002-NLR-NLR-V-23-WEERAKOON-v.-APPUHAMY-et-al.pdf
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Present: Schneider A. J.
WEERAKOON t>. APPUHAMY el al.
564-574—P. C. Nuwara Eliya, 4>829.•
Unlawful gaming—General evidence of gambling—No evidence thataccused took part though he was present—Common gaming place—Place reserved for people employed in a certain place.
Where there was 'no evidence that the accused had indulged ingambling, but general evidence was led that gambling had-gone onin the group where the accused were subsequently discovered.
. Held, that the conviction for unlawful gaming was bad.rj^HE facts appear from the judgment.'
J. C. Pereira (with him Navaratnam), for second to eleventhaccused, appellants.—The circumstance that the accused were ofdifferent nationalities and castes is not by itself conclusive proof ofthe fact that the public had access to the house in question. Thefact that most of the accused were employed at the Grand Hotelsupports the inference that the card playing was confined to friends.There is no evidence of acts of betting. Counsel cited Don Simanv. Singho Appu,1 Seneviratne v. Avalu Marilcar,2 Goonewardene v.Thdenis* Banda Aratchie v. Seyatu*
1 (IS93) 2 C. L. R.193.3 {1910) 3 Bal Reports €4
* {1909) 2 S. C. D. 69.4 (1SJG) 2 C. W. R. 292.
1921.
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1921. June 16, 1921. Schneider A.J.*—
Wwakoon Their conviotions are brought, up by way of appeal by the secondAppvMmy to twelfth accused, who -have been found guilty of unlawfulgaming under section 4 of the Gaming Ordinance, 1889, andsentenced to pay a fine of Rs. 20 each. The first accused wasacquitted. The appellants have no right of appeal except upon amatter of law. The only matter of law urged on appeal was thatthe evidence upon which the convictions are founded does notwarrant the convictions. As I understand and interpret thismatter of law, it is this. Accepting the Magistrate’s findings offacts, those facts do not warrant the conviction. The Magistratehas accepted the facts deposed to by two of the witnesses for theprosecution. The material evidence is to the effect following : AnInspector of Police, accompanied by a Sergeant of Police and fourconstables, made a raid upon the house of the first accused. Theyfound the first accused in the compound of his house and arrestedhim. This clearly they had no right to do, for there is no evidencethat he had committed any offence. They found the door of thehouse closed. The Inspector says he heard gambling going on in thehouse and the sound of betting. He knocked at the door, and someone from inside inquired who it was., The Inspector replied he wasfrom the Grand Hotel and had come to gamble. The door wasthen opened,and he and his men rushed in and arrested the accused.He found them seated on three mats. He found a pack et, cards onthe floor and Rs. 40 odd on the ground or on the persons of theaccused.
The pack of cards was incomplete, and consisted of “ clubs ” only.The Police Sergeant says that the pack of cards was found in thehands of the eighth accused. In this respect he contradicts theInspector. The accused are said to be some of them dhobies, someof the Goigama caste, and one of them is said to be a Tamil. Theyare said to come from different parts of the town. As the Magistraterightly puts it, the main question is whether the place in which theaccused were found was a; common gaming place. The Ordinance(section 3) defines a common gaming place as including any place—
Kept or used for betting or the playing of games for stakes;
And to which the public may have access.
For the purpose of these appeals, unlawful gaming means the actof betting or of playing a game for a stake in or at a common gamingplace.
It seems to me that all these appeals are bound to succeed on theground that the evidence fails to establish that the house in question’ Was a common gaming place. On this point the evidence is thatpeople of different nationalities and castes were found in the placeupon the occasion of the raid, and that the Police Inspector procuredthe opening of the closed door by the pretence that .he had come
1921.
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from the Grand Hotel for gambling. If people from the GrandHotel alone were admitted, as the evidence leads one to infer, I failto see how this evidence can be regarded as proving that the publichad access.
There is also no evidence that any one of the accused had indulgedin gambling. General evidence that gambling had gone on . in thegroup, where the accused were subsequently discovered, is notsufficient to warrant a conviction. The oases of Don Siman uSingho Appu,1 Seneviratne v. Avalu Marikar? Gooneivardene v,Thelenis,3 and Banda Aratchie v. Seyatu* are all in point.
I therefore set aside the conviction* of all the accused, and acquitthem.
Accused acquitted.
SOHNEIDBB
A.J.
Weerakoonv.
Appuhamy