TMI Blog2019 (1) TMI 2015X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Societies Registration Act, 1860 (Act No.21 of 1860) and has been functioning as per Ext.P1 registered bye-law of the Society. The object of the said club as per Ext.P1 includes encouraging the cultural and sports talents of the people in the locality and conducting various programmes to promote sports and games and other charitable work among the members. Most of the members of the club are coolies doing some petty business. The members do come and avail the facilities being offered by the club like playing caroms, chess and rummy etc. during their leisure time. The club is having CCTV camera facility and every activity done therein is recorded automatically by CCTV, which will be live for the next fifteen days. After the recent devastating flood in Kerala, under the guise of inspection, the respondent is frequently visiting the club and booking cases against the members of the club for playing rummy and thereby, the conduct and business of the club is affected and members of the club are put to lot of inconveniences and hardships. The main objection of the respondent is that playing rummy is a kind of gambling punishable under Sections 7 and 8 the Kerala Gaming Act, 1960 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner is not applicable in the case on hand. It was his submission that while approving the dictum of Satyanarayana's case, which has some relevance on its efficacy, the case does not seem to have been examined by the learned Single Bench in the social perspective prevalent in India. It was also submitted that the decisions rendered by the Constitution Bench and some by a strength of three Judges were not considered. 9. The learned Amicus Curiae relied on some judgments of the Supreme Court in this regard. Having considered the rival submissions and having considered the larger public interest involved, the matter was heard by us at length though it is not ordinarily required to examine the question in a writ petition seeking police protection. 10. The primary questions that emerge are, (1) Whether the game of rummy is a game of skill or chance liable to be regulated under the Kerala Act or rules framed thereunder? (2) Whether the premises of a club known as 'Sopanam Arts and Sports Club' situated at Angadipuram were being used as a common gaming house? (3) Whether the petitioner, who was the office bearer of the club, at the time of raid by the Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re chance. Rummy on the other hand, requires certain amount of skill because the fall of the cards has to be memorised 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 skill. The chance of Rummy is of the same character as the chance in a deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out there is an element of chance because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone it cannot be said that Rummy is a game of chance and there is no skill involved in it. Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of Rummy or any other game played for stakes, the offence may be brought home. In this case, these elements are missing and therefore, we think that the High Court was right in accepting the reference as it did. (underline supplied) In Satyanarayana's case (supra), the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1960 and the Public Gambling Act, 1867. Kerala Gaming Act, 1960 Public Gambling Act, 1867 Section 2. Definitions.- In this Act, unless the context otherwise requires. (a) common gaming house means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel or place or otherwise howsoever; and include any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming; (underline supplied) (aa) xxxxx xxxxxxxx (b) gaming means wagering, betting or gambling, which includes the organizing, conducting, promoting, marketing or selling of on-line lotteries, but does not include paper lotteries organized conducted or promoted by any State Government or the Central Government. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall, on conviction (be liable to imprisonment which may extend to one month or to fine which may extend to five hundred rupees or to both) and any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming. (underline supplied) (2) Whoever commits any offence relating to gambling by means of on-line lotteries shall be liable on conviction to a fine of rupees twenty thousand or with imprisonment which may extend to two years or with both. 3. Penalty for owning or keeping or having charge of a gaming-house. Whoever, being the owner or occupier, or having the use, of any house, walled enclosure, room or place situate within the limits to which this Act applies, opens, keeps or uses the same as a common gaming-house; and whoever, being the owner or occupier of any such house, walled enclosure, room or place as aforesaid, knowingly or wilfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house; and whoever has the care or management of, or in any manner assists in conducting the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behind other activities like playing of football, badminton, chess and caroms. The learned Senior Government Pleader also maintained that the members of the club are engaged in gambling by way of playing rummy and certain members are professional gamblers. 15. Having regard to the above submissions, learned Amicus Curiae maintained that under Section 16 of the Kerala Act, the offences are cognizable notwithstanding anything contained under the Cr.P.C. According to the learned Amicus Curiae, there is nothing illegal on the part of the Police in registering the case under Sections 7 and 8 of the Kerala Act provided Section 5 of the Kerala Act has been complied with by the Police Officer before making such search or raid in the club. In applying this artificial presumption under Section 6 of the Kerala Act, the court should act with circumspection. 16. Sections 7 and 8 of the Kerala Act which we had already extracted hereinabove is not exactly similar to Sections 3 and 4 of the Hyderabad Gambling Act referred to in Satyanarayana's case (supra). 