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2019 (1) TMI 2015 - HC - Indian LawsSeeking direction to respondent not to interfere with the functioning of the club and not to make any frequent raid or book cases for playing rummy in the club of the petitioner - contention raised is that the petitioner and the members of the club are entitled to carry on lawful activities within their premises and there should not be any interference or harassment from the Police Authorities as long as their activities are not in violation of Sections 7 and 8 of the Kerala Act - game of rummy is a game of skill or chance or not. Whether the game of rummy, which depends to a substantial degree upon the exercise of skill, comes within the stigma of Sections 7 and 8 of Kerala Act? HELD THAT:- The judgments of the Apex Court (Constitution Bench) in STATE OF BOMBAY VERSUS RMD. CHAMARBAUGWALA & ANR. ADVOCATE-GENERAL OF MYSORE [1957 (4) TMI 55 - SUPREME COURT] and RMD. CHAMARBAUGWALLA VERSUS THE UNION OF INDIA [1957 (4) TMI 56 - SUPREME COURT] had held that gambling is not a trade and as such, is not protected under Article 19(1)(g) of the Constitution of India. It was further held that the competitions, which involve, substantial skill are not gambling activities. Such competitions are business activities, the protection of which is guaranteed by Art.19(1)(g) of the Constitution. Sections 7 and 8 of the Kerala Act is not exactly similar to Sections 3 and 4 of the Hyderabad Gambling Act referred to in Satyanarayana's case [1967 (11) TMI 109 - SUPREME COURT]. In para 8 of the judgment, it is explicitly made clear that the Apex Court concurred with the views of the High Court that the prosecution failed to prove in the said case that the club was used as a common gambling house and the presumption arising under Section 7 of the Hyderabad Gambling Act was successfully repelled by the evidence which has been led even on the side of the prosecution. The corresponding provision to Section 7 of the Hyderabad Gambling Act is Section 6 of the Kerala Act - In Sugathan v. State of Kerala and another [2018 (1) TMI 1713 - KERALA HIGH COURT]], a Division Bench of this Court held that two preconditions are required in order to conduct a proper search by a detecting officer within the meaning of Section 5 of the Act- firstly, his reason to believe that the said place is used as a 'common gaming house', and; secondly, he has to record his reasons to entertain such a belief. Thus, the club is used as a gaming house for the purpose of playing rummy for stakes and all the persons physically present there are found playing rummy, then they are certainly accused in the eye of law provided the detecting officer has complied with Section 5 of the Kerala Act before making such raid or inspection in the club. Coming to the offences stipulated under Sections 7 and 8 of the Kerala Act, the learned Amicus Curiae pointed out that under Section 14A of the Kerala Act, the Government may, if they are satisfied that in any game the element of skill is more predominant than the element of chance, by Notification in the Gazette, exempt such game from all or any of the provisions of this Act, subject to such restrictions and conditions as may be specified in the notification. Admittedly, no notification was issued by the Government, exempting the game of rummy for stakes - so far as the activity of the club is within the framework of law, the same shall not be interdicted by the Police on flimsy grounds. However, this shall not be a bar for the Police to take appropriate action to ensure that no illegal activities involving money transactions are being pursued in the club and its premises under the cover of playing rummy or “pullyvally” or “pannimalathu” etc. Petition disposed off.
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