Danykutty David and Others vs State of Kerala

K.V. Sankaranarayanan, J.—The prayer in these two petitions are for quashing the chargesheets u/s 7 and 8 of the Kerala Gaming Act. Crl.M.C. 4067/99 is to quash the complaint in C.C.8/99 pending before the Judicial First Class Magistrate-III, Thiruvananthapuram. The prayer in Crl.M.C.4093/99 is to quash the complaint in S.T.4128/99 on the file of the Judicial First Class Magistrate, Irinjalakuda. As common points are involved, these petitions have been heard together. In C.C. 8/99, the prosecution case is that five accused persons therein were seen engaged in a game of cards for stakes in a room in a hotel. The receptionist in the hotel is the first witness. According to his case dairy statement the police party came and conducted a raid and found persons engaged in a game of cards and the Sub Inspector arrested them and also recovered a substantial amount from them. It is argued for the petitioners, who are named as accused persons that the charge sheet does not make out an offence u/s 7 and 8 of the Act. The petitioners have some explanation for the possession of the money recovered from them. Reliance is placed on the ruling in Kunhikannan and others v. Assistant Sub Inspector of Police (1985 KLT 484) and it is contended that the petitioners were not engaged in gaming in a common gaming house and so no offence is made out. Reliance is placed on a more recent ruling of this Court in Anthumayi v. State of Kerala (1999 (1) KLT 149) also.

The prosecution case in S.T.4128/99 Judical First Class Magistrate. Irinjalakuda is that 9 accused persons were found engaged in a game of cards for stakes in the house of the first accused''s wife. She is cited as the 7th witness for the prosecution. There also it is contended that the petitioners were not engaged in gaming in a common gaming house and so no offence is made out.

In the decisions cited above, it has been held that gaming in a common gaming house alone will constitute an offence. Playing cards in a private house or a room in a lodging house cannot constitute an offence. Learned Public Prosecutor however contends that the place will come within the definition of a common gaming house. Common gaming house is defined in Section 2(a) of the Kerala Gaming Act, 1960 as 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 owning, occupying, using or keeping such house, room, tent, enclosure etc. Whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure etc. Thus from the definition it is seen that even a residential house or a room in a hotel can be converted into a common gaming house if the other requirements in the definition are satisfied. But what really makes it a common gaming house is that the gaming must be permitted or the instruments for the game must be kept there for the profit or gain of the person owning, occupying or using or keeping it. Only then, it will become a common gaming house. u/s 7, opening, keeping or using or permitting to use a common gaming house is that offence, which invites in punishment therein. u/s 8, 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. As noted above, in C.C.8/99, the gaming was detected in a hotel room. There is no allegation that either the owner of the hotel or any one running the hotel permitted the premises to be used for gaming for profit or gain. There is no allegation that the person who could have taken it on rent had allowed the room to be used for the purpose for his profit organ. Similarly, in S.T.4128/99 also there is no allegation that the residential house was allowed to be used for purposes of gaming either by C.W.7, the owner or her husband, who is the first accused in the case. Only if C.W.7 or her husband had permitted to use the premises as a gaming house for their profit or gain, it will become a common gaming house, constituting an offence u/s 7 of the Act. There is no such allegation in the complaint. 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.

As seen above, in neither case an offence under Sections 7 and 8 of the Gaming Act is made out, so, the charges are liable to be quashed. Accordingly, these petitions are allowed. The proceedings in C.C. 8/99 on the file of the Judicial First Class Magistrate-III, Thiruvananthapuram and S.T. 4128/99 on the file of Judicial First Class Magistrate, Irinjalakuda are hereby quashed.