9911796707
TMI Blog2000 (7) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... 2th accused and the playing cards and amount found were seized and the accused were arrested. 3. The Petitioner in Crl. M.C. No. 1360/2000 is accused No. 16 in S.T.C. No. 8/99 on the file of the Judicial First Class Magistrate's Court-I, Kannur. The allegation made against him is that on 22nd August 1998 at about 5.15 p.m. accused Nos. 1 to 17 were found engaged in gaming for gain in the upstair portion of building No. PP X/485 of Pallikunnu Panchayat wherein the Chalad Recreation Club and Udaya Vayanasala are being conducted and they were arrested and the playing cards and Rs. 5,820 were seized from them. 4. Crl. M.C. 6310/99 is filed by the accused in S.T. No. 185/99 pending before the Judicial First Class Magistrate's Court, Kattappana. It is alleged that on 21st February 1999 accused 2 to 17 were found engaged in gaming called in the building owned by the 1st Petitioner-1st accused at Kattappana and the playing cards and amount of Rs. 13,602 were seized from the scene of occurrence while the accused were arrested. 5. Crl. M.C. 6335/99 is filed by accused 1, 2 and 4 to 11 in S.T. No. 56/99 on the file of the Judicial First Class Magistrate's Court, Kattapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, enclosure, vehicle, vessel or place opend, kept or used for permitted to be opend, kept or used for the purpose of gaming. Section 2(b) of the Act stipulates that gaming does not include a lottery but includes wagering or betting. 8. In the decision in State of Kerala v. Scariah (1) 1966 K.L.T. 780 a Single Judge of this Court has observed as follows: From the definition of 'common gaming house' it would appear that the place referred to in the section must be akin to a house, room, tent, enclosure, vehicle or vessel and if must have been kept, used etc. for gaming and for the profit or gain of the person owing, occupying etc. There can be no doubt that the compound where the accused were found gaming will not come within the meaning of the term 'common gaming house' and that being so, the conviction under Section 8 is not maintainable. 9. In the decision in Kunhikannan v. Asst. S.I. of Polile (2) 1985 K.L.T. 484 a Single Judge of this Court has observed a$ follows: There is absolutely no allegation regarding the existence or preservation of a common gaming house. There is not even a whisper that the first Petitioner is conducting or preserving s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no allegation that the first accused was keeping a common gaming house. So, there is no scope for such a presumption also. 12. Based on the above rulings of this Court the counsel for the Petitioners contended that no ingredients of Sections 7 and 8 of the Kerala Gaming Act is made out in any of these cases. Therefore, according to them, in view of the consistent view taken by this Court in all these years, the prosecution launched against the Petitioners in these cases should be quashed. 13. The additional D.G.P. appearing for the, Respondent-State submitted that the above decisions of this Court relied upon by the counsel for the Petitioners cannot be accepted as good law in view of the decision of the Supreme Court in Jagat Singh v. State of Gujarat A.I.R. 1979 S.C. 857 wherein the Supreme Court has observed as follows: It is not disputed that instruments of gaming were seized from the premises in question in both the appeals. That circumstance, according to the section, shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were present for the purpose of gaming, although no gamin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a common gaming house and there is recovery of the aforesaid articles. Therefore, it is clear that the judgment reported in 1999 (3) K.L.T. 930 is almost in tune with the judgment pronounced by the Supreme Court in A.I.R. 1979 S.C. 857. 17. In none of the above four cases there is an allegation that the premises in which the Petitioners-accused were allegedly engaged in gaming for gain are being used as a common gaming house, apart from the allegation that they were actually engaged in gaming when the concerned police officer searched the premises. Therefore the counsel for the Petitioners submitted that the decision reported in A.I.R. 1979 S.C. 857 relied upon by the learned Additional D.G.P. has no application to the facts of these cases. 18. The above contention raised by the Petitioners cannot be accepted in view of the observations of Justice Shah, Acting Chief Justice of the Bombay High Court, quoted with approval by the Supreme Court in para 5 of the judgment in A.I.R. 1979 S.C. 857, which is as follows: The opinion of Shah, Acting C.J. was noted with approval in Emperor v. Chimanlal Sankakhand (A.I.R. 1945 Bom. 305) (Supra), the reasoning adopted in which may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 6 of the Act is available in favour of the prosecution which has to be rebutted by the accused. In that view the sweeping observations made by the Single Judges of this Court in the decisions reported in 1966 K.L.T. 780, A.I.R. 1967 Ker 106, 1985 K.L.T. 484 and 1999 (1) K.L.T. 149 to the effect that gaming in a private building or place is not made an offence punishable under the Kerala Gaming Act unless and until it is alleged and proved to be a common gaming bouse, cannot be accepted as laying down the correct law on the point especially while considering the petitions filed by the accused to quash the prosecution at the threshold by invoking the provisions of Section 482 of the Code of Criminal Procedure in view of the above decision of the Supreme Court reported in 1979 S.C 857. Therefore, the contention of the Petitioners that since there is no allegation in any of these cases that the premises from where the Petitioners were allegedly engaged in gaming are common gaming houses, the ingredients of the offences punishable under Sections 7 and 8 of the Kerala Gaming Act are not made out against the Petitioners, is not sustainable. 