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SANSONI v. SAMSON.
M. C., Colombo, 3,772.
Gaming—Ordinance No. 17 of 1889—Keeping a common gaming house—
Gaming at a social and religious function—Custom of the Moors.
The accused, haying agreed with a Tamil Hindu boy, who had noabode and was a mere wanderer about the market places in Colombo, togive him five rupees and clothing in consideration of his being' circum-cised, took him to a house already engaged by the accused and had himcircumcised. At the time the police1 made a raid on the bouse therewas a promiscuous gathering of Moors, Malays, Sinhalese, and Tamilsengaged in 'playing cards for money, and a commission of four cents perrupee was charged and collected from all who came and won money. Italso appeared that after the circumcision the boy was left to wanderabout as before.
Held, that the ceremony of circumcision was a mere blind to coverthe gambling, and that the house was kept as a common gaming place.
HE following judgment of the Police Magistrate (Mr. W. E.Thorpe) explains the facts of this case:—
“ These accused are charged with keeping a common gaminghouse. The house is admittedly a private house engaged, two orthree days before the raid, by the accused. It is admitted thatgaming was going on there, and the police arrested a large numberof people playing cards for money. But it is a private room, and thequestion of their guilt and the accused’s guilt depends on whetherit can be called a common gaming house. Admittedly it only beganon the 25th, and admittedly a boy was found there circumcised, >■and admittedly circumcision is made an occasion among theMohamedans for an assemblage' of people at the house ofcircumcision, who amuse themselves there and are entertainedfor a space of seven days.
“ The theory of the police is that the boy was there only as ablind; .that he was paid .to be circumcised in order to cover thisgambling. Not much can be made out of this evidence; he hasevidently been talked to by both sides, The alleged profits to thegaming house keeper are only 5 gents in every Re. 1 staked; andif JJs. 5 has to be paid to the boy and the house rented, and theaffair can only go on for‘seven days, there does not seem muchmoney in the speculation. I am unable to say there is any proofthat the circumcision was not a genuine alfair. I thought at firstthat the fact that persons of seyeral nationalities and religionswere found there would go to show* this. But the evidence ofthe chief priest negatives this; admittedly the eircumcisiop took (
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place, and there is nothing to show it was not a bond fide busi-ness. I dare say it is quite true that the Mohammedan religionforbids gaming, but people do not always adhere strictly to theprecepts of the religion they profess; and I cannot hold, becausein thin case they may have transgressed this precept of theirreligion, that the house was used as a common gaming house andthe whole affair a mere blind. The chief priest’s evidence showsthat strangers of different natdonaHties even may come .to thecircumcision houses during these seven^ days and there be enter-tained and join in whatever is going on, and the fact that theyjoined there does not make the place a common gaming place,or deprive me owner and his guests of their liberty to play gamesof chance for money in his private house.”•
The Attorney-General appealed.
The case was argued in appeal on 12th July, 1904.
Bdmandthan, K.C., for the appellant.—The order of acquittal isnot according to law or the facts proved. There is ample evidenceon record to prove that the accused kept a common gaming house.The fact that gaming was carried on there at a time when a boywas circumcised does not make the act any the less unlawful inthe present case. In the case of Ludovici v. Muttu Rama (M. C.,Colombo, 1,927) it was held that the accused, who were allMohammedans, and the relatives and friends of the boy who wascircumcisedcould not be convictedofunlawfulgaming for
merely card playing. But in the present case, .those who wereplaying were Moors, Malays, Tamils, and Sinhalese, and anyoutsider was allowed to join in the game on payment of acommission to the accused. In Dias v. Kanapitche (M. C.,Colombo, 5,322) the Supreme Court convicted the accused thereinof unlawfulgaming,notwithstandingtheceremonyof circum-
cision. They were a promiscuous lot of Sinhalese and Moors.
H.J.G Pereira, for accused, respondent.
Cur. adv. vult.
