IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Crl.MC.No. 3334 of 2009() -------------------------------------- (CRIME NO.277/09 OF NILESHWAR POLICE STATION, KASARAGOD) PETITIONER(S): ACCUSED 1 TO 9: --------------------------------------------------- 1. T.IBRAHIM, W/O. LATE MOIDEEN HAJI, NO.58/09, KADINHIMOOLA NILESHWAR VILLAGE. 2. P.GOPINATHAN, S/O. K.P.KELU NAIR, NO.60/09, PUTHUKAI, KANHANGAD. 3. A.KUNHIKRISHNN, S/O. LATE.K.RAMANACHARI, NO.59/09, KETTILAD, PALAKKAD. 4. T.NARAYANAN, S/O. KUNHIPOTHUVAL, NO.59/09 SUKRITHAM, PADINJATTAM CHIRAPPURAM, KOZHUVAL. 5. P.ABDULLA, S/O. LATE MUHAMMED.M., NO.61/09 THEKKEPPAD KOTTACHERY. 6. RAJAN M. S/O. LATE A.V.RAMAN, AVM (H) NO.49/09 NEAR CHC HOSPITAL, VATTAPOYIL, PEROL. 7. M.GOPALAN, S/O. LATE K. KANNAN, NO.73/09 USHAS,RAMARAM, NILESHWAR VILLAGE. 8. B.NARAYANAN, S/O. LATE K.KRISHNAN, NO.58/09, CHIRAKKARA PUTHUKKAI, KANHANGAD. 9. T.V.BHASKARAN, S/O. LATE KUNHIKANNAN, NO.72/09, RASHMI HOUSE, PEROL. BY ADVS. MR.M.RAMESH CHANDER, SMT.K.A.SANJEETHA, MR.ANEESH JOSEPH. RESPONDENT(S): STATE -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3334 of 2009 -------------------------- ORDER Petitioners are the accused in Crime No. 277/2009 of Nileshwar Police Station, registered for the offences under Sections 7 and 8 of Kerala Gaming Act, 1960. Prosecution case is that on getting information that in Nileshwar Club, for getting profit by betting, a game by name “pullimuri” is being conducted, a search was conducted in the Club at about 8.20 p.m. on 29.9.2009 and when the police party, headed by Sub Inspector of Police, Nileshwar Police Station, entered the Club, it was found that ten chairs were placed surrounding a round table and nine persons were sitting in the chairs and a plastic box was placed on the table and they were playing “pullimuri” using the tokens supplied by the Club and when they were questioned to find out whether there is any licence or permission, they replied in CRMC 3334/09 2 the negative. Finding that they committed the offences under Sections 7 and 8 of Kerala Gaming Act (hereinafter referred to as 'the Act'), after registering Annexure-A1 FIR, the case is being investigated against the petitioners. This petition is filed under Section 482 of Code of Criminal Procedure to quash the FIR contending that on identical facts, earlier, this Court had quashed the case registered as Crime No.228/2003 of Nileshwar Police Station in Crl.M.C.No.2746/2004 by Annexure-A2 order. Same view was taken by this Court while disposing Crl.M.C.No.2419/2003 on 27.5.2003. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners submitted that Crime No.228/2003 of Nileshwar Police Station was earlier registered for the very same offence on the allegation that members of the same Club were indulged in the game by name CRMC 3334/09 3 “pullimuri” and by Annexure-A2 order, this Court quashed that case relying on the decision in Crl.M.C.No.2419/2003 finding that the case do not constitute an offence either under Section 7 or Section 8 of the Act. Learned counsel, relying on the decision of the Apex Court in Pandurang v. State of Maharashtra (AIR 1987 SC 535), argued that the said decision was not brought to the notice of the learned single Judge while considering the case in Abraham v. State of Kerala (2000 (3) KLT 163) and the learned single Judge relied on the earlier decision of the Apex Court in Jagat Singh Kishor Singh Darbar v. The State of Gujarat (AIR 1979 SC 857) and hence, the decision in Abraham's case (supra) cannot be relied upon. Learned counsel argued that in order to draw the presumption under Section 6 of the Act, there should be a search as contemplated under Section 5 of the Act, which could only be in a common gaming house and unless there are materials to show that the Club, where CRMC 3334/09 4 the Sub Inspector conducted a search, was a common gaming house, based on the cards or tokens seized, presumption as provided under Section 6 of the Act, cannot be drawn and hence, the earlier decision in Annexure-A2 order is to be applied and the case is to be quashed. 