# JAGAT SINGH KISHOR SINGH DARBAR ETC v. THE STATE OF GUJARAT

- **Citation:** [1979] 3 S.C.R. 33
- **Court:** Supreme Court of India
- **Decided:** 1979-02-06
- **Case number:** Criminal Appeal Nos. 126127 of 1972
- **Bench:** P. s. KAILASAM, D. A. Desai, A. D. KosiiAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagat-singh-kishor-singh-darbar-etc-v-the-state-of-gujarat-7796
- **Pages:** 8

## Headnote

33
Bon1bay PJ'ei•ention. of Gan1bli11g Act, 1887-S. 3(ii)-Scope of-Direct
,.relation lVitlz use of the premises or with instrument of gaming-If necessary
to bring the place withln the scope of the definition-Mere probability or
expectation of profit-If snfficient-Presun1ption under s. 1-When raised.
The term "common gaming house" has been defined in s. 3 of the Bombay
i:'Prevention of Gambling Act, 1887. Under cl. (i) of the section a house or
-pklce in which any of six different types of gaming enun1erated therein takes
place or in which instruments of gaming are kept or used for such gaming
would fall within the definition.
Clause (ii) of that section states that in the
·-case of any other form of gaming (a) any house, room or place whatsoever
in which any instn1ments of gaming \J.'fe kept or used (b) for the profit or
gain.of the person owning, occupying, using or keeping such house, etc., (c)
by way of charge for the use of such house, roon1 or instrument or otherwise
holvsoever, would be a common gaming house.
Certain instruments of gaming were seized by the po1ice from the premises
-of appellant no. 1 in both the appeals.
He was convicted
for
keeping a
common gaming house while the other appe11ants we:re convicted of an offence
under s. 5 of the Act.
On appeal, rejecting the appellants' contention that a mere expectation or
probability of profit arising from gaming, without establishing a direct relation with the use of the premises or v-:ith instruments of gaming, would not
·be sufficient to bring the p1ace within the scope of the definition, the High
:Court held that the purpose of occupying or using the premises must be such
profit or gain as meant a probability or expectation of profit or gain and not
necessarily a certainty of it.
The argument urged before the High Court was reiterated in appeal before
this Court.
Dismissing the appeals,
A
B
c
D
E
F
HEID : 1. The expression "or otherwise hO'-''Soever" is of
the
widest
·Omplitude and cannot be restricted to the words immediately
preceding it,
G
namely, "for profit or gain. . . . by way of charge for the use of the
pre-
· mises."
[37F]
2. For proving that a particular house, room or place was
a
common
·gaming house, it would be sufficient if it was shown that the house was one
in which instruments of gaming were kept or were used for the
profit ·or
gain of the person keeping or using such place, that is, where . the
person
"keeping or using the house knew that profit or gain would in all probability
result from the use of the instruments of gaming.
Profit or gain may not
·actually result from such use. Even the hope of making a profit out of the
H
A
8
c
D
E
F
G
' '
34
SUPRJ/ME COURT REPORTS
[1979] 3 s.c.R.
gambling would be sufficient to satisfy the definition. In a given
case
the·
occupier of a house may allow it to be used by the public for gambling and
he himself may take part in it in the hope of making profit although he may
not necessarily make it every time.
Such a hope would be sufficient to make
the house a common gaming house and the occupier liable for keeping such
a house. At the same time the prosecution must establish that the purpose
of keeping or using the instrun1ents was profit or gain, which may be done
either by showing that the owner was charging for use of the instruments of
gaming or for the use of the house, room or place or in any other manner
that may be possible having regard ·to the nature of the gan1e carried on.
[38E, 39E-Fl
3. The profit or gain and the other requirements mentioned in cl. (ii) of
the definition are a matter of peremptory presumption which has to be raised
by the court as soon as seizure of instruments of gaming from the place is
prorcd. Section 7 which allows a presumption to be raised against the accused, provides that seizure Of instruments of gaming from the premises shall
be evidence, until the contrary was proved, that they were used as a common
- gaming house and the persons found therein were present for the purp

## Text

JAGAT SINGH KISHOR SINGH DARBAR ETC.
v.
THE STATE OF GUJARAT
February 6, 1979
[P. s. KAILASAM, D. A. DESAI AND A. D. KosiiAL, JJ.]
