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TMI Blog2020 (7) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020, around 06.30 pm, near Kaduthula Junction, found the petitioner and four others playing cards near a thorny bush and therefore, he arrested the accused, recovered the cards and money and registered the case for the offence under Section 12 of the Act. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also in the entire Country, such online games, viz., RummyPassion, Nazara, LeoVegas, Spartan Poker, Ace2Three, PokerDangal, Pocket52, My11Circle, Genesis Casino, etc., are mushrooming and there are so many advertisements appearing in almost 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .It has been repeatedly held that running of a common gaming house is a primordial requisite before a person could be convicted for an offence under Sections 8 and 9 of the Act and gaming is not offence per se. Even assuming 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. Tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse such online skill games, based on a query posed by this Court while admitting this petition, this Court is inclined to discuss the issue in detail. 22. The gaming industry in India is undergoing a dramatic 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 pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbidden practices. Verse 227 calls gambling a vice causing great enmity and advises wise men not to practice it even for amusement. The concluding verse 228 provides that on every man who addicts himself 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, dic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 could 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. Money, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding squarely applies to the present case. Even from the submissions and contentions of respondent-company and factual position admitted in writ petition, I am of the view that playing 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h couplet of Thirukkural described the evils of gambling as follows: which means- "There is nothing else that brings poverty like gambling which 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 Rs. 10/- (Say). The winner will get the amount that he put in place, ie., Rs. 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evented the suicidal deaths, who have not only lost their hard earned money but also their family 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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