048-NLR-NLR-V-48-DINORIS-APPU-Appellant-and-MAHENDRAM-S.-I.-Police-Respondent.pdf
KEUNEMAN J.—Dinoris Appu v. Mahendram.
143
Present: Keuneman J.
DINORIS APPU, Appellant, and MAHENDRAM(S. I. Police), Respondent
844—M. C. Hambantota, 11,396.
Unlawful gaming—Common gaming place—Quantum of evidence■ necessary—Gaming Ordinance (Cap. 38), s. 22.
The accused, who were charged with unlawful gaming, had beenarrested without a search warrant. The ■■ evidence showed that theplace where the gaming was held was a garden in the vicinity of tworoads which were on opposite sides, but there was no proof that thepublic—in the wide sense in which that word is used—had access tothe place of gaming, although there was no physical obstacle in the wayof any individual walking from the public'road to the place of gaming.
Held, that the evidence was not strong enough to establish the factthat the place of gaming was a " common gaming place ” within themeaning of the term in section 22 of the Gaming Ordinance.
Held, further, that the fact that the persons found gaming came froma number of different villages was not, taken by itself, conclusive.
A
PPEAL against a 'conviction from the Magistrate’s Court,Hambantota.
A. Rajapakse, K.C. (with him S. R. Wijayatilake), for the 17thaccused, appellant.
J.G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
February 11, 1947. Keuneman J.—
This case is another instance of the difficulty of bringing home a chargeunder the Gaming Ordinance (Cap. 38) where the Police arrest without asearch warrant.
The facts disclose that a raiding party of policemen found about “ 30people seated in the garden in a circle and playing cards ”. First accusedshuffled the pack, 2nd accused cut the pack, and all the others took sidebets, placing money on the mats which were there. The Police rushed inand arrested 17 persons( including this accused who is a Headman.
The Crown argued that all these persons were guilty of the offence ofunlawful gaming. That there was gaming is beyond question, but thematter for decision is whether the gaming was unlawful. It is clear thatthe prosecution has not established that the gaming took place in or uponany “ place to which the public has access whether as of right or not ”,but it is argued that the gaming was held in a “ common gaming place ”,under section 22, viz., a place “ kept or used for betting or the playingof games for stakes and to which the public may have access ”.
The evidence is not quite clear as to the spot in the garden where thegaming was held. The Magistrate held that the garden was 100 yardsfrom Hospital Street and 75 yards from the Hambantota-Tangalla Road;these two roads being on opposite sides. There was no complete fenceround the garden separating this garden from the various premises ad-joining, but there were some fences and also a stile, while in some placesthere was scrub jungle and no regular fence.
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144KEUNEMAN J.—Dinoria Appu v. Mahendram.
I do not think this evidence is strong enough to establish the fact thatthe place was accessible to the public : —vide Burmester v. MuttusamyPerera v. Singho It has not been proved that the public—in the widesense in which that word is used—may have access to the place of gamingalthough there was no physical obstacle in the way of any individual walk-ing from the public road to the place of gaming.
The only other facts on which the prosecution relies are the number ofpersons found gaming and the fact that they came from a number ofdifferent villages. It is in evidence that the following day was “arrackissue day ” at a tavern not very far off, and that people from outlyingregions used to gather at this neighbourhood to procure the arrack. Thisfact, however^ is not decisive. It may mean that there were large numbersof the public assembled nearby or that a number of friends and acquaint-ances had gathered there. The fact that these persons came fromdifferent villages is also accounted for, and in any event that fact takenalone is not conclusive : vide Wittensleger v. Appuhamy .* In that case thefact that persons gathered together were of different castes and commu-nities was held not to be conclusive, taken by itself.
In the circumstances I allow the appeal and set aside the conviction andsentence of the 17t,h accused and acquit him. Acting in revision I also setaside the convictions of the 1st to the 16th accused who have not appealedand I acquit them.
Appeal allowed.
1 (1916) 19X.L. R. 153.
* (1921) 23 N. L. R. 154
• (1937) 39 M. L. B. 93.