Andhra HC (Pre-Telangana)
Patamata Cultural And Recreation ... vs Commissioner Of Police And Ors. on 9 December, 2004
Equivalent citations: 2005(1)ALD772, 2005(1)ALD(CRI)243, 2005(1)ALT439
ORDER P.S. Narayana, J.
1. Heard the Counsel.
2. M/s. The Patamata Cultural and Recreational Society, Registered No. 114/97, represented by its President Pemmasani Narasimha Rao filed this Writ Petition against the Commissioner of Police, Vijayawada and others for a Writ of Mandamus or any other appropriate writ declaring that the action of the respondents/ police authorities in directing the closure of the activities of the petitioner-society with effect from 31 -3-1997 as arbitrary, illegal and without jurisdiction and consequently direct the respondent not to interfere with the lawful activities of the petitioner-society at premises No. 73-1-12A, B & C, Bandar Road, Patamata, Vijayawada, Krishna District including provision to the members and guests to play game of rummy with stakes and grant such other relief as it deems fit and proper in the circumstances of the case.
3. This Court issued Rule Nisi and in W.P. MP. No. 8332/97 on 4-4-1997 directed the respondents not to interfere with the lawful activities of the petitioner's society.
4. The petitioner is a registered society with Registration No. 114/97 and contains life members and ordinary members. The activities of the petitioner include providing cultural and recreational facilities to its members and guests such as indoor games like shuttle, gym, swimming pool, billiards, indoor auditorium, card room and open place wherein the game of tambola is conducted. It is stated that the petitioner has been carrying on its activities from the date of registration by obtaining necessary licence/ permission from the authorities. It is also stated that in so far as provision of card room by the petitioner is concerned, the petitioner is equipped with a card room for its members and guests and in the card room the petitioner permits the game of rummy only. The game of rummy is played on stake and also the game of syndicate (pool game). It is specifically averred that the petitioner does not allow any other game of cards other than the game of rummy which is played by 13 cards. In so far as collection of money is concerned, the petitioner collects only such quantum as is necessary for the maintenance and providing facilities to the members. As a matter of fact, all the members of the petitioner-society have been cooperative in the matter and the respondents-police authorities made several inspections and noticed that the petitioner allows the game of rummy alone and no other game of cards. It is also stated that the petitioner had been recognized as one of the popular societies and members and guests from distant places visit the petitioner premises and avail facilities provided by the petitioner. The petitioner has been allowing its card room for members only. It is further stated that while so, the respondent/authorities by oral instructions dated 31-3-1997, particularly the 2nd respondent, had insisted that the petitioner shall not carry on any of its activities. Thus from 31 -3-1997 the petitioner had complied with the oral instructions of the respondents and accordingly the same had been closed. In spite of the fact that the petitioner had requested the respondents to give reasons or issue an order in writing, the respondents/ police authorities had not accepted the same and thus the activities of the petitioner had come to a halt from 31-3-1997 and as a consequence the members of the petitioner who had contributed huge amount as fee had been enquiring the office bearers of the petitioner as to the reason for the closure of the activities of the petitioner-society. As the respondents had not passed any orders in writing and as the requests from the petitioner to that effect did not evoke any response, the petitioner is unable to explain to its members as to the reasons which led to the closure of the petitioner society. It is also stated that as a consequence of closure the staff and employees of the petitioner-society are subjected to unemployment. It is further stated that the petitioner is similar to other societies like M/s. Hyderabad Boat Club, M/s. Nizam Club, M/s. Secunderabad Club etc., and several other clubs which are being allowed to have such similar activities. In the said circumstances, the Writ Petition was filed by the petitioner as against the respondents and directions had been obtained referred to supra.
5. The respondents filed a counter affidavit wherein it was stated that on 19-5-1997 at 22-30 hours, the respondents received reliable information that members of the petitioner-society were playing 52 cards by betting money (kothamukkala play) which is an offence under Sections 3 and 4 of the A.P. Gaming Act, 1974, Act 27 of 1974, hereinafter referred to as "Act" for the purpose of convenience, and the petitioner-society is not permitted to allow its members to play the said game. It is further averred in the counter affidavit that thereupon on obtaining permission from the 3rd respondent i.e., Assistant Commissioner of Police, Vijayawada, his predecessor Sub-Inspector of Police Sri D.N.V. Prasad along with his staff raided the petitioner's society on 19-5-1997 at 22-30 hours and arrested 46 persons while they were playing 52 cards by betting money which is prohibited under the Act and in the presence of mediators the S.I. of Police seized the 52 playing cards (Kothamukka) and an amount of Rs. 19,500/- from the 46 persons and arrested them on the spot and later they were released on bail. It is further stated that on 20-5-1997 at 1.30 hours, the S.I. of Police registered Cr. No. 245/97 under Sections 3 and 4 of the A.P. Gaming Act against all the 46 accused persons and the charge-sheet is yet to be filed.
