Abraham @ Joy and Others vs State of Kerala

K.A. Mohamed Shafi, J.—Since the contentions raised in all these Crl.M. Cs. are identical, they are heard and disposed of by this common order, though the Petitioners in these M.Cs. are different. In all these cases the Petitioners who are the accused are standing trial for the offences punishable under Sections 7 and 8 of the Kerala Gaming Act.

Crl. M.C. 1149/2000 is filed by the accused in S.T. No. 202/2000 on the file of the Judicial First Glass Magistrate''s Court, Ettumanoor to quash the entire proceedings against them. The allegation made against the Petitioners is that on 3rd January 2000 Petitioners 1 to 11 were found engaged in gaming at the Jyothis Arts and Sports Club situated in building No. 118, Ward No. 9 of Kidangoor Panchayat owned by the 12th Petitioner-12th accused and the playing cards and amount found were seized and the accused were arrested.

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.

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.

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, Kattappana challenging the order in C.M.P. No. 3009/99 dated 20th July 1999 dismissing the petition filed by the Petitioners seeking discharge. The allegation made against the Petitioners arid the 2nd Respondent herein is that they were engaged in gaming at about 9.15 p.m. on 11th November 1998 in the Yuvarasmi Arts and Sports Club situated at 10th mile area in Ward No. III of Kalvarimount kara in Thankamani Village. The learned Magistrate rejected the contention of the Petitioners that they were only playing cards and not gambling and no prima facie case punishable under Sections 7 and 8 of the Gaming Act is made out against them.

The Petitioners in all these cases have contended that they were only engaged in playing cards for pleasure at the respective places and they were not gaming or playing for gain as alleged by the prosecution. They have also .contended that there is no allegation that they were engaged in gaming in a common gaming house. They have further contended that the mandatory provisions of Section 5 of the Kerala Gaming Act are not complied with with regard to the alleged search and seizure in these cases. Therefore, according to them, absoultely no material is available in these cases to make out a prima facie case involving offences punishable under Sections 7 and 8 of the Kerala Gaming Act against them and therefore, the entire proceedings initiated against them should be quashed.

The counsel for the Petitioners submitted that consistent view is taken by this Court from the year 1964 onwards that gaming in private place is not gaming in a common aiming house as defined in Section 2(a) of the Kerala Gaming Act so as to attract the penal provisions of Sections 7 and 8 of the Act. Section 2(a) of the Kerala Gaming Act defines common gaming, house which reads as follows:

Definition.-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 owing, 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 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.

In the decision in State of Kerala v. Scariah (1) 1966 KLT 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 u/s 8 is not maintainable.

In the decision in Kunhikannan v. Asst. S.I. of Polile (2) 1985 KLT 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 such a house. So also, there is no allegation that the other Petitioners or the other accused were present or engaged in gaming in such a common gaming house. Gaming in a private building or place is not made offences. There is nothing to show that it is intended to be prohibited also. Even if the entire averments in, Annexures A-1 to A-3 are taken as correct what is established is only that 8 persons were found gaming in a private apartment used as an office or residence. It is unconnected with a common gaming house. The words used are not ''gaming house'' but ''common gaming house''. Common gaming house indicates that it is a place intended and used frequently as a common place, for the purpose. The existence of such place and gambling conducted there may be public nuisance and the purpose of the Act is to prevent the same and make violations punishable as offences.

In the decision in Anthumayi v. State of Kerala (3) 1999 (1) KLT 149 a Single Judge of this Court has observed as follows:

Admittedly the building XI/172 belongs to the first Petitioner. So, it is a private house. There is no mention of any common gaming house in the first information reprt. The only information the Sub Inspector of Police got was that the Petitioners were gaming in the house of the first Petitioner. Even if the Petitioners were gaming in the house of the first Petitioner, since it is not alleged to be a common gaming house, it cannot constitute an offence.

In the decision in Danykutty v. State of Kerala (4) 1999 (3) KLT 930 a Single Judge of this Court has observed as follows:

The learned Public Prosecutor has contended that presumption in Section 6 of the Act will be attracted. u/s 6 if cards, dice, gaming tables, cloth boards etc. are found in any place entered or searched u/s 5, it shall be evidence, until the contrary is proved, that such place is used as a common gaming house. But such a presumption can be drawn only if the necessary allegations are made. If there is an allegation that the person accused of the offence u/s 7 has allowed the house to be used as a common gaming house and there is evidence of recovery of the above said articles, the presumption u/s 6 will be available. But as noted above, in C.C. 8/99 nobody is accused of keeping a common gaming house. In S.T. 4128/99 also there is no allegation that the first accused was keeping a common gaming house. So, there is no scope for such a presumption also.

Based on the above rulings of this Court the counsel for the Petitioners contended that no ingredients of Sections 7 or 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.

