( 114 )
Present : Pereira J.DISSANAYAKE t>. FERNANDO.892—P. C. Negombo, 20,502.
Unlawful gaming—Comwon gaming place—Place used for cockfighling,
A place kept or used for cockfighting and to which the publichave access is a common gaming j>lace, although in the definitionof " common gaming place *’ in9 the , Gaming Ordinance, 1809,there is no mention of cockfighting.
IJfHE facts appear from the judgment.
A St. V. Jayewardene, for the accused, appellant;—The evidenceis not sufficient to show that the accused’s garden ^as-ysed as acommon gaining place. The presumption under section 10 doesnot arise here, as the • place was not searched under a warrant.
‘4 Common gaming place ” has been defined in the Ordinance asany place kept or used for betting or the playing of games forstakes, and to which the public may have access with or withoutpayment. The definition makes no mention of cockfighting.
The definition of unlawful gaming includes cockfighting ; bu.t thedefinition of common gaming place does not include cockfighting,It^ is clear that the Legislature did not intend to punish a personfor keeping a place for cockfighting, though it thought it desirableto punish persons who indulged in cockfighting for unlawful gaming.
No appearance for the respondent.
Cur. adv. vult.
December 3, 1913. Pereiba J.—
In this case there is, I think, on the whole, sufficient evidenceto show that the enclosure in the accused’s garden was used asa ” common gaming place. ” The presumptions provided for bysections 9 and 10 of “ The Gaming Ordinance, 1889, ” do not arise,because the police had no search warrant to enter into and searchthe enclosure, but there is evidence from which it is not difficult toconclude that the enclosure was used as a common gaming place.The mere fact that on the occasion of the entry of the police somemen ran away, and immediately thereafter there were indicationsin the enclosure that cockfighting had taken place there, is notsufficient to show that the place was a common gaming place, butit is sufficient to show that cockfighting had taken place there thatday. Then, there is the additional evidence< that the place had been
( H« )
used before for gaming, and that the men who ran away on theoccasion of the entry by the police were men frofn different villages,and this, with the other evidence already referred to, shows that theplace was used as a common gaming place. It has been arguedthat a place cannot be said to be a common gaming place by reasonof its being open to anybody to enter.it and indulge in cockfighting.1 cannot accede to this contention. True, in the definition of“ common gaming place ” in the Ordinance there is no referencemade to cockfighting, but the definition is not exhaustive. It laysdown not what “ common gaming place.” means, but what the termincludes. That being so, the position that a place'kept for any formof unlawful gaming to be carried on by anybody who chooses' toenter it is a “ common gaming place ” is not obnoxious to thedefinition given in the Ordinance. Now, cockfighting, it is laid downin the Ordinance, is "unlawful gaming,” whether the practised publiclyor privately. A place, therefore, kept for cockfighting would be acommon gaming place. The fact that cockfighting, even thoughpractised privately, is unlawful gaming, in my opinion, makes aplace kept for cookfighting all the more a ” common gamingplace.”
– I affirm the conviction.
DISSANAYAKE v. FERNANDO