# SINDW LOHANA CHAITHRAM v. THE STATE OF GUJARAT

- **Citation:** [1967] 3 S.C.R. 351
- **Court:** Supreme Court of India
- **Decided:** 1967-03-31
- **Case number:** Criminal Appeal No. 13 of 1964
- **Bench:** R. S. Bachawat, J. M. Shblat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sindw-lohana-chaithram-v-the-state-of-gujarat-4054
- **Pages:** 5

## Headnote

Bombay Prevemio1< of Gambling Act, 1887, s.
6(1) (i) and s, 7.-
Auihority lo Deputy Superintendent of Police to issue search warrant to
sub-inspector-Notification conferring such authority whether must men1io11 Deputy Superintendent by >iume-Presumption under s.
7 when
nrises,
Under s. 6(l)(i) of the Bombay Prevention of Gambling Act, 1887,
a search warrant can be issued by a Deputy Superintendent of Police
especially empowered in this behalf. By a notification dated January 22,
1955 the Saurashtra Government empowered specially
certain AsSistant
Superintendents and Deputy Superintendents of Police Porbandar Divi·
sion, Porbandar, to authorise by issue of special warrants in each case
a police officer not below the rank of sub-inspector of police to do tibe
various things necessary in order to raid a house when the police officer
suspected gaming to be carried on and which house room or place was
suspected as being used as a common gaming house. The appellant's
house was raided by a sub-inspector of police and on the basis of incriminating evidence the appellant and six others were
charged under
ss. 4 and 6 of the Act. At the trial the accused contended that Shri
Pandya the Deputy Superintendent of Porbandar who issued the search
warrant was not authorised to do so and accepting their plea the magis·
trate acquired them.
The High Court however took the opposite view
and convicted the accused.
The appellant came to this Court by special
leave.
HELD : (i) When a power is conferred on a person by name or by
virtue of his office the individual designated by name or as the holder
of the office for the time being is empowered specially.
Judged by this
test the notification· dated January 22, 1955 specially empowered
Shri
Panclya holder of the office of the Deputy Superintendent of Police, Porbandar to issue the search warrant under s. 6.
[353F-G]
Emperor v. Udlto and Ors., A.J.R.
1943
Sind.
107,
E111peror v ..
Sav/aram Kaslii1uirh Joshi, 49 B.L.R, 798, Aluga Pillai v. E111peror, A.I.R.
1924 Mad. 256, Mahomad Kasi111 & Am•. v. Emperor, A.l.R. 1915 Mad.
1159, State of Mysore v. Kashambi, ( 1963) 2 Cr. L.J. 226, State v.
illdlwhir Clietri, A.J.R. 1953 Assam 35, K. N. VijayO/l v. State,
J.L.R.
1953 Trav. Cochin 514 and Po/ubha Vajub/la & Anr. v. Tapu Ruda, A.J.k.
1956 Saurashtra 73, referred to.
(ii) The· seizure of instruments of gaming in the appellant's house
under s. 6 raises a presumption under s. 7 that the hoU&e was used as
a common gaming house and the persons found thereia '"''ere then present for the purpose of gaming.
In applying this artificial presumption
the court should act with circumspection. Playing cards can be kept and
used for innocent pn-;time.
The presun1ption can he rebutted if from
the prosecution evidence itself it is apparent tho.t there was a reasonable
probability of the playing cards not being kept or used as means of gaming or for profit or gain of the occupier ot t.he house.
In the present case
the appellant could not successfully rebut the presumption.
[354E-HJ
'
362
SUP&BMB COURT Rl!PORT5
[1967] 3 s.c.R.
No prejudice had been caused to the appellant by the production of
the notification dated January 22, 1955 for the first time at the appellate
1taae
[3SSAJ

## Text

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SINDW LOHANA CHAITHRAM
v.
THE STATE OF GUJARAT
March 31, 1967
[R. S. BACHAWAT AND J. M. SHBLAT, JJ.]
