Bombay High Court
Galib Hussain Khan vs State Of Maharashtra And Ors. on 8 October, 2003
Author: Ranjana Desai
Bench: Ranjana Desai, P.V. Kakade
JUDGMENT Ranjana Desai, J.
1. The petitioner claims to be a social worker. He is the Vice President of Republic party of India, Mumbai Pradesh. He is also a Special Executive Officer. It is his grievance that in Ghatkopar area, there are several clubs which are gambling dens. He has named certain clubs in this petition. They are, Shalimar Social Club, Kohinoor Social Club, Welcome Social Club and Amar Social Club. The sum and substance of the petition is that though several complaints have been lodged by the petitioner and others, the police have not taken their cognizance. Where cognisance is taken, police have not properly investigated those complaints. It is also stated in the petition that on some petitions, this court has passed orders that the police shall not interfere with the legal activities of the clubs, however, that shall not prevent the police from taking action if illegal activities are carried on in the said clubs. It is stated that these clubs are taking undue advantage of this order. They are carrying on gambling in these clubs. However, no cases are registered against them. It is suggested that gambling is being done under the patronage of the police.
2. An intervention application has been filed on behalf of Shalimar Club. Since there are certain allegations made against that club also, in the interest of justice, we have granted that application.
3. We have heard learned counsel Mr. Maniar for the petitioner, Mr. Janardhanan, learned Addl. Advocate General and Mr. Singhal, learned Addl.P.P. for the State and Mr. Mundargi for the intervenor.
4. In response to this petition, Shri Fattesingh Sohanrao Gaikwad, Senior Inspector of Police attached to Ghatkopar Police Station has filed his affidavit. In this affidavit, it is stated that two writ petitions, being Criminal Writ Petition No. 1655 of 2000 and Criminal Writ Petition No. 1767 of 2000, making similar allegations were filed in this court and they were withdrawn. It is also pointed out that Criminal Writ Petition Nos. 923 of 1997, 924 of 1997 and 925 of 1997 were filed by the said social clubs and in all these petitions, an order has been passed by the learned Single Judge of this court that the police should not interfere with the normal lawful activities of the petitioner club. It is further observed that this order will not come in the way of the police from taking any action against the club or its members, if any gambling prohibited by law or any unlawful activity prohibited under the provisions of the Bombay Policy Act or any other law for the time being in force is carried on and in such a case the police can taken action according to law. Similar order has been passed in Criminal Writ Petition No. 460 of 2001 and in Criminal Writ Petition No. 461 of 2001. Criminal Writ Petition No. 920 of 2003 has been disposed of by observing that the petitioner has remedy of filing a complaint.
5. The affidavit further goes on to state that contents of paragraphs 7 and 8 of the petition, wherein names of certain complaints and details of their complaints have been given are false; that Ghatkopar police has carried out surprise raids but no evidence was found to show that gambling is going on in these clubs; that persons mentioned in paragraphs 9 and 10 were contacted and an enquiry was made about these complaints but two of the complainants, who lost money, refused to co-operate with the police while the other two complainants are not traceable. The affidavit ends with an assurance that the said clubs are constantly under police vigilance and their records have been checked from time to time.
6. Affidavit of Manojkumar S. Lohiya, Deputy Commissioner of Police, Zone - VI, Mumbai, filed in Criminal Writ Petition No. 1655 of 2000 is also filed in this petition. The allegations made in that petition are admittedly of similar nature. We find that even the Deputy Commissioner of Police has stated that, as on the date when he filed the affidavit i.e. on 18/12/2000, the allegations made by the petitioner therein were verified by the police and found to be false and baseless. Affidavit of Sambhaji Vishwas Jagtap, Inspector of Police attached to Ghatkopar Police Station filed in Criminal Writ Petition No. 1655 of 2000 is also on similar lines. He has stated that all the complaints are false. In his affidavit dated 9/1/2001 filed in Criminal Writ Petition No. 1767 of 2000, Pratap Singh Shiv Mangal Singh Thakur, the then Senior Inspector of Police attached to Ghatkopar Police Station has stated that pursuant to the application received by him from one Shabbir Hussain Dada Miya against Shalimar social Club and Kohinoor Social Club, he visited the said clubs and found them closed. When P.S.I. Mohite raided Welcome Social Club, it was closed. He has referred to a number of attempts made by the police and has stated that on all these occasions, these clubs were closed. He has also stated that the said clubs are under twenty four hours' surveillance. We may note, at this stage, that a statement has been made before us today that all these clubs are open.
