1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 884 OF 2009 Sargam Krida Mandal .. Petitioner V/s The State of Maharashtra & Ors. .. Respondents Mr.U.R.Mankapure for the petitioner. Ms.P.H.Kantharia, APP for State. CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. DATE : 9TH JUNE, 2009. P.C.: . This petition is filed by Sargam Krida Mandal through its Secretary. The petitioner has prayed that the FIR bearing CR No.19/2009 registered with the Sangli City Police Station, Sangli be quashed. The said FIR is registered u/s.4 & 5 of the Bombay Prevention of Gambling Act, 1887 (for short the “Gambling Act”). Learned APP has told us that chargesheet is already filed. 2. We have heard Mr.Mankapure, learned counsel for the petitioner at some length. He submitted that the Sargam Krida Mandal is a society registered under the Societies Registration Act, 1860 and therefore it will not be covered by the definition of the 2 term “place of public amusement” as given u/s.2(9) of the Bombay Police Act, 1951. The petitioner society permits entry to only members. The members play cards. They do not gamble. Learned counsel submitted that the petitioner society and its directors and members could not have been charged u/s.4 & 5 of the Gambling Act. 3. Mr.Mankapure, further submitted that the police have not followed the procedure provided in Section 6 of the Gambling Act before raiding the petitioner’s premises. He submitted that necessary permission was not sought. No enquiry was conducted and the apprehension was not verified. Therefore the entire raid is vitiated. Learned Counsel submitted that the punter who was allegedly sent by the police in the petitioner’s premises is a member of the petitioner society. Similarly the panchas are also members of the petitioner society. No independent persons were asked to act as punter or panchas. Learned counsel submitted that therefore the entire investigation is suspect. Learned counsel drew our attention to the attendance chart to show that the persons who were asked to act as punter and panchas are the members of the petitioner society. He submitted that in the circumstances this is a fit case where the FIR should be quashed. 4. We also heard Ms.Kantharia, learned APP for the State. 3 She submitted that when the raid was conducted 39 persons were found present in the premises of the petitioner society. Out of them only 4 persons were members and the rest were non-members. She submitted that cash of Rs.74,477/- was found in the cash box. Learned APP submitted that the investigation reveals that gambling activities go on in the premises of the petitioner society. According to learned APP no case is made out for quashing FIR. 5. The petitioner is charged under sections 4 and 5 of the Gambling Act. Section 4 makes keeping common gaming house an offence. Section 5 makes gaming in common gaming house an offence. Section 5 interalia states that whoever is found in any common gaming house gaming or present for the purpose of gaming shall on conviction be punished with imprisonment which may extend to six months and may also be punished with fine. 6. It is the case of the petitioner that in its premises no gambling activities go on. According to the petitioner it admits only members in its premises and the members play indoor games like chess, carom etc. for entertainment. This is disputed by the prosecution. It is the case of the prosecution that a cash of Rs. 74,477/- was found in the cash box on the date of the raid. According to the prosecution, out of 39 members, who were found present, only 4 persons were members of the petitioner-society 4 and rest were non-members. In our prima facie opinion, these facts support the prosecution case. If as stated by the petitioner the members only play chess, carom etc., we fail to understand as to how a huge sum of Rs.74,477/- could be found in the cash box. Besides, out of the persons present in the premises at the time of raid, only 4 persons were the members of the petitioner-society. Therefore, prima facie the possibility of the members bringing in non-members for the purpose of gambling cannot be ruled out. The attendance chart which is shown to us indicates that non-members can be admitted as guests on payment of fees. Prima-facie it appears that the petitioner society’s premises are used as a gaming house. Learned counsel for the petitioner has disputed the statement made by learned APP that at the time of raid, only 4 members were found in the premises and that the rest were non- members. It is not possible for us at this stage to decide this question of fact. That can only be decided in the trial. We can only observe that prima facie the above facts bear out the prosecution case. 7. It is then contended by learned counsel for the petitioner that while conducting the raid, the police have not followed the procedure laid down in section 6 of the Gambling Act. It is pertinent to note that in the petition only a bald statement is made that the police have not followed the procedure prescribed under section 6. 5 The petitioner has not stated which procedure is not followed. It was however argued in the court by learned counsel for the petitioner that before conducting the raid, necessary permission was not sought, no enquiry was conducted and the apprehension was not verified. Ms. Kantharia, learned APP, has denied this contention. 8. Section 6 of the Gambling Act states interalia that in any area for which a Commissioner of Police has been appointed, a search of a house or a place can be conducted by a person not below the rank of a Sub-Inspector either empowered by general order in writing or authorized in each case by special warrant issued by the Commissioner of Police. Section 6(1)(ii) states that elsewhere search can be conducted by officer not below the rank of Sub-Inspector of Police authorized by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by Taluka Magistrate especially empowered by the State Government in this behalf or by a Superintendent of Police or by Assistant or Deputy Superintendent of Police specially empowered by the State Government in this behalf. In this case, the raid was conducted within the jurisdiction of Sangli City Police Station. Ms. Kantharia has told us that two Deputy Superintendents of Police were part of the raiding part. If that is so, prima facie we feel that objection raised by the petitioner cannot be sustained. We, 6 however, make it clear that on this aspect we are not expressing any final opinion. As to whether procedure was followed or not can be ascertained only after the evidence is led. Similarly whether panchas and punters were members of the petitioner-society or not and if they were members, what effect it would have on the entire investigation is a matter which can be better appreciated after the evidence is led. We are also not impressed by the submission advanced by learned counsel for the petitioner that the petitioner- society is registered under the Societies Registration Act, 1860; that it only admits members and that therefore the police cannot charge the petitioner with any offences under the Gambling Act. Merely because the petitioner is a registered society, it cannot be presumed that the gambling activities would never be indulged in by its members. If the material collected by the police prima facie indicates that the members of the petitioner-society alongwith others are indulging in gambling activities in the premises of the petitioner-society, the police cannot be prevented from taking action in accordance with law. 9. As we have already stated, charge sheet has been filed. All observations made by us in this order are prima facie observations. It will be open for the petitioner-society to raise all contentions which it has raised before us in the trial and if such contentions are raised, the trial court will deal with them in 7 accordance with law uninfluenced by any observations made by us in this order. At this stage we can only observe that this is not a case where FIR does not disclose any offence at all. The FIR, therefore, cannot be quashed. The petition is rejected. ( SMT.RANJANA DESAI, J.) (R.G.KETKAR, J.)