Punjab-Haryana High Court
Kanwardeep Singh vs Union Territory Chandigarh on 24 December, 2008
Author: Ajai Lamba
Bench: Ajai Lamba
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc.54959-M of 2006
DATE OF DECISION : DECEMBER 24 , 2008
KANWARDEEP SINGH ....... PETITIONER(S)
VERSUS
UNION TERRITORY CHANDIGARH .... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. RS Cheema, Sr. Advocate, with
Sarvshri Sanjeev Sharma and JS Mehndiratta, Advocates,
for the petitioner(s).
Mr. Preetpal Singh, Addl.PP, UT, Chandigarh.
AJAI LAMBA, J.
This petition under Section 482, Code of Criminal Procedure, seeks quashing of FIR No.355 dated 31.10.2005 under Sections 3 and 4 of the Public Gambling Act, 1867 (for short 'the Act') Police Station, Sector 34, Chandigarh, as also report dated 13.4.2006 filed under Section 173, Code of Criminal Procedure, and charge-sheet dated 8.7.2006. Criminal Misc.54959-M of 2006 2
Learned counsel for the petitioner has raised two arguments.
Firstly, it has been contended that issuance of the search warrant itself was illegal and the relevant requirements of Section 5 of the Act were not satisfied in so much as no reference has been made to any credible information; there was no material to indicate that the house that was sought to be searched was a common gaming house; there was no authorization to arrest any person and, in the absence of such delegation of power, all the persons were taken into custody.
On the second count, it has been argued that there is no material to indicate that the house from where the alleged recoveries have been effected, was a common gaming house, as defined under Section 1 of the Act. If that were so, no offence can be said to have been committed under Section 3 and 4 of the Act.
Learned counsel for the respondent-State has argued that it would be for the trial court to consider the issues raised on behalf of the petitioner. The provisions of Section 6 of the Act make it evident that a presumption has to be drawn when relevant material is recovered through search and seizure and, therefore, no case for quashing of the FIR and the final report under Section 173, Code of Criminal Procedure, is made out.
The facts, as brought out from the record, are as under:-
On 30.10.2005, two days before Diwali, upon information received from a secret informer that gambling is going on in House No.1333, Sector 33-C, Chandigarh, Inspector Hari Kumar of Operation Cell, Chandigarh, approached the Senior Superintendent of Police, Chandigarh. It seems that warrant of search (Annexure P-2) was issued.Criminal Misc.54959-M of 2006 3
The same reads as under:-
"Inspector Hari Kumar, Operations Cell, Chandigarh informed me that he has received a secret information that gambling is going on in House No.1333, Sector 33, Chandigarh. I have been lead to believe that House No.1333, Sector 33, Chandigarh is used as common gambling house. So I hereby authorize Inspector Hari Kumar, Operation Cell Chandigarh to search House No.1333, Sector 33, Chandigarh and to seize all instruments of gambling and all money and securities for money reasonably suspected to have been or intended to be used for the purpose of gambling.
Dated the 30th day of October, 2005 sd/-
Senior Superintendent of Police, U.T. Chandigarh."
Thereafter, FIR (Annexure P-1), as detailed above, was lodged.
The gist of the FIR discloses that it is addressed to the Station House Officer, Police Station, sector 34, Chandigarh, by Inspector Hari Kumar to the effect that he along with the police officials, under the supervision of Inspector Vijay Kumar, was present at Bus Stand, Sector 17, Chandigarh, in connection with patrolling duty and to prevent crime that an informer met the complainant (Inspector Hari Kumar) and gave the information that a person; namely, Ram Parshad, who is Caretaker of Kothi No.1333, Sector 33-C, Chandigarh, makes the people to gather in one room constructed on this two kanals plot and makes them to play gambling with play cards. In return thereof, he receives money as commission from the people who gamble and also provides eatables and Criminal Misc.54959-M of 2006 4 drinks. People play Teen Patti with play cards using plastic counters in place of cash. At that point in time also, some people are gambling with three cards flash game and by using counters in place of cash amount in the said premises under the supervision of Ram Parshad. If a raid is conducted immediately, then, the accused can be nabbed red handed. Upon finding the information to be given by a trustworthy informant, the circumstances were narrated to the Senior Superintendent of Police, Chandigarh, whereupon the Senior Superintendent of Police had issued the warrant of search (Annexure P-2) in respect of the house as per procedure and had authorized the complainant to conduct raid and search the place.