6. The Act referred to supra is an Act to consolidate and amend the law relating to the punishment of gaming and the keeping of common gaming houses in the State of Andhra Pradesh. Section 2(1) of the Act defines "common gaming house" as hereunder;
'common gaming house', means-(i) in the case of gaming-
(a) on a horse-race except in the manner provided in clause (2); or
(b) on the market price of cotton, bullion or other commodity or on the digits of the number used for stating such price; or
(c) on the ground of variation in the market price of any commodity specified in item (b) or on the digits of the number used for stating the amount of such variation; or
(d) on the market price of stock or share or on the digits of the number used for stating such price; or
(e) on the number of registration or on the digits of the number of registration of any motor vehicle using a public place; or
(f) on any transaction or scheme of wagering or betting in which the receipt or distribution of winnings of Prizes, in money or otherwise, is made to depend on chance, any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which the gaming takes place or in which the houses or other instruments of gaming, are kept or used for such gaming;
(ii) in the case of any other form of gaming, any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which any 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, vehicle, vessel or place, whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel or place or instruments of gaming or otherwise howsoever;
Explanation: For the purposes of sub-clause (ii), any premises or place belonging to or occupied by a club, society, or other association of persons, whether incorporated or not, which is used or kept for purposes of gaming shall be deemed to be a common gaming house notwithstanding that there is no profit or gain for the club, society or other association of persons on account thereof."
The explanation clarifies that notwithstanding that there is no profit or gain for the club, society or other association of persons on account thereof for the purpose of sub-clause (ii) any premises or place belonging to or occupied by a club, society, or other association of persons, whether incorporated or not, which is used or kept for purposes of gaming shall be deemed to be a common gaming house. Section 2(2) of the Act defines 'gaming' as hereunder:
"gaming means playing a game for winnings or prizes in money or otherwise and includes playing a game of mutka or satta, and lucky board and wagering or betting, except where such wagering or betting takes place upon a horse-race-
(i) on the day on which the horse-race is to be run;
(ii) in an enclosure which the stewards controlling the horse-race or race meeting have, with the sanction of the Government set apart for the purpose; and
(iii) (a) with a licensed book maker; or
(b) by means of a totalisator;
but does not include a lottery;
Explanation: - For the purpose of this clause-
(i) wagering or betting shall be deemed to comprise the collecting or soliciting of bets, the receipt or distribution of winnings or prizes in money or otherwise in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution;
(ii) "totalisator" means a totalisator in an enclosure which the stewards controlling a horse-race or race meeting have set apart in accordance with sub-clause (ii) and includes any instrument, machine or contrivance known as the totalisator or any other instrument, machine or contrivance of a like nature or any scheme for enabling any number of persons to make bets with one another on the like principles;
(iii) 'race meeting' means a meeting held for the purpose of horse racing at a race course within the State of Andhra Pradesh and includes a meeting held at such race course for the purpose of betting on an horse race at any other race course outside the State."
Section 3 of the Act dealing with Penalty for opening etc., a common gaming house, reads:
(1) Any person who opens, keeps or uses or permits to be used any common gaming house or conducts or assists in conducting the business of any common gaming house or advances or furnishes money for gaming therein, shall be punishable
(i) for the first offence, with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees; but in the absence of special reasons to be recorded in writing, the punishment awarded under this clause shall be imprisonment for not less than one month and fine of not less than five hundred rupees;
(ii) for every subsequent offence, with imprisonment for a term which may extend to one year and with fine which may extend to two thousand rupees; but in the absence of special reasons to be recorded in writing the punishment awarded under this clause shall be-
(a) for a second offence, imprisonment for not less than three months and fine of not less than one thousand rupees;
(b) for a third or subsequent offence, imprisonment for not less than six months and fine of not less than one thousand rupees.
Explanation: For the purpose of this section, the expression "person" includes the owner, or as the case may be, the occupier of the place used as a common gaming house and where such place belongs to or is occupied by a club, society or other association of persons, the person having the care or management of such place.
(2) It shall not be necessary, in order to convict any person for opening, keeping or using or permitting the use of common gaming house or of being concerned with the care or management of a common gaming house, to prove that any person found therein as gaming for money, wager, bet or stake.
Section 4 of the Act dealing with Penalty for being found in a common gaming house reads as hereunder:
Whoever is found gaming or present for the purpose of gaming, in a common gaming house, shall, on conviction, be punishable with imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees, or with both.
Explanation:- For the purpose of this section, any person found in any common gaming house during gaming therein shall be presumed to have been present there for the purpose of gaming.