15th July, 1904. Sampayo, A.J.—
This is a prosecution under the Gaming Ordinance, 1889.The chargeagainstthe first accused isthat he,having the
temporary use of a certain house in Marad&na, permitted itto be usedas acommon gamingplace, whilethe second
accused is charged with 'having had the qse and managementof the house so used -as a – common gaming place. Admittedlygambling was carried on in thd house from the 25th May to the28th May, 1904, when the police made a raid on the house and
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stopped the gambling. The defence is that a boy was circumcisedin the house on the 25th May, and that in accordance with thecustoms of the Moorish community, to which the accused belong,an entertainment was going on for several days, during whichcard playing and other amusements, such as music and feasting,were indulged in by the accused and their friends. If this werethe case, the house could not be said to have been kept or used asa common gaming place, for it would have been used for thepurpose of the ceremony of circumcision, though gaming, whichis not in itself unlawful, was carried on therein. The PoliceMagistrate considers that the, circumcision was a bond fidereligious ceremony, and not a mere blind to cover the gambling,and ha| acquitted the accused. The Attorney-General hasappealed. If the finding of the Magistrate depended upon aquestion of credibility of evidence or upon a conflict of testimony,
I would have hesitated to interfere, except for strong reasons.But the judgment in this case turned upon the inference to bedrawn from the facts proved, and I am unable, upon a carefulconsideration of the evidence, to concur in the view taken by theMagistrate.
The boy who was circumcised was a Tamil boy of about sixteenyears, of age, who in his evidence described himself as a Hindu.According to his own account he had no abode, and was a merewanderer about the market places in Colombo. He says that thefirst accused came and called him to be circumcised and offered togive him clothing and Rs. 5, and so he consented, though headds that he “ was willing to be circumcised even without that.”.This is how the ceremony of circumcision came to take place.The boy says further that there was no music in the house, andanother witness—a Sinhalese jinricksha cooly—who took part inthis gambling says there, was ‘‘ no music or refreshments oranything,” thus contradicting the accused as to the character ofthe so-called entertainment. All sorts of people assembled to•gamble—Moors, Malays; Tamils, and Sinhalese—and in factany one and every one—even strangers—could ceme and join in.A commission of 4 cents in the-rupee -was- charged and collected fromall who came and won money. A Mohammedan priest, however,said that this sort of amusement was usual on the occasion of acjrcumqfsion; but even so the ceremony, to begin with, mustsurely be a bond fide* religious affair. It cannot seriously becontended that this was a genuine case of conversion to Islam, andthat the accused, whdn they got hold of a casual Tamil boy andcircumcised him, were actuated by Religious zeal. If this were so,one would have expected that the accused would have taken som,e
interest in the boy after his conversion, whereas he was allowed towander about as before and had to sleep in the fish market thenight before he gave evidence. As to the commission charged, theMagistrate thinks that that was to make up the^ Bs. 5 for the boyand to defray the expenses of the entertainment. The evidence,however, shows that there was no entertainment whatever exceptthe gambling, and it is to me plain that the main purpose forwhioh the house was used was gambling, and not the performanceof a religious ceremony.
There is no evidence, however, tha? the first accused was theperson who occupied or had u^e of the house temporarily orotherwise. The police appear to have lost sight of the actualcharge thus made against the first accused, and failed to adduceevidence of the necessary facts against him. I therefore affirm theacquittal so far as the first accused is concerned.
But as regards the second accused, it is proved that it was hewho collected the commission and appeared to conduct the affair.I set aside the acquittal as regards him, and convict him on thecharge that he on the 25th, 26th, 27jbh, and 28th days of May, 1904,had the management of a place used as a common gaming place,.to wit, a house in premises No. 152, 2nd Division, Maradana,Colombo, in breach of section 5, sub-section (6), of the OrdinanceNo. 17 of 1889, and sentence him to pay a fine of Bsi 25, and indefault ■ of payment to ■ undergo rigorous imprisonment for aperiod of one month.
SANSONI v. SAMON