A raid and search were conducted at the given premises. A witness Jaskanwar Pal Singh, resident of House No.292, Sector 15-A, Chandigarh, was joined in the raiding party. After reaching the house in question and on seeing the police party, Ram Parshad, present in the courtyard, started raising noise that police had come. Before the gamblers could be alarmed, the accused were apprehended. The accused were found sitting on plastic chairs on all sides of a round table lying in the first room of the Kothi. Their names have been given out in the FIR, which includes the petitioner, who is resident of Sector 44, Chandigarh. Each of the accused; total 7 in number, were carrying three cards in their hands. The details of the cards held by each of the accused have been given. On the table, a diary with printed lines was found, wherein there was some writing and from the possession of Ram Parshad, one box of plastic counters was recovered. The remaining counters had already been Criminal Misc.54959-M of 2006 5 distributed to the accused. Upon asking, Ram Parshad and other accused could not produce any licence which would allow them to play cards at the raided premises . On search of the spot, currency notes from the accused were recovered. It is, then, alleged that accused Ram Parshad, while utilising the room in Kothi No.1333, Sector 33-C, Chandigarh, had provided facilities to gamble. The other accused; including the petitioner, were gambling in the above said room and, therefore, the accused had committed the offences under Sections 3 and 4 of the Act.
Before proceeding further, the following provisions of the Act, as applicable to Chandigarh, need to be noticed:-
"1. Interpretation-clause. - In this Act -
xx xx xx xx xx xx
xx xx xx xx xx xx
"Common gaming-house" means any house or room or tent or enclosure or vehicle or vessel or any place whatsoever in which instruments of gaming are kept or used for gaming purposes -
(a) with a view to the profit or gain of any person, owning, occupying or keeping such house, room, tent, enclosure, vehicle, vessel, place whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel, place or instrument or otherwise howsoever;
(b) with or without a view to such profit or gain if the gaming for the purpose of which such instruments are so kept or used in gaming on any figures or numbers or dates to be subsequently ascertained or disclosed, or on the occurrence or non-occurrence of any natural event."
"3. Penalty for owning or keeping, or having Criminal Misc.54959-M of 2006 6 charge of a gaming-house. - Whoever, being the owner or occupier, or having the use, of any house, room, tent, enclosure, space, vehicle, vessel or place situate within the limits to which this Act applies, opens, keeps or uses the same as a common gaming- house; and whoever, being the owner or occupier of any such house, room, tent, enclosure, space, vehicle, vessel or place as aforesaid, knowingly or willfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house; and whoever has the care or management of, or in any manner assists in conducting, the business of any house, room, tent, enclosure, space, vehicle, vessel or place as aforesaid, opened, occupied, used or kept for the purpose aforesaid; and whoever advances or furnishes money for the purpose of gaming with persons frequenting such house, room, tent, enclosure, space, vehicle, vessel or place;
xx xx xx xx xx
xx xx xx xx xx "
"4. Penalty for being found in gaming-house. - Whoever is found in any such house, room, tent, enclosure, space, vehicle, vessel or place, playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found there present for the purpose of gaming, whether playing for any money, wager, stake or otherwise, shall be liable to a fine not exceeding one hundred rupees, or to imprisonment of either description,' as defined in the Indian Penal Code (45 of 1860), for any term not exceeding one month;
and any person found in any common gaming-Criminal Misc.54959-M of 2006 7
house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming."
"5. Powers to enter and authorise police to enter and search. - If the Magistrate of a district or other officer invested with the full powers of a Magistrate, or the District Superintendent of Police, upon credible information, and after such enquiry as he may think necessary, has reason to believe that any house, room, tent, enclosure, space, vehicle, vessel or place, is used as a common gaming-house;
he may either himself enter, or by his warrant authorise any officer of police, not below such rank as the State Government shall appoint in this behalf to enter with such assistance as may be found necessary, by night or by day, and by force if necessary, any such house, room, tent, enclosure, space, vehicle, vessel or place;
and may either himself take into custody, or authorise such officer to take into custody, all persons- whom he or such officer finds therein, whether or not then actually gaming;
and may 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;
and may search or authorise such officer to search all parts of the house, room, tent, enclosure, space, vehicle, vessel or 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 persons of those whom he or such officer so takes into custody;Criminal Misc.54959-M of 2006 8
and may seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search."
