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TMI Blog2014 (1) TMI 1930X X X X Extracts X X X X X X X X Extracts X X X X ..... s: Crl. M.C. No. 3124/2011 Allegation in the FIR against the petitioners is that on 10/03/2011 while the police party was patrolling, they got reliable information that the petitioners were engaged in gaming in 'Fraser Hall Club'. The Detecting officer and party went to the place and found seven persons playing cards in violation of the provisions of the Act. Crl. M.C. No. 3350/2011 Petitioners were found playing Rummy in a club by name 'Travancore Club' on 31/12/2010 at about 22 hours and an amount of Rs. 2,10,290/- was recovered from the place. Crl. M.C. No. 4083/2011 On 22/08/2011 at 18.30 hours, petitioners/accused were found playing a game called "pannimari" in Room No. 101 of Plantation Valley Resort and an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collection, soliciting, receipt or distribution; 4. The offences charged, against the petitioners fall under Sections 7 and 8 of the Act, which read as follows: 7. Penalty of opening, etc., a common gaming house.-- Whoever opens, keeps or uses, or permits to be used any common gaining house, or conducts or assists in conducting the business of any common gaming house or advance or furnishes money for gaming therein, shall be liable on conviction to fine not exceeding five hundred rupees, or to imprisonment not exceeding three months, or to both. 8. Penalty for being found gaining in a common gaming house.-- Whoever is found gaming or present for the purpose of gaming in a common gaming house shall, on conviction be liable to imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the accused. If by a mere search the presumption is allowed to be raised it is likely to affect innocent persons. That is the reason why the provisions of Section 5 are incorporated. The provisions of Section 5 will have to be taken as mandatory and observed strictly. Non-compliance of the provisions must therefore vitiate the search and the entire consequential proceedings. If only there is clear evidence to show that all the formalities under Section 5 are observed the presumption under Section 6 will become available. Otherwise, it may result in implication of innocent persons and thereby miscarriage of justice. That must be the reason why all the precautionary measures are provided. 7. Learned counsel placed reliance on a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment therein. Under Section 8m persons who are found gaming in a common gaming house are liable for conviction and punishment. It is unfortunate that a number of cases booked under the Kerala Gaming Act are either quashed or end in acquittal as the investigating officers do not understand what really constitutes a common gaming house and do not collect evidence on that aspect..... 8. Learned counsel appearing for the petitioners in Crl. M.C. No. 3350/2011 contended that besides the above legal provisions, this case stands on a different footing because going by the allegations in the final report, the petitioners were playing Rummy, which is a game of skill. The decision rendered by the Supreme Court in State of A.P. v. K. Sathyanarayana a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR or in the final report that the accused were found playing cards in a common gaming house. 10. Learned prosecutor would submit that the allegations are sufficient to attract the offences under Sections 7 and 8 of the Act as they were playing cards for gain. I carefully went through the first information and the final reports and all these cases. I am at loss to find any allegation that the accused were found engaged in gaming as defined under the Act in a common gaming house run for profit or gain of the person owing as defined in Section 2(a) of the Act. Section 7, as quoted above, would reveal that the penalty is for opening, keeping etc. and to be used any common gaming house. In the absence of any allegation that the place of allege ..... X X X X Extracts X X X X X X X X Extracts X X X X
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