Bombay Prevemio1< of Gambling Act, 1887, s.
6(1) (i) and s, 7.-
Auihority lo Deputy Superintendent of Police to issue search warrant to
sub-inspector-Notification conferring such authority whether must men1io11 Deputy Superintendent by >iume-Presumption under s.
7 when
nrises,
Under s. 6(l)(i) of the Bombay Prevention of Gambling Act, 1887,
a search warrant can be issued by a Deputy Superintendent of Police
especially empowered in this behalf. By a notification dated January 22,
1955 the Saurashtra Government empowered specially
certain AsSistant
Superintendents and Deputy Superintendents of Police Porbandar Divi·
sion, Porbandar, to authorise by issue of special warrants in each case
a police officer not below the rank of sub-inspector of police to do tibe
various things necessary in order to raid a house when the police officer
suspected gaming to be carried on and which house room or place was
suspected as being used as a common gaming house. The appellant's
house was raided by a sub-inspector of police and on the basis of incriminating evidence the appellant and six others were
charged under
ss. 4 and 6 of the Act. At the trial the accused contended that Shri
Pandya the Deputy Superintendent of Porbandar who issued the search
warrant was not authorised to do so and accepting their plea the magis·
trate acquired them.
The High Court however took the opposite view
and convicted the accused.
The appellant came to this Court by special
leave.
HELD : (i) When a power is conferred on a person by name or by
virtue of his office the individual designated by name or as the holder
of the office for the time being is empowered specially.
Judged by this
test the notification· dated January 22, 1955 specially empowered
Shri
Panclya holder of the office of the Deputy Superintendent of Police, Porbandar to issue the search warrant under s. 6.
[353F-G]
Emperor v. Udlto and Ors., A.J.R.
1943
Sind.
107,
E111peror v ..
Sav/aram Kaslii1uirh Joshi, 49 B.L.R, 798, Aluga Pillai v. E111peror, A.I.R.
1924 Mad. 256, Mahomad Kasi111 & Am•. v. Emperor, A.l.R. 1915 Mad.
1159, State of Mysore v. Kashambi, ( 1963) 2 Cr. L.J. 226, State v.
illdlwhir Clietri, A.J.R. 1953 Assam 35, K. N. VijayO/l v. State,
J.L.R.
1953 Trav. Cochin 514 and Po/ubha Vajub/la & Anr. v. Tapu Ruda, A.J.k.
1956 Saurashtra 73, referred to.
(ii) The· seizure of instruments of gaming in the appellant's house
under s. 6 raises a presumption under s. 7 that the hoU&e was used as
a common gaming house and the persons found thereia '"''ere then present for the purpose of gaming.
In applying this artificial presumption
the court should act with circumspection. Playing cards can be kept and
used for innocent pn-;time.
The presun1ption can he rebutted if from
the prosecution evidence itself it is apparent tho.t there was a reasonable
probability of the playing cards not being kept or used as means of gaming or for profit or gain of the occupier ot t.he house.
In the present case
the appellant could not successfully rebut the presumption.
[354E-HJ
'
362
SUP&BMB COURT Rl!PORT5
[1967] 3 s.c.R.
No prejudice had been caused to the appellant by the production of
the notification dated January 22, 1955 for the first time at the appellate
1taae
[3SSAJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
13 of 1964.
Appeal by special leave from the judgment and order dated
August 16, 1963 of the Gujarat High Court in Criminal Appeal
No. 154 of 1962.
Daniel A. Latifi and K. K. Sinha, for the appellant.
Hans Raj Khanna and R. N. Sachthey for R. H. Dhebar, for
the respondent.