" 6. Finding cards, etc., in suspected houses, to be evidence that such houses are common gaming houses. - When any cards, dice, gaming-tables, cloths, boards or other instruments of gaming are found in any house, room, tent, enclosure, space, vehicle, vessel or place entered or searched under the provisions of the last preceding section, or about the person of any of those who are found therein, it shall be evidence, until the contrary is made to appear, that such house, room, tent, enclosure, space, vehicle, vessel or place, is used as a common gaming-house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Magistrate or police-officer, or any of his assistants."
In view of the facts and circumstances of the case that have emerged from the record, it is not necessary to deal with the first issue raised on behalf of the petitioner to decide the matter at hand.
So far as the second contention raised on behalf of the petitioner is concerned, it is evident that the search warrant indicates that the house in question i.e. H.No.1333, sector 33-C, Chandigarh, was being used as a common gaming house and, therefore, the search warrant was issued. The FIR specifically alleges that a special informer gave the information that a person named Ram Parshad, who was Care Taker of Kothi No.1333, Sector 33-C, Chandigarh, invited people at one of the rooms of this house and made arrangements for gambling through cards and received money by way of commission and also supplied food and Criminal Misc.54959-M of 2006 9 drinks to the gamblers.
Common gaming house has been defined under Section 1 of the Act to mean any house in which instruments of gaming are kept or used for gaming purposes with a view to profit or gain of any person, owning, occupying or keeping such house, whether by way of charge for the use of such house or instrument or otherwise howsoever.
The petitioner is alleged to have committed offences under Sections 3 and 4 of the Act.
Section 3 of the Act inheres that whoever, being the owner or occupier, or having the use of any house, opens, keeps or uses the same as a "common gaming-house" or whoever, being the owner or occupier of any such house, knowingly or willfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house, shall be liable to be punished, as provided.
Likewise, Section 4 of the Act is also an offence in the context of a "common gaming house".
The controversy, thus, boils down to the limited fact whether H.No.1333, Sector 33-C, Chandigarh, on the date of search and seizure, was being used as a "common gaming house" or not.
To bring the offence within the four corners of Sections 3 and 4 of the Act, it is imperative for the prosecution to show that Ram Parshad, who allegedly is the occupier of the house, was allowing the house or a room in the house for being used as a common gaming house, with a view to profit or gain for himself, either by way of charge for the house or room or otherwise howsoever.
Criminal Misc.54959-M of 2006 10
In para-12 of the petition, the following has been specifically pleaded:-
"12. That pursuant to this challan, Petitioner has been illegally charge-sheeted. Even in the charge-sheet, the basic ingredients to make out a case for trial under the Gambling Act are completely missing. A copy of the charge-sheet dated 08.07.2006 is annexed as Annexure P6. There is not even a single word in the charge-sheet whereby it is stated that the occupier of the house was charging commission or making profit/gain in order to render the house to be a common gaming house. In absence of such a charge under section 3 of the Act Petitioner cannot be charged under section 4 for being present in the said house. Petitioner has already suffered for over a year and on the basis of this illegal charge-sheet he is likely to face harassment for years to come."
Reply has been filed on behalf of the respondent, however, there is no denial to the facts asserted in the para reproduced above.
Faced with this contention, a pointed query was addressed to the learned counsel for the respondent-State as to whether or not there is any material to indicate that Ram Parshad had allowed the use of the premises for his own profit or gain or charge. Learned counsel for the respondent-State, from the record, has not been able to draw the attention of the court towards any material which would indicate that Ram Parshad had been allowing use of the house with a view to profit or gain or by way of charge.
In the absence of such material, it becomes evident that there is no material available on the record to indicate that the room where search and seizure was conducted in H.No.1333, Sector 33-C, Criminal Misc.54959-M of 2006 11 Chandigarh, was being used as a common gaming house.
In counter to the argument, an attempt has been made by the learned counsel for the respondent-State by way of referring to the provisions of Section 6 of the Act, to contend that once the cards, counters, etc. have been recovered, it has to be presumed that it was a gaming house.