33
Bon1bay PJ'ei•ention. of Gan1bli11g Act, 1887-S. 3(ii)-Scope of-Direct
,.relation lVitlz use of the premises or with instrument of gaming-If necessary
to bring the place withln the scope of the definition-Mere probability or
expectation of profit-If snfficient-Presun1ption under s. 1-When raised.
The term "common gaming house" has been defined in s. 3 of the Bombay
i:'Prevention of Gambling Act, 1887. Under cl. (i) of the section a house or
-pklce in which any of six different types of gaming enun1erated therein takes
place or in which instruments of gaming are kept or used for such gaming
would fall within the definition.
Clause (ii) of that section states that in the
·-case of any other form of gaming (a) any house, room or place whatsoever
in which any instn1ments of gaming \J.'fe kept or used (b) for the profit or
gain.of the person owning, occupying, using or keeping such house, etc., (c)
by way of charge for the use of such house, roon1 or instrument or otherwise
holvsoever, would be a common gaming house.
Certain instruments of gaming were seized by the po1ice from the premises
-of appellant no. 1 in both the appeals.
He was convicted
for
keeping a
common gaming house while the other appe11ants we:re convicted of an offence
under s. 5 of the Act.
On appeal, rejecting the appellants' contention that a mere expectation or
probability of profit arising from gaming, without establishing a direct relation with the use of the premises or v-:ith instruments of gaming, would not
·be sufficient to bring the p1ace within the scope of the definition, the High
:Court held that the purpose of occupying or using the premises must be such
profit or gain as meant a probability or expectation of profit or gain and not
necessarily a certainty of it.
The argument urged before the High Court was reiterated in appeal before
this Court.
Dismissing the appeals,
A
B
c
D
E
F
HEID : 1. The expression "or otherwise hO'-''Soever" is of
the
widest
·Omplitude and cannot be restricted to the words immediately
preceding it,
G
namely, "for profit or gain. . . . by way of charge for the use of the
pre-
· mises."
[37F]
2. For proving that a particular house, room or place was
a
common
·gaming house, it would be sufficient if it was shown that the house was one
in which instruments of gaming were kept or were used for the
profit ·or
gain of the person keeping or using such place, that is, where . the
person
"keeping or using the house knew that profit or gain would in all probability
result from the use of the instruments of gaming.
Profit or gain may not
·actually result from such use. Even the hope of making a profit out of the
H
A
8
c
D
E
F
G
' '
34
SUPRJ/ME COURT REPORTS
[1979] 3 s.c.R.
gambling would be sufficient to satisfy the definition. In a given
case
the·
occupier of a house may allow it to be used by the public for gambling and
he himself may take part in it in the hope of making profit although he may
not necessarily make it every time.
Such a hope would be sufficient to make
the house a common gaming house and the occupier liable for keeping such
a house. At the same time the prosecution must establish that the purpose
of keeping or using the instrun1ents was profit or gain, which may be done
either by showing that the owner was charging for use of the instruments of
gaming or for the use of the house, room or place or in any other manner
that may be possible having regard ·to the nature of the gan1e carried on.
[38E, 39E-Fl
3. The profit or gain and the other requirements mentioned in cl. (ii) of
the definition are a matter of peremptory presumption which has to be raised
by the court as soon as seizure of instruments of gaming from the place is
prorcd. Section 7 which allows a presumption to be raised against the accused, provides that seizure Of instruments of gaming from the premises shall
be evidence, until the contrary was proved, that they were used as a common
- gaming house and the persons found therein were present for the purpose of
gaming, although no gaming was actually s'een.
In the instant case there is
no evidence in rebuttal of the presumption. [40F-GJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 126127 of 1972.
(From the Judgment and Order dt. 21-4-72 of the Gnjarat High
Collrt in Criminal Revision App!n. Nos. 490-491 of 1971).
S. K. Dholakia and R. Ramachandran for the appellants.
S. P. Nayar and M. N. Shroff for the respondents.
The Judgment of the Court was delivered by
KosHAL, J. By this judgment we shall dispose of Criminal Appeals
Nos. 126 and 127 of 1972 both of which have been instituted on·
certificates granted under Article 134 (1 )( c) of the Constitution of
India by the High Court of Gujarat against the judgment dated April
21, 1972 of a Division Bench of that Court upholding the conviction
of each of the appellants under section 4 or section 5 of the Bombay
Pr"vention of Gambling Act 1887 (hereinafter referred to as
the
Bombay Act) and a sentence of imprisonment coupled with fine.
