430n A INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CriminalMisc54959eM of2006 DATE OF DECISION DECEMBER14 2008 KANWARDEEP SINGH PETITIONER tr 0 C3 I VERSUS 0 I UNION TERRITORY CHANDIGARH RESPONDENT6SI Z CC I CORAM HONBLE MR JUSTICE AJAI LAMBA 08 ClO W0 Z PRESENT Mr RS Cheema Sr Advocate with 3m SarvshriSanjeevSharmaand JS Mehndiratta Advocates for the Mr PreetpalSinghAddllOP UT Chandigarh 1 d 5 AJAI LAMBA J IP This petitionunder Section 482 Code of Criminal Procedure 1 seeks of FIR N0355 dated31102005 under Sections3and 40f the Public GamblingAct 167 6forshort the Actl Police Station Sector 34 as also reportdated 13A2006 flled under Section 173 1 1 CodeofCriminal Procedure and chargeleet dated872006 . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 1 431n CriminalMisc54959M of2006 2 Learned counselfor thepetitioner has raised two arguments Firstlyit has been contended that issuance of the searchwarrant itselfwas illegaland the relevantrequirements ofSection 5 of the Act were not satislled in so much as no referencehas beenmadeto anycredible information therewas no materialto indicate that the house thatwas soughtto be searchedwas a common gaminghouse therewas no authorizationto arrest any person and in the absenceof such ofpowerall the personswere takeninto custody t On the second count it has been arguedthat there is no 0 0 materialto indicatethat the housefrom wheretheallegedrecoverieshave I C5 beeneffectectwas a common gaminghouse as defined under Section l of I the Act If lhat were so no offence can be said to have beencommitted Z underSection 3 and40fthe Act Learned counsel for the respondenttatehas arguedthat it would be for the trial court to consider the lSSues raised on behalf of the a5 Cll petitionerThe provisionsof Section 60f the Act make it evident that a C 7 has to be drawn when relevantmaterial is recoveredthrough Z Ll searchand seizureand therefore no case for quashing of the FIR and the final reportunder Section 173 Code ofCriminal Procedure is madeout The facts as brought out from therecord are as under On 3012005 two daysbefore Diwali upon information received from a secrel informer that gamblingis goingon in House No 333 Sector 33 ChandigarhInspectorHari Kumar of Operation Cell Chandigarhapproachedthe Senior of Police ChandigarhIt seems that warrant of search Annexure P was issued 1 . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 432n 1 CriminalMisc54954 of2006 3 The same readsas under Hari Kumar OperationsCell informedme that he has received a secret information that gamblingis going on in House Nol 333 Sector 33 I have beenlead to believe that House No333 Sector33 is used as common gamblinghouse So I hereby authorizeInspectorHari Kumar Operation Cell to searchHouse Nol333 Sector 33 and to seize all instrumenlsof gamblingand all money and W secuntles for money reasonably to have been or intendedto be used for the purposeofgambling 0 C3 I Dated the C5 sc I Senior ofPoiice U2T 11 Z Thereafter FIR Annexure P 1 as detailed above was lodged I 08 The gistofthe FIR disclosesthat it is addressedntothe Station 1 House Oftlcer Police Station sector 34 by InspectorHari 7 Z Kumar to the effect that he alongwith the policeofficials under the One of InspectorVijay Kumar was present at Bus Stand Sector 17 in connectlon with patrollingdutyand to preventcnme thatan informer met the Hari Kumar9and gavethe information that a person namelyRam Parshad who is Caretaker of Kothi N01333 Sector 33C Chandigarhmakesthe peopleto gatherlll one room constructed on this two kanals plotand makes them to play gamblingwith play cards In return thereo he receives money as commlssion from the peoplewho gamble and also provideseatablesand . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document ro 433n YV CriminalMisc549594 of2006 4 drinks PeopleplayTeen Patti with playcards usingplasticcounters in placeof cash At that pointin time also some peopleare with threecards flash game and byusingcounters 111placeof cash amount in the saidpremises under the of Ram Parshad If a raid is conducted then the accused can be nabbed red handed Uponfindingthe information to be givenby a trustworthy informant the Clrcumstances were narratedto the Senior of Police 1 whereuponthe Senior of Police had issued the warrant of search 64nnexureP in respectof the house as per 0 C and had authorizedthe to conduct raid and search I C5 theplace Z 4r A raid and search were conductedatthe givenpremisesA Z wltness JaskanwarPal Singhresident of House No292 Sector 15 1 Chandigarhwas joinedin theraidingparty Afterreachingthe housein I a5 and on seeingthe policeparty Ram Parshad presentin the courtyard startedraisingnoise thatpolicehad come Before thegamblers 7 Z could be alarmed the accused were The accused were 1 foundsittingon plasticchairs on all sides ofa round tablelyingin the rst room of the Kothi Their names have been givenout i n the FIR which includesthepetitionerwho is residentof Sector44 ChandigarhEach of the accusec total 7 lIl number were carryingthreecards in their hands The details of the cards held by eachof the accused have beengiven On the table a diarywith printedlines was found wherein there wassome writingand from the possessionof Ram Parshad one box of plastic counters was recovered The remainingcounters had alreadybeen . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 434 n t 1 CriminalMisc54959eM of2006 5 distributedto the accusedUponaskingRam Parshadand other accused could not any licence which would allow them to playcards at the raidedpremises On search of the spot currency notes from the accused were recoveredIt is then allegedthat accused Ram Parshad whileutilisingthe room in Kothi Nol333 Sector 33 had facilities to gambleThe otheraccused includingthepetitioner were in the above said room and therefore the accused had 1 committedthe offences under Sections3 and40fthe Act Before fiirther the followingprovisions of the 0 CaO Act as applicable to needto be noticed C5 1 In thisAct I Xx Xx XX XX Xx Xx Z Xx Xx Xx XX Xx XX Common meansany house or room or r tent or enclosureor vehicle or vessel or any placewhatsoever an lll of gaming are keptor used for gaming 08 purposes al with a view to the profltor gainof any person 7 Z owningoccupying or keepingsuch house room 27 tent enclosure vehicle vessel placewhetherby wayof chargefor the use of such house room tent enclosure vehicle vessel place or instrumentor otherwisehowsoever b9 with or without a view to such profltor gainif the gamingfor the purpose of which such instruments are so keptor used in gamingon any figures or numbersor dates to be subsequently ascertainedor disclosed or on the occurrence or nonoccurrence ofanynaturalevent 93 Penaltyfor owning or keeping or having . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 435n V CriminalMisc54959N1 of2006 6 0D chargeof a Whoever beingthe owner or occupier or havingthe use of any house room tent enclosure space vehicle vessel or place Sltuate within the limits to which this Act applies openskeepsor uses the same as a common gaminge houseand whoever beingthe owner or occupierof any such house room tent enclosure space vehicle vessel or placeas aforesaid knowingly or willfully permits the same to be openedoccupiedused or kept byany other personas a common and whoever has the care or managementof or ln 0 C anymanner assistsin conductingthe businessof any I house room tent enclosure space vehicle vessel or C5 place as aforesaid openedoccupiedused or keptfor the purposeaforesaid and Z whoeveradvances or furnishes money for the purposeof gamingwith persons such 1 house room tent enclosure space vehicle vessel or 921 place Xx Xx Xx Xx Xx r D Xx Xx Xx Xx Xx 1 4 Penaltyfor beingfound in Whoever is found in any such house room tent enclosure space vehicle vessel or placeplayingor 1 gamingwith cards dice counters money or other instrumentsof gamingorlS found there presentfor the purposeof gamingwhether playingfor any money wagerstake or otherwise shall be liable to a flne not exceedingone hundredrupees or to imprisonment of either as deflned in the Indian Penal Code 645of 18609for any term not exceedingom months and any person found in any common gaming . