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TMI Blog1978 (4) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The facts of the case are not in dispute and counsel for the appellant has not raised any question relating to the merits of the case. In fact, all the three courts have concurrently found that the offence against the appellant has been established beyond any doubt and in view of the concurrent finding of facts by the courts below there is no question of arguing the case on merits. 4. One of the important points of law which was urged before the High Court as also before this Court was that the search warrant issued by the Assistant Commissioner which formed the basis of the conviction of the appellant was legally invalid, and, therefore, the conviction was not sustainable in law. It was also argued before the High Court that the search warrant did not contain a full and complete description of the hut where the game was being played but the High Court has rightly repelled this contention on the ground that the search warrant contained full description of the place and this finding was not assailed before us also. 5. Thus, the entire case turns upon the validity of the search warrant issued by the Assistant Commissioner. In this connection, it was submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the term 'Commissioner of Police' has not been defined any where in the Act it cannot per se include an Assistant Commissioner and the provisions of the Police Act which was passed long after the Gambling Act could not be pressed into service, unless there was some other Act which could make the provisions of the Police Act applicable to the Gambling Act. Prima facie, therefore, the contention of the appellant seems to be tenable. Our attention has however been drawn to the Bombay General Clauses Act of 1886 as amended by Act I of 1904 which doubtless was an Act passed before the coming into force of the Gambling Act, Section 17 of the Bombay General Clauses Act which remained unamended even after the Amendment Act of 1904 runs thus : 17(1) In any Bombay Act made after the commencement of this Act it shall be sufficient for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention thq official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed. 8. Analysing this definition it would ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner could also perform those functions which could be assigned to him by the Commissioner under the general or special orders of the State Government. The provision for assignment of powers by the Government to the Commissioner are contained in Section 10(2) of the Police Act which runs thus : 10(2) Every such Deputy Commissioner shall, under the orders of the Commissioner, exercise and perform any of the powers, functions and duties of the Commissioner to be exercised or performed by him under the provisions of this Act or any other law for the time being in force in accordance with the general or special orders of the State Government made in this behalf. 10. The High Court has found as a fact that there was a notification by the State Government dated 10th March, 1967 by which all the Assistant Commissioners of Police including that of Nagpur were conferred powers and functions of the Commissioner of Police. Thus, in the instant case at the time when the offence was committed two things had happened, (1) that in Nagpur where the offence had taken place there was a Commissioner of Police, and (2) that the Commissioner of Police had been conferred the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion arrived at by my brother Fazal Ali, I would like to state my reasons for the same. 14. This appeal by a certificate of the Bombay High Court is directed against its judgment dated November 8, 1971, by which it dismissed the petition for revising the appellate judgment of the Additional Sessions Judge of Nagpur upholding the conviction of the revision petitioner. The trial court convicted appellant Janardhan of an offence Under Section 4 of the Bombay Prevention of Gambling Act, 1887, hereinafter referred to as the Act, and sentenced him to rigorous imprisonment for two months and a fine of ₹ 400/-, or in default of payment of fine to undergo further rigorous imprisonment for one month. The remaining accused (except accused No. 15) were convicted of an offence Under Section 5 of the Act, and were sentenced to rigorous imprisonment for 7 days and a fine of ₹ 50/- each. This appeal relates to appellant Janardhan. 15. It was alleged against the appellant that he was keeping a common gaming house in a hut in Nagpur which was in his occupation. The Assistant Commissioner of Police issued a special warrant of entry and search Under Section 6 of the Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime being executing the functions of an office to mention the official title of the officer at present executing the functions . Accordingly it was sufficient to mention the Commissioner of Police by his official title for purposes of Section 6 of the Act as he was the functionary who was executing the functions referred to in the section at the time when the Act came into force. As Section 17 of the Bombay General Clauses Act deals with the substitution of functionaries, it enabled that functionary to discharge the functions of the Commissioner of Police Under Section 6(1) of the Act who was for the time being executing the functions of that office. In other words, as it was the Commissioner of Police who had the authority to issue the special warrant Under Section 6(1) of the Act when it came into force, it would be permissible for the Assistant Commissioner of Police to be substituted for that functionary if it could be shown that it was he who was executing the functions of the Commissioner of Police on the date of issue of the special warrant referred to above i.e. on December 25, 1967. 20. It remains for consideration whether the Assistant Commissioner of Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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