The Judgment of the Court was delivered by
Bachawat, J. The appellant and six other persons were charged under ss. 4 and 5 of the Bombay Prevention of Gambling Act
1887. The sub-inspector of police Shri Anjaria received information that the appellant was keeping a common gaming house. He
obtained a special search warrant from the Deputy Superintendent
of Police, Porbandar, Shri S. M. Pandya, and raided the appellant's house in Bantwa on June 4, 1961 at 1 p.m. The raiding
party found the door leading to the upper floor closed. The inmates pressed against the door from the inside and did not open
it until a blacksmith broke open the latch. Shri Anjaria seized torn
and burnt pieces of playing cards lying on the floor of the central
room, two packs of cards from a wall cabinet, some burnt cards
lying on the floor and in the folds of a bed in the drawing room,
four jokers and three packs of cards from trunks in the kitchen,
some cash, burnt cigarette ends, bidis and matches and empty
cigarette cases.
All the accused were found in the upper f!o8r.
The appellant as the occupant of the house was charged under s. 4
of the Act and the other six accused were charged under s. 5 of
the Act.
The learned magistrate refused to raise a presumption
under s. 7 of the Act on the ground that Shri Pandya was not specially empowered by name to issue a search warrant. He acquitted all the accused.
On appeal, the High Court held that Shri
Pandya as the deputy superintendent of police, Porbandar was specially empowered to issue the search warrant and the prosecution
was entitled to the benefit of the presumption under s. 7. The High
Court convicted the appellant of the offence under s. 4 of the Act
and sentenced him to simple imprisonment for one month. The
High Court convicted the other six accused under s. 5 of the Act
and sentenced each of them to pay a fine of Rs. 200, in default
simple imprisonment for one month. The present appeal was filed
by the appellant by special leave.
A search warrant under s. 6(1)(i) of the AGt can be issued by a
"Deputy Superintendent of Police especially empowered by the
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LOHANA CHAITHRAM v. GUJARAT (Bachawat, J.)
353
State Government in this behalf'. By a notification dated J anu·
ary 22, 1955, the Saurashtra government empowered specially cer·
tain assistant superintendents and deputy superintendents of police
including the deputy superintendent of police, Porbandar Division.
Porbandar, to authorise by issue of special warrants in each case a
police officer not below the rank of a sub-inspector of police to do
the various things necessary in order to raid a house where the
police officer suspected gaming to be carried on and which house,
room or place was suspected as being used as a common gaming
house. The magistrate relying upon Emperor v.
Udho and
others(1 ), held that under s. 6, the officer must be specially empowered by name. The High Court relying on Emperor v.
Savlaram Kashinath Joshi,(') held that an officer may be specially
empowered under s. 6 either by name OD in virtue of his office.
It is because of the conflict of opinion between the Sind and the
Bombay decisions that special leave was granted in this case.
Section 15 of the Bombay General Clauses Act 1904 shows
that a person may be appointed to execute any function either by
name or by virtue of office. A person may therefore be empowered by name or by virtue of his office of deputy superintendent of
police to issue a special search warrant.
Sec. 6 of the Bombay
Prevention of Gambling Act requires that the deputy superintendent of police must be "specially empowered" to issue the warrant.
In Emperor v. Udho and ·others( 1), the expression "specially
empowered" was interpreted to mean specially empowered
by
name and not by virtue of his office, and an authorization of "the
deputy superintendent of police, Rohri" was said to be insufficient
for the purposes of s. 6. This decision does not lay down the
correct test.
A person may be specially empowered not only by
name but also by virtue of his office.· In Emperor v. Savlaram
Kashinath Joshi( 2 ) it was rightly held that a notification authorizing the deputy superintendent of police of the Poona city to issue
a search warrant under s. 6 specially empowered the holder of
that office by virtue of his office to issue the warrant. We think
that where power is conferred on a person by name or by virtue
of his office, the individual designated by name or as the holder
of the office for the time being is empowered specially. Judged by
this test, the notification dated January 22, 1955, specially em·
powered Shri Pandya as the holder of the office of the deputy
superintendent of police, Porbandar, to issue the search warrant
under s. 6.