2. Appeal No. 126 of 1972 has been filed
by eight persons.
Appellant No. 1 has been convicted of an offence under section 4 of
the Bombay Act for keeping a common gaming house, while his seven
co-appellants were found guilty of an offence under section 5 of that
Act. In Criminal Appeal No. 127 of 1972, appellant No. 1 is the
same person who figures as appellant No. 1 in the former appeal and
the conviction recorded against him is one for an offence under section
4 or, in the alternative, under section 5 of the Bombay Act. His two
co-appellants have earned a conviction under. the section last mentioned ..
I' '
,._
)
' '
JAGAT SINGH v. GUJARAT (Koshal, J.)
35
3. The two appeals have arisen from Criminal Revisions Nos. 490
and 491 of 1971 both of which were dismissed by the High Court
through the impugned judgment. In Appeal No. 126 of 1972, appelJa;1t No. 1 was said to be keeping or using house No. 1408 situate in
Ward No. 1 of Himatnagar town as a common gaming house
and
appellants Nos. 2 and 3 were said to have been employed by him for
carrying on in that house the business of betting on Worli Matka
figures.
On a search by the police, appellants Nos. 2 to 8 were found
present in the house from which numerous betting slips and boards
indicating the opening and closing figures of Worli Malka betting were
recovered.
A personal search of appellants Nos. 2 and 3 yielded
col1l1~erfoils of the said slips.
The allegations against the three appellants in criminal appeal
No. 127 of 1972 were that all of them were found present for the
purpose of gaming in the said house which was, as already stated, being
run by appellant No. 1 as a common gaming house.
4. The only contention raised on behalf of the appellants before
the High Court was that the said house had not been proved to be a
"common gaming house" within the meaning of tbe definition of that
expression occurring in section 3 of the Bombay Act. That definition
runs i:hus:
'111 this Act, "common gaming-house" means-
( i) in the case of gaming-
( a) on the market price of cotton, opium or other
commodity or on the digits of the number used
is stating such price, or
(b) on the amount of variation in the market price
of any such commodity or on the digits of the
number used in stating the
amount of such
variation, or
( c) on the market price of any stock or share or on
the digits of the number used in stating such
price, ~r
( d) on the occurrence or non-occurrence of rain or
other natural event, or
( e) on the quantity of rainfall or on the digits of the
number used in stating such quantity, or
A
B
c
D
E
F
G
(f) on the pictures, digits or fignres of one or more
8
playing cards or other documents
or objects
bearing numbers, or on the total of such digits
.B
c
D
E
F
G
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36
SUPREME COURT REPORTS
[1979] 3 s:c.R.
or figures, or on the basis of the occurrence or
non-occurrence of any uncertain future event, or
on the result of any draw, or on the basis of the
sequence or any permutation or combination of
such pictures, digits, figures, numbers, events or
draws,
any house, room or place whatsoever in which such
gaming takes place or in which instruments of gaming
are kept or used for such gaming :
(ii) in the case of any other form of gaming, any house,
room or 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 or place by way of charge for the use of
such house, room or place or instrument or otherwise howsoever."
Clause (i) of the definition is obviously inapplicable to the cases in
hand and the plea of the prosecution has throughout been that the
house in question squarely falls within clause (ii) thereof. This plea
was challenged before the High Court on behalf of the appellants with
the contention that the house abovementioned had not been shown to
be kept for use "for the profit or gain of the person owning, occupying
........ " because, according to their learned counsel, the profit or
gain mentioned in the definition must have a direct relation with the
use of the premises or with the instruments of gaming and a mere
expectation or probability of profit arising from gaming itself would
not be sufficient to bring the place within the definition of a common
gaming house. The High Court noted that there was a clear distinction
between the language employed in the two clauses· of the definition so
that while the element of profit or gain of the person owning or occupying the premises in question was immaterial under clause (i), it was an
essential requirement of clause (ii) which deals with forms of gaming
not covered by sub-clauses (a) to (f) of clause (i). The High Court
therefore analysed the provisions of clause (ii)• and formed the opinion
that the expression "or otherwise howsoever" occurring therein had the
widest amplitude and did not take its colour from the immediately preceding portion of the clause which employs the words "by way of
charge for the use of such house, room or place or instrument".
