :-
"3. \\?hoever-
( a) opens, keeps or uses any house, room or
place for the purpose of a gaming house;
(b) being the owner or occupier of any such
house, room or place knowingly or wilfully permits the same to be opened,
occupied, kept or used by any other person
for the purpose aforesaid;
(c) has the care or management of, or in any
manner assists in conducting the business
of, any such house, room or place opened,
occupied, kept or used for the purpose
aforesaid;
(d) advances or·lurnishes money for the purpose
of gaming with persons frequenting any
such house, room or place;
shall on conviction be punishable with imprisonment which may extend to six months and
with fine : "
A proviso provides for enhanced prnalties
for the first, second, third or subsequent offences.
1963
KiJhan Chander
v.
Stat1 of Madhya
Pradefh
HidoJolullah, /.
J96J
Killian CU.dt<
••
Stau of MaM.70
Prothsh
HiiaJatullah, J.
770 SUPREME COURT REPORTS [1964) VOL.
Section 4 which makes gaming in a gaming house
an offence provides :
"4. \Vhoever is found in any gaming' house,
gaming or present for the purpose of gaming
shall,
on
conviction,
be punishable with
imprisonmrnt, which may extend to six months
and with fine."
A special presumption is provided as follows:-
'
"Any person found in any gaming house during
any gaming therein shall be presumed, until
the contrary is proved to have been there for the
purpose of gaming."
A proviso provides for enhanced penalties in the
same way as in s. 3.
Section fi gives powers to certain officers to
enter or to authorise police officers (not below the
rank of a sub.inspertor) to enter and search a gaming
he-use but the power is exercisable only if tbe officer
concerned "i< satisfied. upon credible information,
and afcer such inquirv as he may think necessary,
that there arc good grounds to believe that any house,
room, tent, enclosure. spaci-, vehicle, vessel or place
is used as a gaming house."
Section 6 which is
impugned in this appeal then provides as follows : -
"6. When any instrument of gaming has been
seized in any house,
room, tent, enclosure,
space, vehicle,
vessel 'or pla::e entered or
searched under the provisions of last preceding
section, or about the person of any of those
who are found therein and in the case of any
other thing so seized, if the Court is satisfied
that the. officer who entered or searched such
house, room. tent, enclosure,
space, vehicle,
vessel, or place had reasonable
.~ounds for
suspecting that the thing so seized was an
l S.C.R.
SUPREME COURT REPORTS
771
instrument of gaming, the seizure of such instrument or thing shall be evidence, until the
contrary is made to appear that such house,
tent, enclosure, space, vehicle, vessel or place is
used as a "gaming house and that the persons
found therein were then present for the purpose
of gaming although no gaming was actually
seen by the Magistrate or Police Officer."
Section 8 creates a special rule of evidence and
it provides :-
"8. It shall not be necessary, in order to
convict any person of any offence against any
of the provisions of sections 3 and 4 to prove
that any person found gaming was playing for
any money, wager or stake."
It has been amply proved in the present case
that on a search being made instruments of gaming
were found in the house and a presumption under
s. 6 was therefore drawn against the persons present
there.
The impugned sections are challenged under
Articles 19 and 21 of the Constitution. The former
Article is said to be voilated because the sections
unreasonably impair the right of assembly and the
right to hold and enjoy property. It is not contended
that gambling in the form of betting or wagering or
as explained in the explanation to "s. 2 (d) is not an
evil from which society needs to be protected. What
is complained of is the manner in which the
offences of keeping a gaming house ard gaming in a
g~ming house may be proved against the respective
offenders. It is contended that this proof largely
depends upon the suspicion of an officer and the
discovery
on search of innocent articles like playing
cards and dice and that added to these unreasonable
provisions, the burden of proof, which should always
1969
Kiilum Chand•"
v.
Stal• of Madh.
Prad1sh
Hirloyatullah1 J.
1963
tu~ Chmd"
Y.
r.11 of M<4li;
I ral,,/1
772 SUPREME COURT REPORTS [1964) VOL.
lie on the prosecution, is reversed and the alleged
off~nder is. rrquir:d to dear himself of the alleged
gmlt. It 1s submitted that the sections are unconsti·
tutional as
they offend Articles 19 and 13 of the
Constitution. It is
further submitted that in these
circumstances there is a breach of Article 21 as well.
!"he argument ba<ed on Article 21 need not be
separately noticed because if the impugned provisions
are found to be constitutional, the curtailment of
liberty wo1, Id not be except according to the procedure established
by law.
So the only point to
consider is whether the impugnei provisions of the
Act are so unreasonable as to lose the protection of
Clauses (3l. (4) and (5) of Article 19. The Act is a
pre Constitution measure and it can only be declared
void under Article t:J.
The Act is not challenged
on the ground that it was brynnd the competence of
the Legislat•ire which pa!'.sed it or that it has ceased
to be law otherwise than bv the alleged breach of
Articles 19 and 21.
Once it
is conceded that
gambling is an evil, and it is righth• so conceded
here, the interests of public order, morality or the
general public require that it be eradicated and the
onlv qni-stion which survives is whether the law made
to do this is unreasonable in its restrictions upon the
guaranterd rights.
In this connection what must be
established by the appellants is that an object which
is legitima•r in itsi-lf has
been achieved in
a
manner which amounts to an unreasonable curtailment of the guaranteed liberties.
In order to find
out whether the impugned
pr.wisions can be regarded as unreasonable in the
srnse explained it is nccessarv to consider them in
some rietail. We be.gin with the definitions. "Gaming"
is dt'fined to include wagering and betting which arc
th" commonest forms of gambling but the definition
leaws room for inclusion in the term other forms
which gambling might take.