Likewise, Section 5 of the Act dealing with Power to grant warrant to enter a common gaming house, etc., reads:
(1) If any salaried Judicial or Executive Magistrate, or any police officer not below the rank of an Assistant Commissioner of Police within the areas under the jurisdiction of the Commissioner of Police, Hyderabad and a Deputy Superintendent of Police elsewhere, has reason to believe that any place is used as a common gaming house, he may by his warrant give authority to any police officer not below the rank of a Sub-Inspector,-
(i) to enter with such assistant as may be found necessary at any time and by force, if necessary any such place;
(ii) to arrest all persons found therein;
(iii) to search all such persons and all parts of such place; and
(iv) to seize-
(a) all moneys found with such persons;
(b) all instruments of gaming; and
(c) all moneys, all 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 in such place.
(2) Any police officer having the power to issue a warrant under subsection (1) may, instead of doing so, himself exercise all or any of the powers exercisable under such warrant.
Section 6 of the Act dealing with Instruments of gaming found in a place entered or searched under Section 5 to be evidence that the place is a common gaming house, reads:
"Where any instruments of gaming are found in any place entered or searched under the provisions of Section 5, on or about the person found therein, it shall be presumed that such place is used as a common gaming house and that the persons found therein were present there for the purpose of gaming although no gaming was actually seen by the police officer or any of his assistants."
Section 7 of the Act deals with Provisions of Sections 4, 5 and 6 not to apply in certain cases and the same reads as hereunder:-
"Nothing in the Explanation to Sec. 4, or in Clause (ii) of sub-section (1) of Section 5 or in Section 6 shall apply to persons found in a premises or place belonging to or occupied by a club, society or other association of persons whether incorporated or not, unless such persons are actually found gaming in such premises or place".
Section 11 of the Act dealing with Presumptive proof of gaming reads as hereunder:
"When any thing is seized under subsection (2) of Section 10 and if the Magistrate is satisfied that the police officer who seized it has reasonable grounds for suspecting that the thing so seized was an instrument of gaming, it shall be presumed that such thing was an instrument of gaming and that the person on or about whom the thing was found was present in the public street, thoroughfare or place for the purpose of gaming."
Section 15 of the Act is the most important provision and the said provision deals with Savings of games of skill and the same reads as hereunder:
"Nothing in this Act shall apply to games of skill only wherever played."
7. In Hari Singh v. Emperor 1907 (6) Crl.L.J. 421 (Calcutta D.B.) a Division Bench of Calcutta High Court while dealing with Section 10 of the Gaming Act (II.B.C. of 1867) and Ring game held:
"If a game is one of skill, it is not an offence under the Gaming Act; if it is a game of mere chance, it is; where the chief element of a game is one of skill, the game is not an offence, although there is an element of chance in it."
In Ram Newazlal v. Emperor AIR 1914 Cal. 532 (D.B.) a Division Bench of Calcutta High Court held that the games of skill spoken of in Section 10 of Gambling Act (2 B.C. of 1867) obviously refer to games where there are two parties pitting their skill against each other and therefore a ring game kept for the profit of a man who does not play himself and does not pit his skill at all against anybody cannot fall within the exception to Section 10 of the Act. In Emperor v. Kallappa Gurappa Kotagunshi AIR 1939 Bomb. 481 (D.B.) a Division Bench of Bombay High Court while dealing with Section 13 of Bombay Prevention of Gambling Act (4 of 1887) and 'pettin ata' held:
"The only point that was argued in the appeal before the Sessions Judge was whether this game 'pettin ata' is a gambling game or not. The game has been thus described by accused 2 who, as I say, was examined as a witness in the case, and who gave a demonstration of the game before the Magistrate and the Sessions Judge. The game is played by four or six persons, each player being dealt eight cards. After the cards are dealt the players make a call in turn contracting to make so many tricks. The maker of the highest call declares the trump suit. Each of the players contributes a certain stake, usually one anna, to the pool. If the player who makes the highest call makes the number of tricks he contracts to make, he takes the amount of the pool; but if he fails he has to contribute an equal amount to the pool. So that after the hand is played, if the highest bidder is unsuccessful, the pool is doubled. The game consists of three deals. If in the third hand the highest bidder is successful he takes the whole of the pool; if he fails the pool is divided equally among all the players including the unsuccessful final bidder.
