JUDGMENT Sen, J.
1. Rure Mal and Buland Rai were convicted by Mr. Ali Husan Khan, Magistrate First Class of Meerut, under Sections 3 and 4, Public Gambling Act (Act 3 of 1867). The Magistrate sentenced the two accused persons to a fine of Rs. 100 each under Section 3 of the Act, or in default to suffer one month's rigorous imprisonment and a further fine Rs. 100 each under Section 4, or in default to suffer one month's rigorous imprisonment.
2. There was a third man Tara Chand, who was also convicted by the Magistrate, but his case is not before this Court. Under the evidence on the record there can be no manner of doubt that the two applicants were keeping a public gambling den with the object of gambling therein with other persons. In order to prevent any possibility that the nefarious transaction carried on days in and days out in the gambling den at Baraut be discovered, the instruments of gaming resorted to and adopted in the present case were ingenious and extremely original. They mostly consisted of books, letters and telegrams couched in language, more or less cryptic, having a separate code or a separate bey to unravel the meaning.
3. The conviction of the two applicants was upheld on appeal by the learned Additional Sessions Judge of Meerut by his judgment, dated 19th February 1929. The findings of the trial Court in all essential particulars were endorsed by the Judge on appeal and the sentences were upheld.
4. The learned Additional Sessions Judge could well have avoided importing into his judgment a long roll of platitudes which has no bearing upon the case one way or the other. The duty of a Court of appeal is to visualise the case before it in its proper perspective and to decide the case on the crucial questions in issue upon evidence relevant and legal. If the Court has done this, and has recorded a clear and categorical finding, and dealt with the question of sentence having regard to the nature and character of the offence alleged to have been committed, the duties and obligations, which rest upon the Court of appeal, are completely discharged. It is no province of the Judge to sermonise.
5. Mr. Saila Nath Mukerji for the applicants assails the judgment of the trial Court upon the grounds that two persons could not be jointly tried under Sections 3 and 4, Public Gambling Act and that a joint trial is illegal under Section 239, Criminal P.C.
6. Section 239, Criminal P.C. inter alia provides that the following persons may" be charged and tried together namely:
(a) Persons accused of the same offence committed in the course of the same transaction.
7. It has been argued that Sections 3 and 4, Public Gambling Act, deal with distinct and independent offences which cannot be treated to be parts of the same transaction. There can be no doubt that these two sections provide for offences, separate and distinct, and prescribe separate sentences for each offence. No cast iron rule of law can be laid down on the question as to whether the keeper of a public gambling den, if he frequents the said den and gambles there, could not be said to do so in the course of the same transaction. Reliance has been placed by the applicants upon two rulings of the Punjab Chief Court: in re, Makhan v. Emperor [1910] 5 P.W.R. 1910 and Emperor v. Fazal Din [1914] 35 P.R. 1914 Cr.. It has been held in these cases that the joint trial of a person accused of keeping a gambling house and others for being present in it at the time of a police raid is not warranted by the provisions of Section 239, Criminal P.C. and thus being illegal the conviction must be set aside. These authorities support the contention of the applicants. There is, however, a decision of the same Court in re, Khilinda Ram v. Emperor A.I.R. 1922 Lah. 458 which takes a contrary view. It has been held in this case that the joint trial of a keeper of a common gaming house and of the persons found therein for offences under Sections 3 and 4, Gambling Act, respectively is legal. This decision is found upon an earlier ruling of the same Court in the case of Bhana Mal v. Emperor [1910] 6 P.R. 1919 Cr.. In Ganeshi Lal v. Emperor A.I.R. 1923 All. 88 it was decided by Stuart, J. (now Sir Louis Stuart) that the offence of keeping a gaming house and the offence of using it are offences committed in the same transaction and the offenders can be tried jointly. The words "same transaction" do not appear to have been defined in the Code The offences under Sections 3 and 4, Public Gambling Act are interdependent and "are the complements of one another." There can be no doubt that the trial Court was justified in trying the accused persons under these two counts in the course of the same trial. In any event the accused had not been prejudiced by the joint tria1 and no circumstances had been brought out to show that any injustice had been done in this case.
8. It was next argued that separate convictions under Ss 3 and 4, Gambling Act, were illegal. As has been pointed out, the two offences may be interdependent out they are distinct offences and one could not be said to overlap the other. It would not have been proper to convict the applicants under the two sections and pass a cumulative sentence on one count only.
9. It was next contended by the applicants that there was no proper search made under Section 103, Criminal P.C. inasmuch as two or more respectable inhabitants of the locality in which the place searched is situate were not sent for to attend the Court as witnesses to the search. If Section 103, Criminal P.C., governs this case, it is perfectly patent that the requisition of law was not complied with. The Sub-Inspector examined in the case was by no means an impartial or disinterested witness. Chhajjoo Singh, the only other witness examined to prove the search was at the time under police surveillance. Chhajjoo is not a resident of Baraut where the gaming house is situate. He lives four miles off in a village named Bauli. It is difficult to speculate as to why the Sub Inspector did not produce Narain, the only other search witness, to be examined in the case, Whether the omission was accidental or deliberate, the act of the Sub-Inspector in not producing Narain was, to quote words of the learned Additional Sessions Judge, "very foolish."
10. It may be noticed that Act 3 of 1867 is a special Act and provides a special rule of procedure as regards the holding of searches under the Act. This procedure is laid down in Section 5 which in certain respects is analogous to Section 98, Criminal P.C. It is perfectly clear that the search was conducted in strict conformity to Section 5, Act 3 of 1867. Section 103, Criminal P.C. refers to a search under this chapter, that is Ch. 7, and the general rules of procedure relating to search are to be found in Sections 96 to 100. Where a warrant has been issued for search under Section 5, Gambling Act, Section 103, Criminal P C. is not applicable. This was the view taken by a learned Judge of the Lahore High Court in re, Khilinda Ram v. Emperor A.I.R. 1922 Lah. 458. I am in entire accord with this view. It was held by this Court in Ali Ahmad Khan v. Emperor A. 1. Rule 1924 All. 214 that any irregularity or illegality in the search can neither vitiate the trial nor affect the conviction of the accused, where the accused has not been prejudiced by the defect.
11. The sentence passed in this case appears to be unduly severe. Satta transaction has various phases and forms and in certain forms it is gambling. An opinion however was shared by a large section of the Indian population that Satta gambling was of the nature of a commercial transaction even though one of the elements of the said transaction was speculation.
12. I am of opinion that the interests of justice will be served by maintaining the conviction of the two applicants under Sections 3 and 4, Public Gambling Act, and reducing the sentence in the case of both to a fine of Rs. 25 only on each count.