Discussing the matter further the High Court was of the opinion that
the uqnirement of the expression "for the profit and gain of the person
owning, occupying ........ " was that the purpose of occupying or
using the premises must be such profit or gain as meant a probability
--y·
•
I
t '
. '
JAGAT SINGH v. GUJARAT (Koshal, J.)
37
or expectation of p.rofit or gain and not necessarily a certainty of it
and that the expression would embrace even a case where the keeper
of the premises expected to gain by the process of gaming itself. In
coming to this conclusion, the High Court relied upon two Division
Bench judgments of the Bombay High Court reported in Emperor v.
Daltatraya Shankar Paranjpe and another(') and Emperor v. Chimanlal Sankalchand(2) and rejected as untenable an opinion to the contrary expressed in some Allahabad cases and a single Bench decision
of the Bombay High Court in State v. Vardilal Natuchand, (Criminal
Appeal No. 551 of 1964 decided on the 14th of January 1965).
5. The argument raised before the High Court on behalf of the
appellants has been reiterated before us by their learned counsel, Shri
S. K. Dholakia, but on a consideration of the
definition extracted
above, we cannot agree with him. It is common ground between the
parties that the present case is not covered by clause (i) of the definition, ~o that what has to be considered is the language of clause (ii)
thereof.
For the applicability of the clause last mentioned, the following co"liitions have to be fulfilled :-
(1) Instruments of gaming must be kept or used in the
premises in question.
(2) The keeping or· using of the instruments
aforesaid
must be for the profit or gain of the person owning,
occupying, using or keeping such premises.
(3) Such profit or gain may be by way of charge for the
use of the premises or of the instruments or in any
other manner whatsoever.
We fully agree with the High Court that the expression "or otherwise howsoever" is of the widest amplitude and cannot be restricted
in its scope by the words immediately preceding it which Jay down
that the profit or gain may be by way of charge for the use of the premises.
In this connection we may usefully quote from the judgment
of Shah, Acting C.J., who delivered the judgment of the Division
Bene!. in Emperor v. Dattatraya Shankar Paran;pe, (Supra).
"It is essential for the prosecution under this definition
to establish that instruments of gaming were kept or used in
the house, room or place for profit or gain of the person
owning, occupying, using or keeping the house,
room
or
place. It may be done by establishing that the persori did
so either by a charge for use of the instruments of gaming
or of the house, room or place, or otherwise howsoever. The
<n 25 Bombay Law Reporter 1089 ~ A.I.R. 1924 Bombay 184
(2) 47 Bombay Law Reporter 75 ~ A.I.R. 1945 Bombay 305. ·
A
B
c
D
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SUPREME COURT REPORTS
(1979] 3 s.c.a.
expression "otherwise howsoever" appears to be very comprehensive, and does not suggest any limitation, such as is
contended on behalf of the accused."
..........................
. . . . . . . . . . . . . . . . . . . . . . . . . .
"We have heard an interesting argument on the question
as to how far the words justify the somewhat restricted meaning which has been put upon the definition by the learned
Judge of the Allahabad High Court; and after a careful
consideration cf the arguments urged on either side,
and
with great respect to the learned Judges, I have come to the
conclusion that the words of the definition which we have to
construe here would not have their full meaning if we were
to accept the narrow construction.
I do not think that on
a proper construction of the definition the prosecution can
be restricted for the purpose of proving that a particular
honse, room or place is a common gaming house, to the twp
alternatives mentioned in the case of
Lachchi
Ram
v.
Emperor('). It is sufficient if the house is one in which
instruments of gaming are kept or used for the profit or gain
of the person keeping or using such place, i.e., where the
person keeping or using the house knows that profit or gain
will in all probability resnlt from the use of the instruments
of gaming.
The profit or gain may not actnally result from
such use.
But if profit or gain is the probable and expected
result of the game itself and if that is the purpose of keeping
or using the instrnments, it would be .sufficient,
in
my
opinion, to bring the case within the scope of the definition.
At the same time it is clear that the prosecution must establish that the purpose is profit or gain.
This may be done
either by showing that the owner was charging for use of the
instruments of gaming or for the use of the house, room or
place, or in any other manner that may be possible under
the circumstances of the case, having regard to the nature of
the game carried on in that house."
The opinion of Shah, Acting C.J., was noted with approval in
Emperor v.
