Present: Jayewardene A.J.NAMBIAR v. WIJEYWARDENE.
445—P. C. Colombo, 35,208.
Unlawful gaming—Entering premises without a search warrant—Proofof betting by specific acts.
Where a gaming place is entered without a warrant, a chargeof unlawful gaming can be made out against an accused persononly by proof of some specific acts of gambling or betting againsthim.
PPEAL from a conviction by the Police Magistrate of Colombo.
The accused was convicted of unlawful gaming'by playing agame called “ Baby” and sentenced to pay a fine of Rs. 50, in defaultto undergo three weeks’ rigorous imprisonment. On behalf of theaccused it was urged that the prosecution had failed to prove thatthe premises in question were a common gaming place, or that theaccused was seen playing a game for a stake.
J. 8. Jayewardene, for appellant.
( 31 )
August 21, 1924. Jayewabdene A.J.—1924.
In this case the accused, appellant, has been convicted of un- Nambiar v.lawful gaming by playing a game called “ Baby ” for money stakes Wijeywar-and sentenced to pay a fine of Rs. 50, in default to undergo three deneweeks’ rigorous imprisonment. On behalf of the accused it iscontended that the prosecution has failed to prove that the placein question was a common gaming place within the meaning of theGaming Ordinance, or that the accused was seen playing a game fora stake. The land on which the gaming took place is an openland and is the private property of the accused. The gardenwas not entered under a warrant under section 9 of the Ordinance.
So that no presumption arises from the fact of the accusedbeing found amongst other gamblers at the time the gamblingwas going on. I will consider the second point taken first, namely,whether the prosecution has proved any specific act of gam-bling against this accused. It has been laid down in several casesthat for a conviction under the Gaming Ordinance there should beproof of betting or playing a game for a stake, and when thepremises are entered otherwise than under a warrant, it must beshown that each accused committed some specific act of betting orplaying a game for a stake. Now, in this case there is evidencewhich has been accepted by the Magistrate that some personswere seen seated in a circle on the accused’s land, and that theaccused was one of them. A pack of cards and some money havebeen produced which were said to have been found at the place ofgambling. As regards this accused, the Police Sergeant wholed the raid is unable to identify him. He has been identifiedby two other constables, whose evidence merely amounts tothis : that they saw the accused playing ; for the Police ConstableAndiris says: “I saw this accused playing, and I saw him runningtowards the Kelanii-ganga,” and the other Police Constable Levinissays I'saw accused and about fifteen others playing “ Baby ”and we arrested three accused. This accused ran away andescaped.” But it has been held that mere general evidence ofthat kind is not sufficient to convict a person of unlawful gamingwhere the premises are entered otherwise than under a warrant.
As was pointed out by De Sampayo J. in the case of Banda v. Siyaiu1where advantage has not been taken of section 9 and a warrantobtained for the purpose of entering a place, a charge of gaming canonly be made out against the accused by proving some specific actsof betting or playing against them. “ This,” he added, “ has beenpointed out in many cases by this Court,” and he referred to thecases of Don Simon v. Singho Appu2 and Seneviratne v. AvaluMarikar.3 That case was somewhat similar to the present case,and the learned Judge concluded by saying : “ The circumstances
1 (1916) 2 C. W. R. 292.8 2 G. L. R. 193.
* 2 S.C. D. 59.
( 32 )
■Jayewab-DBNB A. j.
may indicate that all the persons seated in the field on the occasionin question did, in fact, take part in the gambling, but as there is noproof of specific acts against the appellants,I am obliged to interfere.”In the same way I am obliged to interfere in the present case andfor the same reason. I need not consider the question whetherthe prosecution has proved that the place is a common gaming place.When one reads the evidence in the record, * one cannot helpfeeling that the evidence on this point might have been very muchstronger. But it is not necessary for me to decide this point in viewof my decision on the second point. I accordingly set aside theconviction, and direct that the accused be acquitted.