20. The next question to be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nducted in the cases under consideration in that case were not vitiated by any illegality, the import of that Judgment, in the present contest, can only be to the effect that material seized during search and seizure, conducted in contravention of the provisions of Section 132 of the Income Tax Act cannot be restrained from being used, subject to law, before the Income Tax Authorities in other legal proceedings against the persons, from whose custody that material was seized by issuance of a writ of prohibition. It was not the seized material, in Pooran Mal case which by itself could attract any penal action against the assessed. What is implicit from the judgment in Pooran Mal case is that the seized material could be used in other legal proceedings against an Assessee, before the Income Tax Authorities under the Income. Tax Act, dealing with escaped income. It is, therefore, not possible to hold that the judgment in Pooran Mal case can be said to have laid down that the 'recovered illicit article' can be used as proof of unlawful possession of the contraband seized from the suspect as a result of illegal search and seizure. The Supreme Court has further observed as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused in these cases under Section 6 of the Act on the basis of the articles or instruments of gaming alleged to have seized in these cases and use them as evidence in these cases against the Petitioners. Therefore, the submission made by the learned Additional D.G.P. that the instruments of gaming such as cards etc. and money seized in these cases even in violation of Section 5 of the Act can be used as evidence against the Petitioners in these cases and a presumption under Section 6 of the Act should be drawn against the Petitioners due to the mere seizure of those instruments and materials cannot be accepted. 25. The further question to be considered is whether the search conducted in these cases is legal and valid. Section 5 of the Kerala Gaming Act reads as follows: Power to enter and search.-If a Magistrate or any Police Officer not below the rank of Sub Inspector of Police upon credible information and after such enquiry as he may think necessary, has reason to believe that any place is used as a common gaming house, he may- (a) after recording his reasons for such belief, either himself enter or by his warrant authorise any office of police not below the rank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is used as a common gaming house must be based on credible information and enquiry and (3) the officer must record the reasons for such belief. Admittedly there is no such record in this case, nor is there any explanation why such a record was not made. Indeed P.W. 1 seems to have been entirely unaware of the necessity of such a procedure. It may be pointed out that the rule enjoining the officer conducting or authorsing the search to make a record of his reasons is not to be found in the Gaming Acts in force in most of the other States. This indicates that our Legislature purposely added this provision to minimise the possibility of misuse of the wide powers of entry, search and seizure given under the Act which might considerably result in the harassment of respectable householders. Such statutory provisions clearly do not merit total disregard. 28. In the decision reported in A.I.R. 1979 S.C. 711 (K.L., Subhayya v. State of Karnataka) the Supreme Court after considering the provisions of Section 54 of the Mysore Excise Act stipulating to record the grounds of belief of the searching officer, observed as follows: We feel that both Sections 53 and 54 contain valuable safegua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be thrown out at the threshold on the allegation that the provisions of Section 5 of the Kerala Gaming Act are not complied with by the searching officer in these cases without giving an opportunity to the prosecution to establish ft the stage of trial that the requirements of Section 5 of the Act are complied with in these cases. 32. The presumption available under Section 6 of the Kerala Gaming Act will be available only after establishing that the search and seizure in these cases are legal and valid. If the prosecution fails to establish that there was gaming in the common gaming house by adducing satisfactory evidence to the effect that search was conducted complying with the provisions of Section 5 of the Act and the instruments of gaming etc. are seized, they cannot seek to draw a presumption under Section 6 of the Act that it was a common gaming house. The above principle is laid down in the decision reported in A.I.R. 1987 S.C. 533 (B.T. Ingle v. State of Maharashtra) wherein it was observed as follows: What is not a 'common gaming house' in fact in the light of the evidence cannot become a common gaming house by reason of presumption under Section 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t decision of the Supreme Court reported in A.I.R. 1979 S.C. 857 referred to by me in extension the preceding paragraphs of this order. Therefore, the above contention raised by the Petitioners being a matter to be established at the stage of evidence, cannot be countenanced at the threshold to quash the prosecution initiated against them. 35. The contention of the Petitioners that in view of the fact that a special and particular node is prescribed by the special statute viz. Kerala Gaming Act regarding search and seizure under Section 5 of the Act unconnected with the procedure of search and seizure provided in Section 94 of the Code of Criminal Procedure, the specific mode provided in the special statute for search and seizure should be scrupulously adhered to and the decisions referred to above regarding search and seizure under the provisions of the N.D.P.S. Act, Abkari Act etc. which lay down search and seizure in those acts as provided under the provision? of Code of Criminal Procedure with added protection provided in those enactments are not applicable to the facts of these cases, is not sustainable. 36. It is well settled that search and seizure are the essential st ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