Chimanlal Sankalchand (supra), the reasoning adopted
in which may be reproduced with advantage:
fJ
"Lachchi Ram's case was considered by a Division Bench
of this Court in Emperor v. Dattatraya (1923) 25 Bombay
(I) A.I.R. 1922 All. 61.
. ---r ,.
1
f
y
•
\
' '
JAGAT SINGH v. GUJARAT (Koshal, J.)
Law Reporter (1089) and was dissented from.
It was held
that to constitute a common gaming house it was sufficient
if it was one in which instruments of gamrng were kept or
used for the profit or gain of the person keeping or using
such place, i.e., where the person keeping or using the house
knew that profit or gain would in all probability result from
the use of the instruments of gaming.
The profit or gain
may not actually result from such use.
But if profit or gain
is the probable and expected result of the game itself and
if that is (he purpose of keeping or using the instruments,
it would be sufficient to bring the case within the scope of the
·definition.
"It is argued by Mr. Pochaji on behalf of the accused
that even in that case it was observed that 'the prosecution
must establish that the purpose was profit or gain and tha1
that might be done either by showing that the owner was
·charging for the use of the instruments of gaming or for the
use of the room or place or in any other manner.' The
words 'or in any othea- manner,' (which were used there
instead of the words appearing at the end of the definition'
·•or otherwise howsoever') cannot be regarded as restricting
·the profit or gain of the owner or occupier of the house to
profit or gain in a manner ejusdem genea-is with what pre-
·cedes those words, and hence even the hope of making a
profit out of the gambling itself is suflicient to satisfy the
-requirement of the definition of common gaming house. It
may happen that the occupier of a house may allow it to be
used by the public for gambling and he. himself may take
part in it in the hope of making a profit, although he may not
necessarily make it every time.
Such a hope is sufficient to
make the house a common gaming house and the occupier
liable for keeping such a house."
We fully agree with the interpretation of the definition of the te.rm
"'common gaming house" occurring in section 3 of the Bombay Act
as propounded in the two Bombay authorities cited above, as also iii
the impugned judgment, that interpretation being in conformity with
ihe unambiguous language employed by the legislature.
The opinion
'lo the contrary expressed in Lachchi Ram's case (supra) and in either
decisions is found to be incorrect.
6. The learned counsel for the appellants concedes that if
the
interpretation placed on clause (ii) of the definition by the impugned
judgment be upheld, t}le conviction of the appellants in the two appeals
A
B
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D
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G
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A
B
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40
SUPREME COURT REPORTS
[1979] 3 s.c.R •.
is well-founded.
However, we ma}' state that there. is anothe.r go~'
reason for up holding the conviction and that flows from the presumption which has to be raised under section 7 of the Bombay Act which>
states:
"When, any instrument of gaming has been seized in any
house, room of place entered under section 6 or about the
person of any one found therein, and in the case of any
other thing so seized if the conrt is satisfied that the Police
Officer who entered snch house, room or place had reasonable grounds for suspecting that the thing so seized was an
instrument of gaming, the seizur() of such instrument or thin,g
shall be evidence, until the contrary is proved, that such
house, room or place is used as a common gaming-house
and the persons found therein were then present for th~ purpose of gaming, although no! gaming was actually seen by
the Magistrnte or the Police Officer or by any person acting
under the authority of either of them:
·
Provided that the aforesaid presumption shall be made,
notwithstanding any defect in th~ warrant or order in pnrc
suance of which the house, room or place was eniered under
section 6, if the Court considers the defect not to be a
material one.''
It is not disputed that instruments of gaming were seized from the
premises in question in both the appeals. That circumstances, according to the section, "shall be evidence, until the contrary is proved, that
such house, room or place is used as a comon gaming-l1ouse and the
persons found therein
were present for the
purpose of
gaming,
although no gaming
was actually seen .......... " . The profit
or
gain mentioned in clause (ii) of the definition and also the other requirements of tliat clause are a matter of peremptory presumption
which has to be raised by the court as soon as the seizure of instruments of gaming from the place in question is proved, as is the case
here.
Admittedly, there is no evidence in reouttal of the presumption
which must therefore be raised and which furnishes a good basis for
the conviction of the appellants.
7. In the result both the appeals fail and are dismissed.
P.B.R.
Appeals dismissed.
·~
-,
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