·1 here is nothing in the
1 S.C.R.
SUPREME COURT REPORTS
773
definition to make it unreasonable or to offend
against any of the guaranteed rights.
Next comes
the definition of "gaming house". A house becomes
a gaming house if gaming takes place there or ins·
truments of gaming are kept there or used for gaming.
The definition is no doubt wide and there is not only
a long list of places which come within the expression 'gaming house' but the term includes any place
whatsoever which answers. the rest of the descrip"tion.
But here again there is nothing which is unreasonable
or which does not subserve the central purpose.
"Instruments of gaming" are next defined to include
articles used or intended to be used as a subject or
means of gaming, also documents, registers, records,
proceeds of gaming and prize money etc. The words
"used or intended to be used as a subject or means
of gaming" outline . the circumstances in which the
possession of articles becomes incriminatory under
the Act.
Having defined gambling, gaming house and
instruments of gaming, the Act provides safeguards
against victimisation of innocent persons by putting
in certain checks when it proceeds to provide for the
dete~tion and prosecution of offenders against the
Act.
The offences are the keeping of a gaming
house (s. :l), gaming in a gaming house (s. 4) and
gaming in places to which public have access (s. 12).
We are not concerned with the last.
Section 5
confers the powers to enter and authorise police to
enter and search places believed to be gaming houses.
This power is given to a District
Magistrate, a
sub-divisional magistrate or a police officer not below
the rank of a sub-inspector. The officer must be
satisfi~d, upon credible information and after such
inquiry as he may think necessary that there are good
grounds for belief that any place is used as a gaming
house before he makes a search. On entry the
officer is empowered to take the persons present there
into custody and to search them and to se::rch the
1963
v.
Stat1 of MadhJ•
Pradesh
HidqJatulliJb, J.
/9t3
· 'is&m CluJndtr
v.
'ate of Madhya
Pra<kslt.
i JidaJalulla/11 J.
774 SUPREME COURT REPORTS [1954] VOL.
place and seize all things reasonably suspected to
have ~e~n used for the purpose of gaming.
Pausing
here, It IS clear that the power is given to superior
officers who are expected to act reasonably and after
due satisfaction.
But the matter does not end there.
After the arrests and seizures have been made the
officer who entered the place and seized the articles
has to satisfy the Court that his suspicions were based
on' reasonable grounds aJ:tc! it is only then that the
burden is shifted
to the accused
to prove his
innocence.
Though the word used
in s. 6 i,
"suspecting" in actual proof this suspicion must be
demonstrated to be reasonably based. The safeguards,
thus, are-( a) the existence of credible information,
(b) the seizure of articles suspected to be instruments
of gaming which bear out the information on which
actmn is taken, and (c) proof to the satisfaction of
the Court that there are reasonable grounds for
holding that the articles seized are instruments of
gaming.
Once the house is shown to the satisfaction
of the Court to be a gaming house the law leaves any
one found in it during any gaming, to explain his
prcs~nce on pain of being presumed to be there for
gammg.
Considering the fact that gambling is an evil
and it is rampant, that gaming houses flourish as
profitable business and that detection of gambling is
extremely difficult, the law to root out gambling
cannot but be in the public interest.
Such a law
must of necessity provide fo; special procedure but
so long as it is not arbitrary and contains adequate
safeguards it cannot be successfully assailed.
In our
opinion the Act with which we arc concerned contains
sufficient safeguards to ensure that there is no danger
to any one except to those who are proved io the
satisfaction of the Court to keep a gaming house or
who can be presumed unless the contra~y be proved
to be there for the purpose of gaming. We are
I S.C.R.
SUPREME COURT REPORTS
775
satisfied that the impvgned provisions are constitutional. The appeal fails and is dismissed.
Appeal dismissed.
RAM BILAS SINGH & ORS.
v.
THE STATE OF BIHAR
(S. J. IMAM, K. SuBBA RAo, N. RAJAGOPALA
AYYANGAR, and J. R. MuDHOLKAR, JJ.)
Criminal
Trial-Unlawful
assembly-Acquittal of
accused-Conviction of less than five.,-Legality of-Indian
Penal Gode, s. 149.
The facts alleged by the prosecution were these :
The first appellant brought with him in a truck to the scene
of the occurrence a mob of 40 to 50 persons including the other
two appellants and four other persons who were acquitted by the
trial court. The first appellant fired a shot from the gun which
he was carrying which hit Laldeo Singh on the chest as a result
of which he fell down. Thereupon none of the acquitted
persons fired from his gun and the shot hit Laldeo Singh again.
Thereupon another of the acquitted persons fired a shot at Laldeo
Singh which killed him instantaneously. The first appellant fired
two shots at one Deva Singh who was hit on his thigh. The other
two appellants assaulted Deva Singh with lathis of the seven
persons charged, four were acquitted. The appellants were convi·
cted under s. 304 Part II read with s. 149 of the Indian Penal
Code by the trial court. On appeal the High Court altered
their conviction into one under s. 326 read with s. 149 of the
Indian Penal Code .but maintained the convictions under
s. 147 ands. 426 of the Indian Penal Code. It was contended
before the Supreme Court that as there was no appeal before
the High Court against the acquittal of the four acquitted
persons who were alleged to have constituted the unlawful
assembly along with the appellants there could be no finding
that there was an unlawful assembly of which appellants were
111cmbers and therefore, were liable for the acts of other members
1963
Kishon l hander
v.
Slate of Madhy•
Pradesh
flidayatullah. J.
Janaary, 29.