4. Learned Public Prosecutor pointed out that though by Annexure-A2 order this Court had already quashed the case, the decision in Abraham's case (supra) was not brought to the notice of this Court at that time. This Court, in Abraham's case (supra) had elaborately considered the entire law applicable and found that at the stage of hearing a petition under Section 482 of Code of Criminal Procedure, presumption available under Section 6 of the Act, though it is a rebuttable position, is to be drawn and if that be so, the case cannot be quashed at this stage. 5. Section 6 of the Act reads: CRMC 3334/09 5 “Cards, dice, etc, found in search under section 5 to be evidence that the place is a common gaming house.- Any cards, dice, gaming tables, cloths, boards or other instruments of gaming found in any place entered or searched under section 5, or on any person found therein, shall be evidence, until the contrary is proved, that such 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 of Police Officer, or any of his assistants.” 6. Section 6 of the Act provides that in any place, when a search, as provided under Section 5, is conducted, any cards, dice, gaming table or other instruments of gaming found therein, shall be evidence, until the contrary is proved, that such place is used as a common gaming house. Though the argument of the learned counsel is that a search as contemplated under section 6 could only be in a common gaming house, I cannot agree with the submission that the presumption could apply only if there is evidence to prove that it is a common CRMC 3334/09 6 gaming house. If that argument is accepted, then, there is no necessity to provide in Section 6 that until the contrary is proved, ”that such place is used as a common gaming house”, apart from that the persons found therein were present there for the purpose of gaming, although no play was actually seen by the Magistrate or Police Officer, or any of his assistants. If the argument advanced by the learned counsel is to be accepted, that part of the Section, namely, “that such place is used as a common gaming house” would become redundant. Section 6 of the Act is provided to be applicable to a case where there is no direct evidence to prove that it is a common gaming house. By Section 6, it is provided that until the contrary is proved, there is a presumption that such place is used as a common gaming house and that the persons found therein were there for the purpose of gaming, although no play was actually seen by the Magistrate or the Police Officer or any of his CRMC 3334/09 7 assistants at the time of search. The question whether presumption could be rebutted or not is not to be decided at this stage in a petition under Section 482 of Code of Criminal Procedure and can only be decided at the time of trial. 7. Learned counsel argued that petitioners are members of the Club and there is no prohibition for paying cards inside the club room and therefore, seizure of playing cards is not sufficient to draw a presumption as provided under Section 6 of the Act. The question whether all the accused are members of the Club is a matter to be investigated by the police and we cannot draw a presumption that they are members of the Club, at the initial stage of investigation. 8. Though reliance was place on the decision in Pandurang's case (supra), that was a case where evidence was recorded and evidence proved that it was not a common gaming house. It is in such circumstances, the Honourable Supreme Court held CRMC 3334/09 8 that once evidence proved that it is not a common gaming house, presumption as provided under Section 6 of the Act cannot be drawn. That direction cannot be applied to a case where investigation is at the initial stage and there is no evidence to prove that it is not a common gaming house. I am in full agreement with the view taken by the learned single Judge in Abraham case (supra). The question whether presumption under Section 6 of the Act is rebutted by the petitioners and if so, whether it is a common gaming house and if so, whether an offence under Section 7 or Section 8 is attracted, are matters which could be decided only after filing the final report. Hence, with liberty to raise all the contentions at that stage, petition is dismissed. 23rd November, 2009 (M.Sasidharan Nambiar, Judge) tkv