The view taken by the learned Sessions Judge is that it cannot be regarded as a game of mere chance, and that there is an element of skill in it. That is perfectly true, but, unfortunately, it is not the point which arises on the construction of the Act. Section 13, which is the important Section, says that nothing in this Court shall be held to apply to any game of mere skill wherever played. "Mere skill' means pure skill, skill and nothing else. It is sufficiently obvious, we think, without reference to any authorities, that a game in which there is a substantial element of chance cannot be described as a game of mere skill or pure skill. The game, which has been described in this case, is similar to the well-known game of nap. It is a rather elaborate form of nap. Having some similarity, no doubt, to contract bridge. I should say myself that there is far more chance than skill in the game. But, in any case, it cannot possibly be denied that there is a very substantial element of chance in it. That being so, it is not a game of mere skill, and comes within the mischief of the Bombay Prevention of Gambling Act. The learned Sessions Judge appears to have relied on some observations of the learned Judicial Commissioner of Sind in AIR 1937 Sind 99 (Mahomed Hassan v. Emperor(1937) 24 AIR Sind 99). The Court was there dealing with a game called Corinthian bagatelle, not a card game, and the observation of the learned Judicial Commissioner, on which the Sessions Judge relied, was as follows (p.99):
".........no game can be a game of skill alone, that to any game in which even great skill is required, chance must play a certain part, and we think there is force in this argument. Even a skilled player in a game of mere skill may be lucky or unlucky, so that we think that even in a game of mere skill chance must play its part. But we do not think that it is necessary to decide in terms of mathematical precision the relative proportion of chance to skill when deciding whether a game is a game of mere skill within the provisions of Section 13. We are satisfied in this particular case that it cannot be said that the game before us is a game of mere skill, because it is quite clear to us that the elements of chance most strongly preponderate. We think therefore on the point that the game is a game of mere skill."
It is not very clear I think that the learned Judge meant to lay down the proposition that the question whether a game is a gambling game or not depends on whether chance or skill preponderate in it. But, if that is the meaning of the observations cited, we can only say respectfully, but emphatically, that we do not agree. It has been pointed out in 57 Cal 520 (Emperor v. Arjun Singh (1929) 16 AIR Cal 769) and 40 Mad 556 (Emperor v. Musa (1917) 4 AIR Mad 124) that, under the provisions of the gambling law as they formerly stood before amendment, the question whether skill or chance predominates in a game was of importance. As the Act now stands, and in particular in view of the provisions of Section 13 it is clear that if a game is played for stakes, it amounts to gaming and comes within the mischief of the Act, quite irrespective of the question whether chance or skill predominates, provided of course that it is not a game of mere skill, that it to say, a game in which there is no element of chance at all. Of course, if the element of chance in a game is so small as to be negligible, it may be reasonable to ignore it. But that is not the case with the game with which we are concerned here."
In Venkata Varaha v. State (D.B.) a Division Bench of this Court on 31-7-1967 while dealing with Sections 8, 9 and 11 of A.P. (Andhra Area) Gaming Act, 1930 at paras 7 to 15 held as hereunder:
"Apparently it was contended before Mohamed Mirza J. that notwithstanding the proved facts that the premises in question satisfied the definition of a "Common gaming house" within the meaning of Section 3 of the Act; that Chepuri Venkata Varaha Narasimhulu alias Babu Rao had kept the common gaming house for his profits within the meaning of Section 8 of the Act, and that the seven persons who were present there, were fond gaming in a common gaming house within the meaning of Section 9 of the Act, the accused were not liable to be punished under either of those sections because the card game of "rummy" which was being played, came within the exception envisaged by Section 11 of the Act. That section which has the marginal note "Saving of games of skill" reads thus:
"Nothing in Sections 5 to 10 of this Act shall be held to apply to games of mere skill wherever played.
A careful reading of the section will show that to claim the benefit of the exemption under that section, it must be shown that the game in question is a game of mere skill - the word "mere" in the context meaning "pure" or "unmixed". The pivotal word in the section is "mere". If this is borne in mind, it becomes plain that in order to attract the exception, the question whether a given, game that was being played in a common gaming house is a game of chance or a game of skill, or is a game in which chance or skill predominates, is rather academic, but the true test is whether the game is one of more skill, that is to say, a game of pure skill. If that be the correct criterion, by no stretch of imagination can the game of rummy be regarded as a game of mere skill. Obviously the attention of Mirza J. was not drawn to the precise language of Section 11; otherwise, the learned Judge would not have referred the question to the Bench in the way he did.
In an unreported judgment in Criminal Revision Case No. 71 of 1962 (Andh.Pra) to which Mirza J. has adverted, Sharfuddin Ahmed, J. too appears to have overlooked the key word "mere" in Section 14 of the Hyderabad Gambling Act (now called the Andhra Pradesh (Telangana Area) Gambling Act No. II of 1305 Fasli). The provisions of the two Acts are almost identical and Section 14 of the Hyderabad Act is in pan materia with Section 11 of the Act. Section 14 is in these terms:
"Nothing contained in this Act shall apply to any game of mere skill wherever played".
The facts of that case were similar to the facts in the instant case and the learned Judge framed the crucial point for determination as:
"Whether the card game known as rummy which the accused were found to be playing at the time of their arrest with heavy stakes was a game of skill or chance?"
