TMI Blog2020 (7) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... r wagering and any act which is intended to aid or facilitate the same. For the purpose of regulating gaming in India, most of the Indian legislations differentiate between games of skill and games of chance . Gaming / Gambling, being a State Subject, India has laws which differ from State to State. Therefore, what is permitted in one State, may be an offence in another. When the menace of lottery was at its peak, sucking the blood and life of several families, the Government of Tamil Nadu, in the year 2003, has taken a rigid stand, with an iron hand and banned the sale of all lotteries, including online, within the territory of the State, by passing the Government Order in G.O.Ms.No.20 Home (Courts II) Department dated 08.01.2003. This Government Order, though challenged before the Courts of law, still holds the field. By virtue of this order, the Government has thus prevented the suicidal deaths, who have not only lost their hard earned money but also their family peace and reputation, in the State - Similarly, when the menace of charging exorbitant interest, by way of 'daily vatti', 'hourly vatti', 'kandhu vatti', 'meter vatti', 'vattiku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The case of the petitioner is that since the Schools have been closed, due to the present COVID-19 pandemic, he went to his native village and met his friends in the village. On 05.06.2020, he visited the farm land of his friend near Kaduthula Junction in Vijayapathi Panchayat and since all the friends meet after a long time, they chose to play cards in the said farm land. The petitioner did not participate in the game, but was a mute spectator and around 07.30 pm, the respondent Police suddenly entered into the farm land and apprehended the petitioner and his friends and registered the case. 4. Mr.L.P.Maurya, learned Counsel for the petitioner would contend that the place mentioned in the First Information Report is neither a common area, as per Section 3 of the Act, nor it can be termed as a public street, place, as contemplated under Section 12 of the Act, however, the respondent Police has registered the case as against this petitioner and others. 5. The learned Counsel for the petitioner would furthersubmit that in order to attract the offence under Section 12 of the Act, the alleged offence ought to have been committed in a public place. But, admittedly, even acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all the social media and websites. It appears these advertisements are mostly targeting the unemployed youth, inducing them to play such games, on the pretext of earning money comfortably from their home. 10. In response to the query posed by this Court, the Assistant Inspector General of Police, Law and Order, filed a status report on behalf of the Director General of Police, Tamil Nadu, that there was a growing addiction for online gaming/gambling, particularly among the youngsters causing financial crisis in families. Online gaming companies in India are now required to comply with multiple laws of India, both Central and State, but, most of them are not complying with techno-legal requirements of different laws of India. 11. The status report further reads that the online rummy cannot be considered as a game of skill as betting or gambling taking place in online rummy. The Assistant Inspector General of Police admitted that at present, in the State of Tamil Nadu, there is no rule to regulate and license online skill games such as rummy, bridge, nap, poker and fantasy sports, etc. However, the Government of Telangana through Act No.29 of 2017 has amended the Telangana Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the allegations putforth by the prosecution is true, it cannot be constituted an offence as alleged by the prosecution. In these circumstances, even if the prosecution is allowed to continue, in view of the facts and circumstance of the case, it would be a futile exercise and there is no scope for conviction. Therefore, the materials collected in support of the charges do not disclose the commission of any of the offence or make out a case against the petitioners / accused and as such, the entire criminal proceedings cannot be sustained. 11.Further, in this case, there is absolutely no mention in the report about anybody running a common gaming house. There is no mention about the first petitioner permitting the use of the premises for gaming activities with a view to derive profit or gain for himself. Therefore, the place in which the petitioners played in 'vetty chettu' and recovered huge sum by the respondents is not a common gaming house. Time and again, this Court has pointed out that gaming is not an offence per se but it is punishable only when it is carried on in a public place for commercialisation purpose and in a common gaming house with profit motive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transition, not only in terms of its audience, but also in terms of the modes of participation and engagement. Gambling Laws in India prohibit betting or wagering and any act which is intended to aid or facilitate the same. For the purpose of regulating gaming in India, most of the Indian legislations differentiate between games of skill and games of chance . Gaming / Gambling, being a State Subject, India has laws which differ from State to State. Therefore, what is permitted in one State, may be an offence in another. 23. The Public Gaming Act, 1867, is the Central Act in this subject, which has been adopted by several State Governments and the remainders have enacted their own legislation to regulate gaming / gambling, within its territory. It is to be noted at this juncture that such State legislations have been enacted prior to the advent of virtual / online gambling in India, except the State of Sikkim, Nagaland and Telangana, which have introduced regulations pertaining to online gaming also. 24. There has been a substantial discussion by the Hon'ble Supreme Court as well as by the High Courts around the Country as to what constitutes a game of skill and a g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self to that vice either secretly or openly the king may inflict punishment according to his discretion. While Manu condemned gambling outright, Yajnavalkya sought to bring it under State control but he too in verse 202(2) provided that persons gambling with false dice or other instruments should be branded and punished by the king. Kautilya also advocated State control of gambling and, as a practical person that he was, was not averse to the State earning some revenue therefrom. Vrihaspati dealing with gambling in Chapter XXVI, Verse 199, recognises that gambling had been totally prohibited by Manu because it destroyed truth, honesty and wealth, while other law givers permitted it when conducted under the control of the State so as to allow the king a share of every stake. Such was the notion of Hindu law givers regarding the vice of gambling. Hamilton in his Hedaya Vol. IV, book XLIV, includes gambling as a kiraheeat or abomination. He says: It is an abomination to play at chess, dice or any other game; for if anything is staked it is gambling, which is expressly prohibited in the Koran; or if, on the other hand, nothing be hazarded it is useless and vain . The wagering contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra-commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution. ... ... ... 