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 the Supreme Court in Jagat Singh Kishor Singh Darbar and Others Vs. State of Gujarat, 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 gaming was actually seen...." The profit or gain mentioned in Clause (ii) of the definition and also the other requirements of that clause are a matter of peremptory presumption which has to be raised by the Court as soon as the seizure of instruments of gaming from the place in question is proved, as is the case here. Admittedly, there is no evidence in rebuttal of the presumption which must therefore be raised and which furnishes a good basis for the conviction of the Appellants.

In that case there was allegation that the Appellants were found present for the purpose of gaming in the house which was owned and being run as a common gaming house by the 1st Appellant. The contention of the Appellants that the said house had not been proved to be a common gaming house within the meaning of definition of the expression occurring in Section 3 of the Bombay Act, is negatived by the Supreme Court and the above observations are made.

It is clear from the judgment of the Supreme Court that if there is an allegation that the accused were engaged in gaming or present in the common gaming house for the purpose of gaming and the instruments of gaming were seized from the premises in question, that circumstance 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 even if no gaming was actually seen.

It is true that the decision reported in State of Kerala Vs. Cherian Secariah and Others, were rendered before the pronouncement of the judgment by the Supreme Court reported in Jagat Singh Kishor Singh Darbar and Others Vs. State of Gujarat, and the decisions reported in 1985 KLT 484, 1999 (1) KLT 149 and 1999 (3) KLT 930 referred to above are rendered without noticing the above judgment of the Supreme Court. It would appear that in the decision reported in 1999 (3) KLT 930 the learned Single Judge departing from the earlier decisions held that u/s 6 of the Gaming Act if cards, dice, gaming tables, loth boards etc. are found in any place entered or searched u/s 5, it shall be evidence, until the contrary is proved, that such place is used as a common gaming house. But such a presumption can be drawn only it the necessary allegations are made to the effect that the person accused of the offence punishable u/s 7 has allowed the house to be used as a common gaming house and there is recovery of the aforesaid articles. Therefore, it is clear that the judgment reported in 1999 (3) KLT 930 is almost in tune with the judgment pronounced by the Supreme Court in Jagat Singh Kishor Singh Darbar and Others Vs. State of Gujarat, .

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 Jagat Singh Kishor Singh Darbar and Others Vs. State of Gujarat, relied upon by the learned Additional D.G.P. has no application to the facts of these cases.

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 Jagat Singh Kishor Singh Darbar and Others Vs. State of Gujarat, , which is as follows:

The opinion of Shah, Acting C.J. was noted with approval in Emperor Vs. Chimanlal Sankalchand, , the reasoning adopted in which may be reproduced with advantage:

Lachchi Ram''s case was considered by a Division Bench of this Court in Emperor Vs. Dattatraya Shankar Paranjpe, and was dissented from. It was held that to consititute a common gaming house it was sufficient if it was one in which instruments of gaming were kept or used for the profit or gain of the person keeping or using such place, i.e., where the person keeping or using the house knew that profit or gain would in all probability result from the use of the instruments of gaming. The profit or gain may not actually result from such use. But if profit or gain is the probable and expected result of the game, itself and if that is the purpose of keeping or using the instruments, it would be sufficient to bring the case within the scope of the definition.

It is argued by Mr. Pochaji on behalf of the accused that even in that case it was observed that ''the prosecution must establish that the purpose was profit or gain and that that might be done either by showing that the owner was charging for the use of the instruments of gaming or for the use of the room or place or in any other manner. The words ''or in any another manner'', (which were used there instead of the words appearing at the end of the definition or otherwise howsoever) cannot be regarded as restricting the profit or gain of the owner or occupier of the house to profit or gain in a manner ejusdem gener is with what precedes those words, and hence even the hope of making a profit out of the gambling itself is sufficient to satisfy the requirement of the definition of common gaming house. It may happen that the occupier of a house may allow it to be used by the public for gambling and he himself may take part in it in the hope of making a profit, althogh he may not necessarily make it every time. Such a hope is sufficient to make the house a common gaming house and the occupier, liable for keeping such a house.

Therefore, if the prosecution succeeded in establishing that the occupier of a private building has used the building as a common gaming house in the above manner, the offence punishable u/s 7 of the Act is attracted against him and the offence punishable u/s 8 of the Act is attracted against the persons found in the premises actually engaged in gaming or otherwise and the presumption u/s 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 KLT 780, State of Kerala Vs. Cherian Secariah and Others, , 1985 KLT 484 and 1999 (1) KLT 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.

The next question to be considered is whether the search, seizure and arrest of the Petitioners in these cases are legal and valid as contemplated u/s 5 of the Kerala Gaming Act.