Having posed the question in those terms, the learned Judge answered it thus:
"The next question for consideration is whether the game which was being played in the premises attracted the provisions of the Hyderabad Gambling Act (No. II of 1305 Fasli). It is beyond controversy that the card game which was being played when the raid was conducted is known as rummy and has been found to be a game of chance by the lower courts. Under Section 14 of the Hyderabad Gambling Act it is laid down that the Act shall not apply to any game of mere skill wherever played. So that, if rummy is a game of skill the provisions of the Gambling Act would not be applicable. The learned Counsel for the petitioners has urged that it is a game of skill and like any other fashionable card game, the playing of it even with stakes did not amount to gambling, but unfortunately the evidence on record is to the contrary ...............On a perusal of the testimony of these witnesses it appears to me that though some care has to be exercised in discarding the cards and avoiding losses, on the whole it is a game which depends on pure chance. As stated by the witnesses, even as the cards are dealt it is possible to make the rummy if the necessary sequences are available.
No doubt an element of chance is present in every game but the question whether it is a game of skill or chance will have to be determined with reference to the predominance of one over the other. There is no difficulty in cases where the element of skill predominates. It can be easily held to be a game of skill despite the element of chance, but in cases where both the elements co-exist the predominance of one over the other has to be carefully assessed in arriving at a conclusion whether it is a game of skill or chance. It may not be possible assess the relative strength of each element with mathematical precision and it is bound to be more or less a matter of speculation.
In the instant case, however, considering the fact that even at the commencement of the game, it might be possible to secure a win, the preponderance of chance is too obvious to bring it within the purview of a game of skill. Moreover, as mentioned above, the evidence on record is consistently to the effect that it is more a game of chance than of skill and on a relative assessment it can be safely concluded therefrom that it is 75 per cent a game of chance and 25 per cent of skill".
While the ultimate conclusion of Sharfuddin Ahmed, J. that "rummy" does not fall within the category of exempted games, is obviously right, we are of the opinion that the test adopted by the learned Judge is not the correct one. As we have indicated above, the truce test if whether the game in question is a game of mere skill, that is, pure skill, or to put it in a different form, whether the element of chance, if any, is so slight that the game can be said to be a game of pure skill. The point to note is that the test whether sill or chance is the dominant or governing factor, is not a valid test for claiming immunity under Section 11 of the Act.
"Rummy" is perhaps the most popular game to-day in this country. It is played in almost all clubs, usually for stakes, and is more popular than contract bridge or poker. It was given its name "rum" (queer) or "rummy" in England but attained its greatest popularity interest United States. "Rummy" has no official rules and has several variants but the basic idea of "rummy" is the formation of structures-matched sets or sequences.
It is true that the game of "rummy" as is played now, does involve a certain amount of skill. Winning at "rummy" is not all luck. A good player would make the best use of the hand dealt to him. He would closely watch and remember the cards discarded and the cards picked up by the other players, when calculating his own chances of drawing particular card. He should know when to get out and when to stay on. Otherwise he may pay a heavy penalty. But it is a far contrary from all this to saying that "rummy" is a game of pure skill in the sense that there is little or no element of chance. To start with, there is the luck of the deal. A player may be dealt a good hand or a bad hand. An experienced and clever player may make the best of the hand dealt to him, but even he cannot make bricks without straw. Indeed, it may sometimes happen that a player may be dealt a ready-made hand and make rummy straightaway. There is no element of skill there. Again there is the luck of the pick-a-card which a player needs for a set or sequence may be discarded by the player above him or he may draw it from the undealt cards forming a "stock" placed face down. This again is mere chance. Thus at every turn there is an element of chance. How, then, can it be maintained that "rummy" is a game of pure skill? It may not be a game of pure chance; it may be a game involving some amount of skill, but it is certainly not a game of pure skill. In other words, it is not a game of "mere skill" within the meaning of Section 11 of the Act. That being so, any one keeping a common gaming house where "rummy" is played and any one playing "rummy" for stakes in a common gaming house, would come within the purview of the penal provisions of the Act.
We will now refer to some of this illustrative cases cited at the Bar. In an early English case in Jenks v. Turpin (1884) 13 QBD 505 in considering the question whether the game of "baccarat" is a game within the category of games of mere skill, Hawkins J. observed as follows at page 524.
"The unlawful games, then, now are, ace of hearts, pharaoh, basset, bazard, passage, roulet, every game of dice except backgammon, and every game of cards which is not a game of mere skill, and, I incline to add, any other game of mere chance.
Does baccarat come within this category? The description of the game given by Mr. Russell satisfies me that it does. It is a game of cards. It is a game of chance; and though, as in most other things, experience and judgment may make one player or banker more successful than another, it would be a perversion of words to say it was in any sense a game of mere skill. It is therefore, in my opinion, an unlawful game within the meaning of the statute."
In Dalton v. Adelphi Club Ltd., (1938) All.E.R. 556 in repelling the contention that the game of "stud poker" is not a game of mere chance but is a game in which skill predominates and therefore it was not an unlawful game within the meaning of Section 4 of the Gaming Houses Act, 1854, Lord Hewart LCJ, delivering the judgment of the Court observed:
"Whatever the degree of skill an experienced player at stud poker may acquire, that game is described in the case must always remain a game of chance, and, in the language of Hawkins J., with regard to baccarat, it would be a perversion of words to say that it was in any sense a game of mere skill."