For the meaning of the expression "specially empowered" reference is often made to s. 39(1) of the Code of Criminal Procedure
which provides "in conferring powers under this Code; the State
Government may by order, empower persons specially by name or
(I} A.l.R. 1943 Sind 107.
(2) 49 B.L.R. 798.
3S4
SUPREME COURT REPORTS
[1967] 3 S.C.R.
in virtue of their office or dasses of officials generally by their offiA
cial titles". In Aluga P{/la/ v. Emperor('), it was rightly held that
an authorization of the second class magistrate of Thirumangalam
to try certain cases was a special empowering of the person holding
that office by virtue of his office within the meaning of s. 39(1).
On the question whether a notification empowering all magistrates of a certain class to try certain cases can be said to empower
specially every magistrate of that class to try those cases, there is a
conllict of opinion, see Mahomad Kasim and another v. Emperor('), State of-Mysore v. Kashambi( 8 ). On the further quesB
tion whether a magistrate should be regarded as an office and
not as an official for the purposes of s.
39 (l) of the Ccide of
Criminal Procedure, there is a sharp conflict of opinion, see · C
State v. Judhabir Chetri('), K.
N.
Vijayan v. State(')
and
Polubha Vajudha and Anr. v. Tapu Ruda(").
We do not express any opinion on those questions, as it is not the practice of
this Court to express opinion on questions which do not arise for
decision. For the purpose of this case, it is sufficient to hold that
a notification conferring power on the deputy superintendent of
police of Porbandar to issue a search warrant specially empowers
the holder of that office by virtue of his office to issue the warrant.
We hold that Shri Pandya as the holder of the office of the:
deputy superintendent of police, Porbandar was specially empowered under s .. 6 of the Bombay Prevention of Gambling Act by the
notification of the Saurashtra government dated January 22, 1955.
It is conceded that the notification continued to be in force after
the merger of Saurashtra with the State of Bombay. The seizure
of instruments of gaming in the appellant's house entered under
s. 6 raises a presumption under s. 7 that the house was used as a
common gaming house and the persons found therein were then
present for the purpose of gaming. In applying this artificial presumption the Court should act with circumspection. Playing cards
may be kept and used for innocent pastimes. The presumption can
be rebutted if from the prosecution evidence itself it is apparent that
there was a reasonable probability of the playing cards not being
kept or used as means of gaming or for the profit or gain of the
occupier of the house.
In the present case, the appellant could
not successfully rebut the presumption. The resistance to the entry
of the sub-inspector and the attempt to burn, destroy and conceal
the playing cards fortified the presumption. The explanation that
the appellant had invited friends and relatives on the occasion of
his son's betrothal was not convincing. We do not find any compelling reason for interfering with the findings of fact by the High
Court in this appeal under Art. 136 of the Constitution.
(I) A.l.R. 1924 Mad, 256.
(2) A.LR. 1915 Mad. 1159.
(3) (1963] (2) Cr.L. J. 226.
(4) A.T.R. 1953 Assam 35.
~) [1953] I.L.R. Trav.-Co 514.
(6) A.1.R. 1956 Saurashtra 73.
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LOHANA CHAITHRAM v. GUJARAT (Bachawat, I.)
355
No prejudice was caused to the appellant by the production of
the notification dated January 22, 1955 for the first time at the
appellate stage. His contention in the trial court was that such a
notification was not sufficient for raising the preswnption under
s. 7. This argument was not tenable. He had ample opportunity
for rebutting the presumption arising under s. 7. Nor did be ask
the High Court to give him any further opportunity for this purpose.
Counsel sought to argue that the search warrant was invalid as it
did not ex-facie set out the authority under which it was issued.
The point was not taken either in the High Court or in the special
leave petition. We therefore indicated that we will not allow this
point to be raised. The High Court rightly convicted the appeDant
under s. 4 of the Act.
In the result, the appeal is dismissed.
G.C.
Appeal dismissed.