The Additional D.G.P. vehemently submitted that the conditions stipulated u/s 5 of the Kerala Gaming Act are only directory and not mandatory. He also submitted that even if it is held that the search conducted in these cases is not legal and as contemplated u/s 5 of the Act, the evidence collected on the basis of that search cannot be discarded. According to him, even if evidence is collected illegally, such evidence cannot be thrown out or discarded even though the officer who collected the evidence illegally can be proceeded against. In support of the contention that evidence collected by illegal search is acceptable in evidence, the Additional D.G.P. relied upon several decisions of the Supreme Court including the decisions reported in 1974 S.C. 348 (Pooran Mal v. Director of Inspection etc.) 1980 S.C. 593 [State of Maharashtra v. Natwarlal) and 1985 S.C. 989 (Partap Singh v. Director of Enforcement, F.E.R. Act).

But the above argument advanced by the learned Additional D.G.P. cannot be accepted in view of the judgment of the Supreme Court reported in State of Punjab Vs. Baldev Singh, . In that judgment a five Judges Bench of the Supreme Court has observed as follows:

The judgment in Pooran Mal case has to be considered in the context in which it was rendered. It is a wellsettled proposition of law that a decision is an authority for what it decides and not that everything said therein constitutes a precedent. The Courts are obliged to employ an intelligent technique in the use of precedents bearing it in mind that a decision of the Court takes its colour from the questions involved in the case in which it was rendered.

It is further observed as follows:

The judgment in Pooran Mal case therefore, cannot be understood to have laid down that an illicit article seized during the search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act can be used as evidence of unlawful possession of the illicit article on the person from whom that contraband had been seized during an illegal search. Apart from the position that in Pooran Mal case on facts, it was found that the search and seizure conducted 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 follows:

Thus, even if it be assumed for the sake of argument that all the materal seized during an illegal search may be admissible as relevant evidence in other proceedings, the illicit drug or psychotropic substance seized in an illegal search cannot by itself be used as proof of unlawful conscious possession of the contraband by the accused. An illegal search cannot also entitle the prosecution to raise presumption u/s 54 of the Act because presumption is an inference of fact drawn from the facts which are known as proved. A presumption u/s 54 of the Act can only be raised after the prosecution has established that the accused was found to .be in possession of the contraband in a search conducted in accordance with the mandate of Section 50.

We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case.

The Additional D.G.P. submitted that in the above decision the Supreme Court considered only the effect of search and seizure of the contraband article from the person of the accused in contravention of Section 50 of the N.D.P.S. Act and therefore, the above observations have no application to the facts of these cases pertaining to search u/s 5 of the Kerala Gaming Act and therefore, the articles seized in these cases should be accepted in evidence even if the search is cot in consonance with the provisions of Section 5 of the Kerala Gaming Act.

Though the above decision is rendered by the Supreme Court while considering the effect of seizure of the contraband article in contravention of the mandatory provisions of Section 50 of the N.D.P.S. Act, the principles laid down in the above decision on that aspect are squarely applicable to the facts of these cases also since the prosecution seeks to draw a legal presumption in favour of the guilt of the accused in these cases u/s 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 u/s 6 of the Act should be drawn against the Petitioners due to the mere seizure of those instruments and materials cannot be accepted.

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 of a Head Constable to enter with such assistance as may be found necessary, by night or by day, and by force, if necessary, any such place;

(b) either himself take into custody or authorise such officer to take into custody all persons whom he of such officer finds therein whether then actually gaming or reasonably suspected to have been present for purposes of gaming;

(c) seize or authorise such officer to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming, which are found therein;

(d) search or authorise such officer to search all parts of such place, which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein and also the person of those whom he or such officer so takes into custody; and

(e) seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search.

Section 5 of the Act stipulates four conditions for the competent police officer to search viz., (1) he should have credible information that the place sought to be searched is used as a common gaming house, (2) he should make such enquiry as he may think necessary regarding the information received by him, (3) he should have reason to believe that such place is used as a common gaming house and (4) he should record his reasons for such belief. It is only after complying with the four requirements the competent police officer can conduct search by himself or authorise any police officer not below the rank of a Head Constable to conduct the search of the premises. In these cases apart from stating that the concerned police officer had credible information regarding gaming for gain in the respective premises, there is absolutely no allegation of compliance of the four pre-requisites for conducting search u/s 5 of the Kerala Gaming Act.

In the decision reported in 1964 KLT 9 (Ramakrishna Pillai v. State of Kerala) a Single Judge of this Court has observed as follows:

It will be seen that a search u/s 5 must satisfy certain conditions viz., (1) The officer undertaking the search or issuing a warrant for the search must be of the specified rank, (2) the officer''s belief that a certain place 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.

In the decision reported in K.L. Subbayya Vs. 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 safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment.... We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In view of the matter, the appeal is allowed, the conviction and sentence passed on the Appellant is set aside and he is acquitted of the charges framed against him.