Likewise in the O.K. Social and Whist Club Ltd., (1929) 21 Cr.App. R. 119 the Court of Criminal Appeal held that there is a sufficient element of chance in the game popularly called a "whist drive" to make a club where it is played for money a common gaming-house.
In Charles Hendrick, (1921) 15 Cr. App. R. 149 it was pointed out by the Court of Criminal Appeal that in determining whether the game of "progressive whist is a game of mere skill, a finding by the jury that skill predominates would not of itself entitle the accused to an acquittal inasmuch as the only relevant question was whether the particular game was a game of mere skill."
The Division Bench decision of this Court was delivered on 31-7-1967 as referred to supra. However, the Apex Court in State of A.P. v. Satyanarayana after referring to In re Somasundaram Chettiar AIR 1948 Mad. 264 while dealing with Sections 3, 6 and 14 of the Hyderabad Gambling Act (2 of 1305 Fasli) on 22/23-11-1967 held at paras 9, 10 and 12 as hereunder:
"To begin with, there is nothing to show that a fee of 5 points per game as being charged. Only the Sub-Inspector (P.W.6) deposes to it but there is nothing to show that his source of information was. At the time the game was going on, he was present and when he arrived on the scene, the game had stopped. The account books of the club do not show any such levy from the persons and in the absence of any entry, we cannot hold this fact to be sufficiently proved. As regards the extra charge for playing cards we may say that clubs usually make an extra charge for anything they supply to their members because it is with the extra payments that the management of the club is carried on and other amenities are provided. It is commonly known that accounts have to be kept, stocks have to be purchased and maintained for the use of the members and service is given. Money is thus collected and there is expenditure for running of each section of the establishment. Just as some fee is charged for the games of billiards, pingpong, tennis etc., an extra charge for playing cards {unless it is extravagant) would not show that the club was making a profit or gain so as to render the club into a common gambling house. Similarly, a late fee is generally charged from members who use the club premises beyond the scheduled time. This is necessary, because the servants of the club who attend on the members have to be paid extra remuneration by way of overtime and expenditure on light and other amenities has to be incurred beyond the club hours. Such a charge is usual in most of the clubs and we can take judicial notice of the fact.
This leaves over for consideration only the sitting fee as it is called. In this connection, the account books of the club have been produced before us and they show that a fee of 50 paise is charged per person playing in the card room. This to our opinion is not such a heavy charge in a Members Club as to be described as an attempt to make a profit or gain for the club. Of course, if it had been proved that 5 points per game were charged, that might have been considered as an illegal charge sufficient to bring the club within the definition. As we have already pointed out, the levy of that charge has not been proved. The other charges which the club made dot not establish that this was a common gambling house within the definition.
......
We are also not satisfied that the protection of Section 14 is not available in this case. The game of Rummy is not a game entirely of chance like the 'three-card' game mentioned in the Madras case to which we were referred. 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 memorized and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of Rummy is a game of entire chance. 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 act 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 in it. 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. In this case, these elements are missing and therefore we think that the High Court was right in accepting the reference as it did."
In the light of the view expressed by the Apex Court in the decision referred (5) supra, which in fact is later in point of time, the decision of the Division Bench referred (2) (sic. (4)) supra may not hold the field. Apart from this aspect of the matter, in Twin Cities Cinema Cultural Centre v. Commissioner of Police 2002 (2) ALT (Crl.) 246 it was held that the contention of the Government Pleader that the game of Rummy is a game of chance when played with stake cannot be accepted. In Executive Club formed by Lalitha Real Estates (P) Limited v. State of A.P. 1998 (2) ALT (Crl.) 207 it was held at para 16 as hereunder:
"It is thus obvious that the game of Rummy is not a game of mere chance, but a game which is preponderantly a game of skill. It may include an element of chance and it would nevertheless be a game of 'mere skill" within the meaning of Section 15 of A.P. Gaming Act, 1974. Thus, the applicability of Sections 3 and 4 of A.P. Gaming Act, 1974, is excluded insofar as it relates to the game of Rummy. Once it has to be held that the provisions of the Act are not applicable, whatever may be the stakes involved in playing such game would not be of any consequence."
In Twin Cities Cinema Cultural Centre (Formerly Twin Cities Club) v. Commissioner of Police it was held as herender:
"The prayer in the Writ Petition is as follows:
".........to issue writ of mandamus or any other appropriate writ, order or direction and direct the respondents to forbear from interfering/obstructing the petitioner Cultural Centre from conducting the card room where the members and guests of the petitioner Cultural Centre are allowed to play the game of rummy with stakes/syndicate (13 card game)."
