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TMI Blog2012 (3) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances. The respondent-Mahalakshmi Cultural Association (hereinafter referred to as 'the Association') approached this Court by filing the writ petition seeking for an order forbearing the appellants (hereinafter referred to as 'the Police') from interfering in any manner in the activities of the association including playing of 13 cards game like rummy with or without stakes whatever and also from harassing the members, the guests or the members of the management of the association in any manner. The said writ petition was filed with the following averments. The Association was formed in the year 1981 and was registered under the Societies Registration Act, 1860 with certain objects including to offer facilities for indoor games such as table tennis, carrom, chess, cards (not resorting to gambling) and outdoor games such as badminton, tennis and volleyball. The Association has 49 life members and 235 ordinary members and has its own bye-laws. The members of the Association and their guests are allowed to play 13 cards, namely, rummy with stakes which, according to the Association, does not amount to gambling. 3. On 10.8.2011, the Inspector of Police, R4 Soundar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... association frequently under the guise of inspection as it would disturb the peace harmony of the petitioner association.' 5. This order is put in issue by the appellants in this writ appeal. The writ petition was occasioned due to the raid conducted on 10.8.2011 and the consequent registration of the case on the same date. A criminal case was registered against one Thiru Sudhir, S/o Ramakrishna Reddy and 57 others under Sections 45 and 46 of the Chennai City Police Act on the ground that at the time when the raid was conducted in the premises of the Association, it was found that about 56 persons were playing cards (gambling) for stake from whom 178 tokens were seized and the cash used in the gambling amounting to Rs. 6,95,000/- was also recovered. It was also found that there were 12 tables and in 8 tables, 5 persons were playing cards using the tokens issued in lieu of cash for monetary gain. Hence, the said 56 persons were secured along with two others of the Association on the ground that they indulged in gambling. As we are now called upon to decide as to whether the members of the Association and their guests would be entitled to play rummy with stakes, the legality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aming includes wagering or betting except such wagering or betting on a horse race. Such gaming includes the playing of cards, be it 3 cards or 13 cards. In the event the gaming of cards is played in a premises, namely, house, room, tent, enclosure, vehicle, vessel or any place whatsoever, the said place is called a common gaming house. The Apex Court in Kishan Chander v. State of Madhya Pradesh, AIR 1965 SC 307, while dealing with a criminal appeal filed by the appellant therein, who was convicted under Section 3 of the United State of Gwalior, Indore and Malwa (Madhya Bharat) Gambling Act Samvat, 2006, while upholding pari materia provisions, held as follows:- 8. In order to find out whether the impugned provisions can be regarded as unreasonable in the sense explained it is necessary to consider them in some detail. We begin with the definitions. "'Gaming" is defined to include wagering and betting which are the commonest forms of gambling but the definition leaves room for inclusion in the term other forms which gambling might take., There is nothing in the definition to make it unreasonable or to offend against any of the guaranteed rights. Next comes the defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any time when it is open for the reception of persons resorting thereto where he has reason to believe that the place is used contrary to the provisions of the license. That provision applies to unlicensed places as well. 8. Section 42 relates to the power of such Commissioner by his warrant giving authority to any police officer above the rank of constable to enter with such assistance as may be found necessary if he has reason to believe that any place is used as a common gaming house. Such warrant also includes to arrest all the persons found therein and to seize all the instruments of gaming and all monies and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein and to search all parts of such place and also the persons found therein. 9. For better appreciation of the issue, the following provisions of the Chennai City Police Act are referable. 43. Cards, dice, etc., found in search under last section to be evidence that place is a common gaming house.--Any cards, dice, gaming table or cloth board or other instruments of gaming found in any place entered or searched under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f gaming. In terms of Section 44, it shall not be necessary to prove that any person found playing at any game was playing for any money, wager, bet or stake. Section 45 contemplates a penalty for opening a gaming house. Section 46 contemplates a penalty for being found gaming in a common gaming house. Nevertheless, an exception has been made in Section 49, wherein the provisions of Sections 42 to 48 of the Act were made inapplicable to games of mere skill. 