In the decision reported in State of Punjab Vs. Baldev Singh, referred to above the Supreme Court while considering the effect of non-compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act, has laid down as follows:

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial. Finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.

* * * * (8) A presumption u/s 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption u/s 54 of the Act.

A Division Bench of this Court in the decision reported in 2000 (1) KLT 311 (Madhavan v. Excise Inspector), considering the proviso to Section 36 of the Kerala Abkari Act has observed as follows:

In view of the above position, it is clear that Section 36 only provides safeguard to accused during search and even if there is any infraction, that will not vitiate the trial if materials brought on record justify the conviction. It is for the Court to decide what weightage can be attached to the evidence in that regard.

Therefore, it is clear that the question whether the searching officer in these cases has conducted the search after complying with the requirements of Section 5 of the Kerala Gaming Act is a matter to be considered at the trial stage and the prosecution of the accused cannot 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.

The presumption available u/s 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 u/s 6 of the Act that it was a common gaming house. The above principle is laid down in the decision reported in Bhimrao Trimbakrao Ingle and Others Vs. 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 u/s 7.

The Petitioners vehemently contended that the allegation made against them is that they were found playing cards in the respective clubs which will not constitute the offences punishable under Sections 7 and 8 of the Kerala Gaming Act. According to them, they have been playing cards as support game of 56 which is a skilled game and without paying any amount to the club or to its Secretary for playing cards. They have also contended that they were playing the game of 56 by support without paying anything to the club, for pleasure and recreation for which purpose the club itself was set up and therefore, the prosecution of the Petitioners in these cases is absolutely illegal and unsustainable. In support of the above contention the Petitioners have relied upon the decision reported in State of Andhra Pradesh Vs. K. Satyanarayana and Others, . In that case the allegation was that the accused were gambling in a club. Even though the playing cards were supplied to the players by the club at an extra charge of Rs. 3 and there was a sitting fee of 50 Ps. per person from those who joined the game and if the game is continued beyond a certain time in the night a late fee was also levied, the Supreme Court held that as the club was not making profit or gain to render the club into a common gambling house, the offences punishable under Sections 3 and 6 of the Hyderabad Gaming Act, are not attracted. It is farther held that game of Rummy is not a game entirely of chance and it is mainly a game of skill and if only 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 offences punishable under Sections 3 and 14 of the Hyderabad Gaming Act will be brought home.

The above decision of the Supreme Court is of no help to the Petitioners at this stage in these proceedings seeking to quash the prosecution launched against them. The question whether the Petitioners were playing support game which is a skilled game according to them and whether they were gambling or gaming for stakes as alleged by the prosecution, is to be considered by the trial Court at the stage of evidence. Moreover, the observations made by the Supreme Court in the above decision reported in. State of Andhra Pradesh Vs. K. Satyanarayana and Others, has to be considered in the light of the subsequent decision of the Supreme Court reported in Jagat Singh Kishor Singh Darbar and Others Vs. State of Gujarat, 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.

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 u/s 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.

It is well settled that search and seizure are the essential steps in the investigation of a criminal case available to the investigating officer, even though the Code of Criminal Procedure and the various special enactments have provided several safeguards for the liberty of the citizen who is suspected in the case and whose person of premises is to be searched from ill-founded and frivolous prosecution or harassment. Therefore, the principle laid down in those decisions are applicable to the facts of these cases also.

The Additional D.G.P. submitted that even if it is found that the Petitioners in these cases are not guilty of the offences punishable under Sections 7 and 8 of the Kerala Gaming Act, the Petitioners in Crl. M.C. Nos. 1149/2000, 1360/2000 and 6335/1999 will be liable for the offence punishable u/s 15 of the Act since they were found gaming in a public place in the respective clubs. In order to constitute a public place it is not necessary that the place should be a public property. Even if it is a private property, it can be proved that public could have access to the place and the members of the public had in fact access and resort to the place. That is a fact to be established in evidence. Therefore, the question of applicability of the offence punishable u/s 15 in those cases is a matter to be considered by the trial Court.

It is clear from my foregoing discussions that the contention of the Petitioners that the prosecution proceedings initiated against them alleging offences punishable under Sections 7 and 8 of the Kerala Gaming Act are liable to be quashed since there is absolutely no allegation in the charge-sheet laid against them or any material on record to the effect that they were engaged in gaming in a common gaming house and the alleged search, seizure and arrest of the Petitioners are illegal for non-compliance of the mandatory provisions of Section 5 of the Act, cannot be accepted at this stage. Those contentions are to be established before the trial Court at the stage of trial. Therefore, I find absolutely no ground to quash the proceedings initiated against the Petitioners by invoking the inherent jurisdiction of this Court u/s 182 of the Code of Criminal Procedure.

Therefore, these Crl. M. Cs. are dismissed. The Petitioners will be at liberty to urge all the contentions raised by them in these petitions before the trial Court.