Therefore, the police authorities cannot obstruct the writ petitioner-Club from conducting card room where the members and guests of the writ petitioner's cultural center are allowed to play the game of rummy with stakes/ syndicate (thirteen card game). At the same time, we make it clear that the police is always at liberty to enter the premises and check as to whether the cultural center of the Club is conducting card room where the members and guests of petitioner's cultural centre are playing the game of rummy with stakes/ syndicate (thirteen card game) for the purpose of verification. If they receive any intimation, the police may enter the club and verify the same and proceed further if the members and guests of writ petitioner's cultural center play other than the game of rummy with stakes/syndicate (thirteen card game). The police authorities are also at liberty to proceed with the cases, which are already registered. The writ appeal is disposed of accordingly."
In K.R. Lakshmanan v. State of Tamil Nadu after referring to the decision of the Apex Court in State of Bombay v. R.M.D. Chambarbaugwala and also R.M.D. Chambarbaugwala v. Union of India , it was held at paras 17, 18 and 24 to 26 as hereunder:
"We may now take up the second question for consideration; Section 49 of the Police Act and Section 11 of the Gaming Act specifically provide that the penal provisions of the two Acts shall not apply to the games of "mere skill wherever played". The expression "game of mere skill" has been interpreted by this Court to mean "mainly and preponderantly a game of skill". In State of Andhra Pradesh v. K. Satyanarayana, , the question before this Court was whether the game of Rummy was a game of mere skill or a game of chance. The said question was to be answered on the interpretation of Section 14 of the Hyderabad Gambling Act (2 of 1305 F) which was pari materia to Section 49 of the Police Act and Section 11 of the Gaming Act. This Court referred to the proceedings before the Courts below in the following words (at p.827 of AIR):
"The learned Magistrate who tried the case was of the opinion that the offence was proved, because of the presumption since it was not successfully repelled on behalf of the present respondents. In the order making the reference the learned Sessions Judge made two points: He first referred to Section 14 of the Act which provides that nothing done under the Act shall apply to any game of mere skill wherever played and he was of opinion of the authority of two cases decided by the Madras High Court and one of the Andhra Pradesh High Court that the game of Rummy was a game of skill and therefore the Act did not apply to the case".
This Court held the game of Rummy to be a game of mere skill on the following reasoning (at p.828 of AIR):
"We are also not satisfied that the protection of Section 14 is not available in this case. The game of Rummy is not a game entirely of chance like the 'three-card' game mentioned in the Madras case to which we were referred. 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 memorized and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of Rummy is a game of entire chance. 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 in it.
The judgments of this Court in the two Chambarbaugwala cases and in the Satyanarayana case clearly lay-down that (i) the competitions where success depends on substantial degree of skill are not "gambling" and (ii) despite there being an element of chance if a game is preponderantly a game of skill it would nevertheless be a game of "mere skill". We, therefore, hold that the expression "mere skill" would mean substantial degree of preponderance of skill."
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The question before the Michigan Supreme Court in Edwarad J. Rohan et at. v. Detroit Racing Association et al., 166 ALR 1246 was whether Act No. 199 Pub. Acts 1933, authorizing pari-mutuel betting on horse races violated the Constitutional prohibition against lotteries. The Court answered the question in the negative on the following reasoning:
"In the case of Commonwealth v. Kentucky Jockey Club, 238 Ky. 739, 38 SW 2d 987, a statute permitting pari-mutuel betting on horse races witness held to be Constitutional and not in violation of a provision of the State Constitution prohibiting lotteries. See also, Utah State Fair Ass'n v. Green, (1926) 68 Utah 251, 249 p. 1016; Panas v. Texas Breeders and Racing Ass'n Inc. Tex Civ. App. 80 SW 2d. 1020; State v. Thompson, 160 MO 333, 60 SW 1077, 54 LRA 950, 83 Am St. Rep. 468; Engle v. State of Arizona (1939) 53 Ariz 458, 90 P2d 988; Stoddart v. Sagar (1895) 64 LJ (MC) 234, 3 QB 474; Caminda v. Hulton (1891) 60 LJ (MC) 116, 64 LT 572.
Under the above authorities it is clear that pari-mutuel betting on a horse race is not a lottery. In a lottery the winner is determined by lot or chance, and a participant has no opportunity to exercise his reason, judgment, sagacity or discretion. In a horse race the winner is not determined by chance alone as the condition, speed and endurance of the horse and the skill and management of the rider arbitrator efactors affecting the result of the race. The better has the opportunity to exercise his judgment and discretion in determining the horse on which to bet. The pari-mutuel method or system of betting on a horse race does not affect or determine the result of the race. The pari-mutuel machine is merely a convenient mechanical device for recording and tabulating information regarding the number and amount of bets (Utah State Fair Ass'n v. Green (supra)), and from this information the betting odds on the horses entered can be calculated and determined from time to time during the process of betting. The recording and tabulating of bets could be done manually by individuals, but the pari-mutuel machine is more convenient and faster method. The fact that a better cannot determine the exact amount he may win at the time he places his bet, because the odds may change during the course of betting on a race, does not make the betting a mere game of chance, since the better can exercise his reason, judgment, and discretion in selecting the horse he thinks will win. Horse racing, like foot racing, boat racing, foot ball and baseball, is a game of skill and judgment and not a game of chance. Utah State Fair Ass'n v. Green (supra).