11. In the wake of the above provisions, for an effective administration in prevention of offences and in preserving peace from public nuisances, the executive Magistrate of the city or the police officer authorised by him is empowered not only to apprehend disorderly and suspicious characters, but also to detect and bring the offenders to justice. The said provision empowers such police officer even to enter into certain places without there being a warrant issued by the Courts. However, a balance should be weighed between the above power of the police officer vis-a-vis the right of a citizen to carry on activities which are not prohibited in law. The power could be exercised in the event of any reliable information received b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of information was. At the time the game was going on, he was not present and when he arrived on the scene, the game had stopped. The account-books of the club do not show any such levy form the persons and in the absence of any entry, we cannot hold this fact to be sufficiently proved. As regards the extra charge for playing cards, we may say that clubs usually make an extra charge for anything they supply to their members because it is with the extra payments that the management of the club is carried on and other amenities are provided. It is commonly known that accounts have to be kept, stocks have to be purchased and maintained for the use of the members and service is given. Money is thus 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aming house and the persons found therein were present for the purpose of gambling although no play was actually witnessed". Though by virtue of the above provision a presumption could be drawn, however, on the facts of that case, the Apex Court found that the said presumption was successfully repelled by the evidence which had been adduced by the prosecution itself. We may also notice that Section 43 of the Chennai City Police Act is in pari materia with the above provision of the Hyderabad Gambling Act relating to presumption. With these observations, the Apex Court, found as follows:- 12...The game of rummy is not a game entirely of chance like the 'three card' game mentioned in the Madras case to which we were referred. The 'three card' game, which goes under different names such as 'flush', 'brag' etc., is a game of pure chance. Rummy on the other hand, requires certain amount of skill because the fall of the card has to be memorized and the building up of rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of rummy is a game of entire chance. It is mainly and preponderantly a game of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng or betting of money or something material value on an event with uncertain outcome with primary intent of winning additional money and or material goods. Gambling can also be understood as an act of playing for stakes in the hope of winning or a game risked for possible money. In the event a game is played for stakes, it would amount to wagering or betting resulting either in loss or win. 15. The evil effects of Gambling finds it's reference even in epics. Shakuni, Duryodhana's uncle, in Mahabharata, arranges a dice game, playing against Yudhishtira with loaded dice. Yudhishtira loses all his wealth, then his kingdom. He then even gambled his brothers, himself and finally his wife into servitude. The jubilant Kauravas insult the Pandavas in their helpless state and even try to disrobe Draupadi in front of the entire Court, but her honour is saved by Krishna who miraculously creates lengths of cloth to replace the ones being removed. 16. We may also refer to the observations of the Constitution Bench of the Apex Court with regard to gambling in State of Bombay v. R.M.D.Chamarbaugwala, AIR 1957 SC 699, wherein the Apex Court held as follows:- From ancient times seers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake. Such was the notion of Hindu lawgivers 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. It will be abundantly clear from the foregoing observations that the activities which have been condemned in this country from ancient times appear to have been equally discouraged and looked upon with disflavour in England, Scotland, the United States of America and in Australia in the cases referred to above. We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makes to be raised to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... skill or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows or can know what it will be until the dice is thrown, the wheel stops its revolution or the dealer has dealt with the cards. A game of skill, on the other hand - although the element of chance necessarily cannot be entirely eliminated - is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even Rummy are considered to be games of skill. The courts have reasoned that there are few games, if any, which consist purely of chance or skill, and as such a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is the dominant element - "skill" or "chance" - which determines the character of the game. 19. The Apex Court in Dr. K.R. Lakshmanan v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also considered as indulging in gambling. 22. In the present case, at the time the Association premises was raided, the police officers found 56 persons were playing cards for stake and from whom 178 tokens indicating betting were seized and the cash used in the gambling amounting to Rs. 6,95,000/- was also recovered. It was also found that 5 persons were playing cards using tokens issued in lieu of cash for monetary gain. This will indicate that they shall be evidence to show that the premises was used as a common gaming house in terms of Section 43 of the Act and those found in the premises either with tokens or found playing with tokens should be considered as indulging in gambling. 23. On the basis of the above discussions, we arrive at the following conclusions:- (1) The game of rummy (13 cards) is only a game of skill even though an element of chance is also involved. (2) In the event rummy is played by the members or the guests without stakes, the provisions of the Chennai City Police Act are not attracted. (3) In the event rummy is played by the members or the guests with stakes, the provisions of the Chennai City Police Act are attracted. (4) In the event the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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