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Present: Mr. Justice Middleton.i’AMBY v. UKKU BANDA.
P. C., Gampola, 2,685.
Unlawful gaming ■— Common gaming place — Proof — Definition ofgaming ” under Village Committee rules.
It is open topeopleto playgames of chancefor moneyat their
own houses provided the house is not used as a .common gamingplace, or is not a place to which the public has access whether as ofright or not. Where there is no warrant issued under the GamingOrdinance strictproofshouldbe adduced onthe partof the
prosecution to show that the act charged is one which is an offenceunder the Ordinance.
The useof aplace on oneoccasiononlywouldundercertain
circumstanceseititle a Court tosay thatit is a commongaming
place; buttheremust be someevidence,apartfromthe fact that
it was usedoncefor playing games for stakes,whichshowsthat it
was in fact a common gaming place.
fjl HE facts are set out in the judgment
Bawa, for the appellant.
No appearance for the respondent.
September 12, 1910. Middleton J.—
In this case the accused has been convicted, under section 4 ofOrdinance No. 17 of 1889, of unlawfully gaining with cards for stakes,
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and sentenced to pay a fine of Rs. 30, or in default one month's Sept. IS, 1910rigorous imprisonment. He appealed against that conviction on Mid^^qhtwo grounds: the first ground being that the evidence does not j.establish his identity as one of the persons found in Wijehamy*shouse on the night of April 16 last; the second point is that the Ufcku Bandaevidence does not prove that the gaming in which he was concerned!if any, was unlawful. On the first point I am satisfied on theevidence that the Magistrate was right in finding that the ninth .accused, here the appellant, was one of the persons who was foundin Wijehamy's house on the night in question. On the secondpoint 1 have been referred to Jayewardene v. Don Thomastl whereMr. Justice Withers laid down, what is undoubtedly true, that theessence of the offence of unlawful gaming is the publicity whichattracts idlers of all sorts to various forms of public nuisance, andhe also emphasizes there the necessity of proving that the house inwhich the accused was playing is a common gaming palace withinthe terms of section 3, sub-section (2), of the Ordinance, or is a placeto which the public has access whether as of right or not. Now. Ithink, that both the Magistrate and the police here are under acertain amount of misapprehension with regard to these offences.
The Government Agent here had directed that this case should betried in the Police Court, and it accordingly has been tried. If thecase is tried in the Police Court, it must undoubtedly be consideredunder the terms and according to the meaning of Ordinance No. 17of 1889. If a charge is made and considered in a Gansabhawa it willhave, I take it, to come under rule 43, of the rules made under section7 of the Village Communities’ Ordinance, No. 24 of 1889 (Ratwatte v.
Radons2). That rule forbids any person from gambling or cock-fighting. Now, gambling is defined in the Imperial Dictionary as theact of playing a game for money or other stakes, so that under theGansabhawa rules a person who is guilty of playing a game of cardsfor stakes would be necessarily guilty of the offence of gambling,without reference to the particular terms of the Ordinance which,is directed against unlawful gaming therein specifically defined.
It is, therefore, possible under these circumstances that people maythink that playing games of cards in their own house is a breach ofthe law if they play for money. Of course, that is not so. Thismay account for the running away, said to have occurred, when thehouse, was raided. It is open to people to play game6 of chance formoney at their own houses, provided that the house is not used asa common gaming place, or is not a place to which the public hasaccess as of right or not. Now, this being so, it becomes incumbent,where there is no warrant issued under the terms of the Ordinance,that strict proof should be adduced on the pail; of the prosecutionto show that the act charged is one which is an offence under the
(1905) N. L. B. 216.
* (1908) 11 N. L. R. 245.
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Sept. 12,1910 Ordinance. Now, in the present case, there does not appear to beMnnuunoH any evidence other than that these men were found playing, in ai. private house, cards for money. There is no evidence on the recordr,Z that that house was one to Which the public generally had accessVVku Banda as of right or by way of payment or otherwise, nor any proof thatit was a common gaming place within the meaning of the section,or that it was kept or used for playing games for stakes. It istrue under that section the law contemplates that the use of aplace on one occasion only would under certain circumstancesentitle a Court to say that it is a common gaming place, but theremust be some evidence, apart from the fact that it was used oncefor playing games for stakes, which show, that it was in fact acommon gaming place. In my opinion this prosecution must failon this ground only. I therefore direct that the conviction bequashed and this man acquitted.
TAMBY v. UKKU BANDA