Therefore, we conclude that Act No. 199, Pub. Acts 1933, authorizing pari-mutuel betting on horse races, does not violate the Constitutional prohibition against lotteries."
In Harless v. United States (1843) Morris (Iowa) 169, the Court while holding that the horse racing was not a game of chance observed as under:-
"The word game' does not embrace all uncertain events, nor does not expression 'games of chance' embrace ail games. As generally understood, games are of two kinds, games of chance and games of skill. Besides, there are trials of strength, trials of speed, and various other uncertainties which are perhaps no games at all, certainly they are not games of chance. Among this class may be ranked a horse race. It is as much a game for two persons to strive which can raise the heaviest weight, or live the longest under water, as it is to test the speed of two horses. It is said that a horse race is not only uncertain in its result, but is often dependent upon accident. So is almost every representation of human life, but this does not render them games of chance. There is a wide difference between chance and accident. The one is the intervention of some unlooked for circumstance to prevent an expected result, the other is uncalculated effect of mere luck. The shot discharged at random strikes its object by chance; that which is turned aside from its well-directed aim by some unforeseen circumstances misses its mark by accident. In the case, therefore, we reasonably feel disappointed, but not in the other, for blind uncertainly is the chief element of chance. In fact, pure chance consists in the entire absence of all the means of calculating results; accident in the unusual prevention of an effect naturally resulting from the means employed. That the fleetest horse sometimes stubles in the race course and leaves the victory to its more fortunate antagonist is the result of accident, but the gambler, whose success depends upon the turn of the cards or the throwing of the dice, trusts his fortune to chance. It is said that there are strictly few or no games of chance, but that sill enters as a very material element in most or all of them. this, however, does not prevent them from being games of chance within the meaning of the law. There are many games the result of which depends entirely upon skill. Chance is in nowise resorted to therein. Such games are not prohibited by the statute. But there arc other games (in) which, although they call for the exercise of much skill, there is an intermingling of chance. The result depends in a very considerable degree upon sheer hazard. These are the games against which the statute is directed, and horse racing is not included in that class."
In D. Krishna Kumar v. State of A.P. it was held that the game of rummy is mainly and preponderantly a game of skill and Sec. 15 of the Act would come into operation and so none of the Sections 2 to 14 of the Act apply to the game of rummy wherever played. In the decision referred (6) supra, no doubt the Madras High Court held that it does not follow that because a club also provides for games like tennis, it ceases to be a "common gaming house" if it otherwise satisfies the conditions found in Section 3 of the Madras Gaming Act. It is no doubt true that the Division Bench of this Court in the decision referred (9) supra had not referred to the prior precedents. But however, the view expressed by the Division Bench is in conformity with the ratio laid down by the Apex Court in the decisions referred (5) supra and (10) supra and in the light of these decisions it can be taken that the decision referred (4) supra had been impliedly overruled. Even otherwise, under Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all Courts within the territory of India.
8. In the light of the views expressed above and also in the light of the specific prayer made in the Writ Petition and also the averments made in the affidavit filed in support of the Writ Petition, there cannot be any doubt whatsoever that the interference so far as those activities specified by the petitioner cannot be definitely unlawful or unauthorized. However, the main grievance ventilated by the learned Government Pleader for Home is that under the guise of lawful activities, the clubs will be involving in several illegal and unlawful activities impermissible in law. Police are no doubt duty bound to enforce Law. At the same time they cannot exceed the permissible limits. Often than not police exercising powers exceeding the limits under the guise of enforcement of law are being complained of and even public law remedies are being invoked in this regard. It would be very difficult to lay down clear and specific guidelines, suffice to state that the Police Officers are expected to exercise their powers within the permissible sphere of law and not beyond thereto. This is the area where public law remedies would come into play. In the light of the apprehension expressed by the learned Government Pleader for Home, it is needless to say that Police are at liberty to visit, check and verify the petitioner-society for the purpose of satisfying themselves of the activities of petitioner-society. It is no doubt true that specific stand had been taken in the counter affidavit that at the time of raid, they found the playing of 52 cards Kothamukka and 46 persons were arrested and a crime also was registered. Though there is some factual controversy between the parties, the petitioner asserting that the petitioner is not permitting any other card game except rummy and on the contrary the respondents asserting otherwise, in the light of the relief prayed for in the Writ Petition, this question need not detain this Court any longer except making a clarification that liberty is given to the respondents to check and verify the activities of the petitioner society as and when they require to do so. Accordingly, the Writ Petition is hereby allowed. In the facts and circumstances of the case, this Court makes no order as to costs.