I have referred to the provisions of Section 6 of the Act, as have been reproduced hereinabove. The provisions of Section 6 of the Act make it evident that even this section refers to the "place entered or searched under the provisions of the last preceding section". Section 5 of the Act i.e. the last preceding section, makes it clear that the power to enter and authorising police to enter and search could be granted only in regard to credible information being received, after an inquiry is held that the information is credible and the authority has reason to believe that the house is used as a "common gaming house". Thus, it is clear that even the provisions of Section 6 of the act are to be read in the context of common gaming house, as defined under Section 1 of the Act.
Learned counsel for the petitioner has referred to the judgment in Lachhman and others v. Emperor, AIR 1930 Oudh 403. Exact reference is required to be made to the following portion:-
"The last words are important. The festival of Dewali is recognized by all Hindus as a time when gambling is not only permissible but praise worthy, and the law has never yet interfered with this practice as such. It is, however, true to say that the law will not countenance gambling even at Dewali if it is in contravention of the Gambling Act. If, therefore, this gambling took place in a public place, or if the Criminal Misc.54959-M of 2006 12 owner of the premises was making a profit out of the gamblers, the conviction might not be illegal although the raid and the prosecution would still in my opinion be deplorable. The only evidence in this case that anything was being done in contravention of the gambling Act is that the owner of the house had in front of him a small pot containing As. 15. There is no reason whatever for supposing that this represented his profits or that it was what is known as 'nal.' It may very well have been the small sum which he had won or which he proposed to stake. In my opinion this was an ordinary case of Dewali gambling in a private house. The sums staked were trifling and in my opinion no offence was committed under the Gambling Act. On previous occasions the Judicial Commissioners of Oudh have had occasion to point out that Dewali gambling was not to be considered an offence. I refer to Ram Shanker v. Emperor (1917) 20 O.C. 4 and Emperor v. Shankar Dayal, AIR 1922 Oudh 224. In his explanation the learned Magistrate has attempted to differentiate both cases but he has not succeeded. I regret to say that I have recently seen several cases in which warrants have been issued to the police in order that they may interfere with persons engaged in Dewali gambling. In my opinion to issue such warrants is highly undesirable as the police are merely encouraged to run in numbers of perfectly innocent persons in order to get a reward. ........"
Learned counsel for the respondent-State has relied on a judgment in Emperor v. Basant Rai and others, AIR 1933 Allahabad 574, to contend that wherever material is seized during search and seizure, a presumption has to be drawn.
I have referred to the judgment. I however find that in the cited case, there was evidence that Basant Rai took commission and had Criminal Misc.54959-M of 2006 13 received profits or gains in two ways. One was by taking two pice commission when any person won Re.1 and the other was by one pice being placed on the board and one being placed as a stake while play was being made. One box was found between the legs of Basant Rai, which contained Rupees 4-7-0 in change, and another small box or dibia also placed there containing Re. 1-1-0 in change. It was Basant Rai, who was charged for running a common gaming house under Section 3 of the Act. The case is, therefore, clearly distinguishable as there was evidence to indicate that the owner or occupier of the house had been allowing others to play in the premises for receiving profits or gains.
In view of the facts and circumstances of the case, I am of the considered opinion that the premises, which was subjected to search and seizure under Section 5 of the Act, could not be termed as a common gaming house and, therefore, continuance of proceedings, as against the petitioner, would be a clear abuse of the process of law and the abuse of process of court. There is no dispute to the fact that the incident is in immediate proximity in time to Diwali festival. Any and every case of playing cards, particularly during festive season, in private property not for the gain and profit of the occupier or owner of property cannot be termed as gambling in a common gaming house, under the Act, to constitute an offence. I am of the opinion, taking in view the facts and circumstances of the case, that it is a case of playing cards during Diwali festivities. The incident is neither in a public place nor in a common gaming house (as defined under the Act). The facts and circumstances do not spell out commission of any offence under the Act. Criminal Misc.54959-M of 2006 14
In view of the fact that there is no material of any nature to indicate that the house was a common gaming house, this petition is allowed. FIR No.355 dated 31.10.2005 under Sections 3 and 4 of the Act, Police Station, Sector 34, Chandigarh, as also report dated 13.4.2006 filed under Section 173, Code of Criminal Procedure, and charge-sheet dated 8.7.2006, are quashed.
December 24, 2008 ( AJAI LAMBA ) Kang JUDGE