46. For the reasons stated above, we have come to the conclusion that the impugned law is a law with respect to betting and gambling under Entry 34 and the impugned taxing section is a law with respect to tax on betting and gambling under Entry 62 and that it was within the legislative competence of the State Legislature to have enacted it. There is sufficient territorial nexus to entitle the State Legislature to collect the tax from the petitioners who carry on the prize competitions through the medium of a newspaper printed and published outside the State of Bombay. The prize competitions being of a gambling nature, they cannot be regarded as trade or commerce and as such the petitioners cannot claim any fundamental right under Article 19(1)(g) in respect of such competitions, nor are they entitled to the protection of Article 301. The result, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of course, is collected and there is expenditure for running of each section of the establishment. Just as some fee is charged for the games of billiards, pingpong, tennis, etc., an extra charge for playing cards (unless it is extravagant) would not show that the club was making a profit or gain so as to render the club into a common gambling house. Similarly, a late fee is generally charged from members who use the club premises beyond the scheduled time. This is necessary, because the servants of the club who attend on the members have to be paid extra remuneration by way of overtime and expenditure on light and other amenities has to be incurred beyond the club hours. Such a charge is usual in most of the clubs and we can take judicial notice of the fact. 28. A Full Bench of the Hon'ble Supreme Court, in Dr.K.R.Lakshmanan v. State of Tamil Nadu and another, reported in AIR 1996 SC 1153, while dealing with the issue of horse racing, has held that horse racing is neither 'gambling' nor 'gaming', but a game of 'mere skill' and that the expression 'mere skill' would mean substantial degree or preponderance of skill. While holding so, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying of fantacy game by any participant user involves virtual team by him which would certainly requires a considerable skill, judgment and discretion. The participant has to assess the relative worth of each athlete/sportsperson as against all athlete/sportspersons available for selection. He is required to study the rules and regulations of strength of athlete or player and weakness also. The several factors as indicated above submitted by the respondent-company would definitely affect the result of the game. Admittedly, the petitioner himself created a virtual team of a Cricket Match between two countries as indicated in the website by choosing 11 players out of total player, who were to play for two countries collectively and after forming a virtual team of 11 players as per his own selection, knowledge and judgment, which is thoughtful Will, he joined various leagues for the leagues selected by him and after registration which was declared before participating, was not about possibility of winning or losing like horse riding not every better is winner. 21. The respondent company s website and success in Dream 11's fantasy sports basically arises out of users exercise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) In the event the Club/Association either allows its members or guests to play rummy with stakes or make any profit or gain out of such gambling, the Police has the authority to invoke the provisions of the Chennai City Police Act. (5) In order to ascertain as to whether the premises is used as a gaming house for gambling, the Police is entitled to invoke Section 23 of the Act. 35. Yet another Division Bench of this Court, in the case of Director General of Police and others v. S.Dillibabu, in W.A.No.296 of 2013, dated 06.10.2017, has quashed the order passed by a learned Single Judge in W.P.No.21620 of 2011, dated 04.11.2011, insofar as allowing the petitioner association to play Rummy (13 cards) with stakes by its members and guests. 36. Very recently, the High Court of Kerala, in the case of Ramachandran,K v. The Circle Inspector of Police, reported in 2019 SCC OnLine Ker 6788, relying upon the decisions of the Hon'ble Supreme Court in K.Satyanarayana's case and Dr.K.R.Lakshmanan's case, has held that playing rummy with stakes would not come within the purview of 'gaming' for the purposes of gambling, under the Act (Kerala Gaming Act). The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h causes many a misery and destroys one's reputation. which means- Gambling would preclude the Five Rathnas, viz., Reputation, Education, Wealth, Food and Cloth, from reaching the person. 41. At this juncture, this Court is inclined to share the modus operandi of such online games. 42. If X and Y want to play a game, both of them have to bet a sum of ₹ 10/- (Say). The winner will get the amount that he put in place, ie., ₹ 10/- and in addition to that, he will get an additional sum, Say 75% that was put in place by the opponent, being the prize amount. The balance, ie., 25%, will be credited to the account of the particular online gaming site. The loser will loose everything. 43. If a group of persons (Say 10) want to play a game, each one of them have to bet a sum of ₹ 10/- (Say). At the end of the game, the Winner will get his amount as well as 100% of his bet amount, being the prize money. The Runner will get his amount as well as 70% of his bet amount, being the prize money. The losers will not only loose the game, but also loose ₹ 10/- that was put in by them. A rough calculation for the aforesaid scenario will give a whooping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily peace and reputation, in the State. 50. Similarly, when the menace of charging exorbitant interest, by way of 'daily vatti', 'hourly vatti', 'kandhu vatti', 'meter vatti', 'vattiku vatti', was in its prime, the Government of Tamil Nadu, in the year 2003, has enacted Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003, thereby, wiped the tears of the affected people at large. 51. Therefore, this Court hopes and trusts that this Government shall take note of the present alarming situation and pass suitable legislation, thereby, regulating and controlling such online gaming through license, of course, keeping in mind the law of the land as well as the judicial precedents in this regard. This Court is not against the virtual games, but, the anguish of this Court is that there should be a regulatory body to monitor and regulate the legal gaming activities, be it in the real world or the virtual world. Needless to say that if the Government intends to pass a legislation in this regard, all the stakeholders should be put in notice and their views should be ascertained. 52. Since this Court is exercising power under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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