7. The earlier petitions making similar allegations have either been withdrawn or disposed of with orders, the gist of which we have quoted hereinabove. Similar affidavit is filed today. The police apparently find nothing wrong with these clubs. We will, therefore, pass a similar order. We direct that the police authorities should not interfere with the lawful activities of the social clubs situated within its jurisdiction. However, this order will not come in the way of the police authorities from taking any action against the said clubs or its members, if any gambling prohibited by law or any other unlawful activity is done in the premises or in the club which is prohibited under the provisions of the Bombay Prevention of Gambling Act. Bombay Police Act or any other law. In such a case, police can take any action according to law.
8. But we cannot close this issue without putting on record our observations and certain guidelines for future.
9. After recording all the affidavits, we got an impression that in the Ghatkopar area, gambling activities have completely stopped. We were happy but rather surprised by this and, therefore, we asked the Additional Advocate General to get the record of the Ghatkopar Police Station for the last three years. Accordingly, the Senior Inspector of Police of Ghatkopar Police Station has furnished to us the statement under the caption "Action Taken under the Bombay Prevention of Gambling Act, 1887" (Gambling Act for short. It appears that, in the year 2001, 27 cases of roadside gambling have been registered. One case is registered under Sections 4(a) and 5 of the Gambling Act. In the year 2002, 31 cases of only roadside gambling are registered. In this year, only 3 cases of roadside gambling have been registered. Therefore, it appears that according to the police, the clubs in question are not involved in gambling activities.
10. We have already noted that time and again this court has asked the police to allow lawful activities to go on and take action if illegal activities are going on. In this case also, we have passed a similar order. In fact, this is stating the obvious. The police are always expected to allow lawful activities and prevent unlawful activities. But the question is when, how and who is going to determine what are illegal activities and whether they are, in fact, going on at any particular place.
11. It is admitted by Shri Gaikwad, Senior Inspector of Police, Ghatkopar Police Station in his affidavit that social clubs allow its members to play Rummy, which is a game of skill. It is true that Rummy is a game of skill and playing Rummy is not gambling. But the police officers would do well to read the judgment of the Supreme Court in The State of Andhra Pradesh v. K. Satyanarayana and Ors., . Following observations are vital:
"The game of Rummy is not a game entirely of chance like the "three-care" game. The 'three card' game which goes under different names such as 'flush', brag' etc. is a game of pure chance. Rummy on the other hand, requires certain amount of skill because the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holing and discarding cards. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out, there is an element of chance, because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone, it cannot be said that Rummy is a game of chance and there is no skill involved. Of Course, if 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 offence may be brought home.
(emphasis supplied.)
12. It is also stated by Shri Gaikwad that attempt to send a bogus member was not successful because the clubs do not allow non-members to come in. We do not think that the police are helpless in such a situation. It is for the police to find out ways to check whether gambling is going on in clubs. Investigation is their domain and it is not for us to tell them how to carry out their investigation.
13. We also feel that surprise raids should be surprise raids in real sense of the term. If on all occasions when raids are carried out clubs are found to be closed or no gambling is detected, lurking doubt is created whether raids are really surprise raids or an eyewash. We do not mean to suggest that the police raids in this case are raids with prior intimation. But when such doubts are expressed, the Commissioner of police should exploit the possibility of giving his job not to the local police but to some independent agency. That will prevent such allegations being levelled against the police.
14. We must also make it clear that this does not mean that the police should go on indiscriminately raiding social clubs by misinterpreting our order. Only genuine complaints have to be properly investigated. Raids have not to be carried out to compete a quota for public consumption. A right balance has to be struck.
15. So far as the present petitioner is concerned, he must note that the remedy of writ petition is not to be used to settled private scores. If there are attempts to put up people to file repeated petitions making same allegations with ulterior motive, it would not be difficult for this court to deal with them with a firm hand.
16. We dispose of this petition with the above observations. Office is directed to send a copy of this judgment to the Commissioner of Police, Bombay.