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 prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit or gain if the person is owning, occupying, using or keeping it. The Kerala Act provides a wider definition and latter part of the definition underlined supra makes it clear in this regard. Section 6 of the Kerala Act provides that any card, dice, gaming table, cloth, board or other instrument of gaming found in any place entered or searched under Section 5, shall be evidence, until the contrary is proved, that such place is used as a common gaming house. Whether the search was conducted in compliance of the requirements under Section 5 of the Act is a matter to be examined and decided by the trial court. When Section 6 of the Kerala Act declares the law that any card, dice etc. seized on search by the authorised officer shall be evidence, until the contrary is proved, it is not proper to set aside the First Information Report at its threshold itself. Based on the materials produced by the prosecution, including the articles seized by the Police Officer, the trial court is the competent forum to decide whether those articles are in fact articles or materials used for gaming purposes, whether search is made in compliance of the provisions under Section 5 of the Kerala Act and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that gambling is an evil and it is rampant, that gaming houses flourish as profitable business and that detection of gambling is extremely difficult, it is not proper to restrain the Police Officials from visiting club premises for inspection from time to time in accordance with law. In the context of game of rummy, the Division Bench followed the Constitution Bench decision of the Apex Court (Five Judge Bench] in State of Bombay v. R.M.D.Chamarbaugwala and another [AIR 1957 SC 699]. We may extract paragraphs 40, 41 and 42 of the judgment as follows:- 40.As far back as 1850, the Supreme Court of America, in Phalen v. Commonwealth of Virginia (1850) 49 U.S.163;12 Law Ed.1030 at p.1033(z) observed: Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with widespread pestilence, of lotteries. The former are confined to a few persons, and places, but the latter infests the whole community; icenters every dwelling; it reaches every class; it prays upon the hard earnings of the poor; it plunders the ignorant and the simple. 41. The observations were quoted with approval, in Douglas v. Commonwealth Kentucky, 1897-168 U.S.48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of our Constitution. 21. In this regard, another aspect has to be noted. Reference was made by the learned Amicus Curiae to the dictum laid down in Sindhi Lohona Choithra Parasram v. State of Gujarat [1967 KHC 714], a Two Judge Bench of the Supreme Court after analysing the law in detail has ruled as follows:- 6............................ The seizure of instruments of gaming in the appellant's house entered under S.6 raises a presumption under S.7 that the house was used as a common gaming house and the persons found therein were then present for the purpose of gaming. In applying this artificial presumption the Court should act with circumspection. Playing cards may be kept and used for innocent pastimes. The presumption can be rebutted if from the prosecution evidence itself it is apparent that there was a reasonable probability of the playing cards not being kept or used as means of gaming or for the profit or gain of the occupier of the house. In the present case, the appellant could not successively rebut the presumption......................... A similar view is expressed by the Supreme Court in a Two Judge Bench decision in MJ Sivani v. State of Karanantak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the expression mere skill would mean substantial degree or preponderance of skill. 22. On a close analysis based on the decisions cited above, as has been rightly submitted by the learned Amicus Curiae, the definition contemplated under the Kerala Act with regard to common gaming house does not exclude rummy for stakes within the club, even if the club is not making profit from the business. Even otherwise, the decision as to whether a first information report submitted before the court under Sections 7 and 8 of the Kerala Act should not be quashed, on the ground that the place wherein the accused was arrested is not a common gaming house, is based ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. The legal position is well settled that when a prosecution at its initial stage is sought to be quashed, the primary test to be applied by the court is as to whether the uncontroverted allegations as made, prima facie, establish the offence. It is for the court to take into consideration any special circumstance, which the court may deem fit and proper to permit the prosecution to continue. Elaborating his subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. In all the aforementioned crimes, the petitioner is an accused and booked by the Police as he was found indulging in gaming for stakes. On investigation of the above referred crimes, it was revealed that the accused were playing pullyvally , pannimalath etc. which are certainly games of chances for stakes. The amounts involved in the aforesaid crimes were seized by the Police in accordance with law from the 'Sopanam Arts and Sports Club' and produced before the jurisdictional Magistrate Court. After investigation, the Police submitted final report before the court concerned and the court took cognizance of the offences punishable under Sections 7 and 8 of the Kerala Act. The cases are now pending consideration before the Judicial First Class Magistrate Court, Perinthalmanna as S.T.Nos. 281/2017, 265/2018 and 298/2018 respectively. 25. While we cannot agree with the point of playing rummy for stakes within the club premises by the professional gamblers as a game of skill, we are of the opinion that the issue has, however, to be looked at from the social perspective as well. Coming to the reliefs sought for in the writ petition, we are of the considered view that if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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