2000 (7) TMI 1013 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of gaming activities under Sections 7 and 8 of the Kerala Gaming Act.
2. Definition and application of "common gaming house" under the Kerala Gaming Act.
3. Compliance with mandatory provisions of Section 5 of the Kerala Gaming Act regarding search and seizure.
4. Admissibility of evidence obtained from alleged illegal searches.
5. Applicability of Section 15 of the Kerala Gaming Act for gaming in a public place.

Issue-wise Detailed Analysis:

1. Legality of Gaming Activities under Sections 7 and 8 of the Kerala Gaming Act:
The Petitioners were accused of engaging in gaming activities punishable under Sections 7 and 8 of the Kerala Gaming Act. They contended that they were merely playing cards for pleasure and not for gain, thus not violating the Act. The court noted that the consistent view from previous judgments indicated that gaming in private places did not constitute an offense under Sections 7 and 8 unless it was in a "common gaming house."

2. Definition and Application of "Common Gaming House":
The definition of "common gaming house" was pivotal in determining the applicability of Sections 7 and 8. The court referred to the definition under Section 2(a) of the Kerala Gaming Act and previous judgments which clarified that private places used for gaming without profit or gain to the owner did not qualify as common gaming houses. However, the Supreme Court's decision in Jagat Singh v. State of Gujarat emphasized that the seizure of gaming instruments from a place could raise a presumption that the place was used as a common gaming house, shifting the burden of proof to the accused.

3. Compliance with Mandatory Provisions of Section 5 of the Kerala Gaming Act Regarding Search and Seizure:
The Petitioners argued that the mandatory provisions of Section 5, which stipulate conditions for search and seizure, were not complied with. The court highlighted that Section 5 required credible information, necessary inquiry, reasonable belief, and recorded reasons for such belief before conducting a search. The court found no allegations or evidence of compliance with these prerequisites in the cases at hand.

4. Admissibility of Evidence Obtained from Alleged Illegal Searches:
The Additional D.G.P. argued that evidence obtained from illegal searches should still be admissible. However, the court referred to the Supreme Court's judgment in State of Punjab v. Baldev Singh, which held that evidence obtained from illegal searches could not be used to prove unlawful possession of contraband. The court applied this principle to the Kerala Gaming Act, stating that instruments of gaming seized in violation of Section 5 could not be used as evidence against the Petitioners.

5. Applicability of Section 15 of the Kerala Gaming Act for Gaming in a Public Place:
The Additional D.G.P. contended that even if the Petitioners were not guilty under Sections 7 and 8, they could be liable under Section 15 for gaming in a public place. The court noted that whether a place was public depended on whether the public had access to it, which was a matter to be established at trial.

Conclusion:
The court concluded that the allegations against the Petitioners did not warrant quashing the proceedings at this stage. The issues of whether the premises were common gaming houses and whether the searches complied with Section 5 were matters to be determined at trial. The court dismissed the Crl. M.Cs, allowing the Petitioners to raise their contentions during the trial.