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 436n 1V 67 e5 CriminalMisc549594 of2006 7 house duringany gamingor playingtherein shall be until the contrarybe provedto have been 1 therefor the gaming 5 Powers to enter and authorise policeto enter and search If the Magistrate of a district or other officer investedwith the full powersofa Magistrateor the Dstnict Om A8s6w of Police uponcredible information and after such enquiryas he maythink necessary has reason to believe that any house room tent enclosure space vehicle vessel or r placeis used as a common gaminglouse 0 he may either himself enter or by his warrant 0 authoriseany ofScer of policenot below such rank as C5 the State Government shall appointin this behalf to X enter with such assistanceas may be found necessary Z bynightor byday and byforce if necessary any such house room tent enclosure space vehicle vessel or r place and may either himself take into custodyor a5 authorisesuch officer to take into custodyall persons whom he or such officer Onds therein whether or not 1 W2 1 then actuallygaming 1 6 and may seize or authorisesuch ofOcer to seize all instruments of gaming and all moneys and secuntles for money and articles of value to have been used or intendedto be used for the purpose ofgaming which are found therein and may search or authorise such ofOcer to search all partsof the house room tent enclosurc 1 spacevehicle vessel or placewhich he or such officer shall have so entered when he or such officer has reason to believe that any lnstruments of galningare concealedtherein and also the persons of thosewhom heor such officer so takesinto custody . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 437n CriminalMisc549594Vl of2006 8 and may seize or authorisesuch officer to seize and take of all instrumentsof gamingfound uponsuch search 29 6 Findingcards etce in houses to be evidence that such houses are common gaming houseSe When any cards dice cloths boardsor other instrumentsof gamingare found in any house room tent enclosure space vehicle vessel or placeentered or searchedunder the provisions of the last precedingsection or about the person of any of 1 thosewho are found therein it shall be evidence until 0 the contraryis madeto appear that such house room C tenl enclosure space vehicle vessel or placeis used I C5 as a common and that thepersonsfound I thereinwere therepresentfor the purpose of gaming no playwas actuallyseen bytheMagistrate or Z policeofSceror any ofhis assistants In view of the facts and circumstances of the case that have I 1 C45 emerged from the record it is not necessaryto deal with the Orst issue l Cil 1 raisedon behalfofthe petitioner to decide the matter at hand 1 7 r So far as the second contention raised on behalf of the 1 1 petitioner is concerned it is evident that the searchwarrant indicatesthat lhe housein question1ee FN01333 sector 33C was being used as a common gaminghouse and therefore the search warrant was issued The FIR speciftcallyallegesthat a specialinfonner gave the information that a person named Ram Parshad who was Care Taker of Kothi No333 Sector 33C Chandigarhinvited peopleat one of the rooms of this house and made arrangements for gamblingthroughcards and receivedmoney by way of commission and also suppliedfood and . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 438n CriminalMisc54959 of2006 9 drinksto thegamblers Commongaminghousehas been deflned under Section l of theAct to mean any house in which instrumentsof gamingare keptor used for gamingpurposeswith a view to prot or gainof any person ownlng occupylng or keeping such house whetherbyway of chargefor theuse ofsuch house or instrumentor otherwisehowsoever The petitioner is allegedto have committed offences under Sections3 and 40fthe Act 1 L Section30f the Act inheresthat whoever beingthe owner or 0 0 occupier or havingthe use ofanyhouse opens keepsor uses the same as r C5 a common gaminglouseor whoever beingthe owner or occupierof anysuch house knowinglyor willfullypermitsthe same to be opened Z occupiedused or keptby any other person as a common 1 1 shall be liable to be punishedas provided Likewise Section 4 of the Act is also an offence in the 1rn contextofa common gaminghouse The controversythus boils down to the limited fact whether l No1333 Sector 33C on the date of search and seizure wasbeingused as a common gaming house or not To bringthe offencewithin the four corners of Sections3 and 4 of the Acl it 1S for the prosecutionto show that Ram Parshad who allegedlyis the occupierof the house was allowingthe houseor a room in the housefor beingused as a common gaminghouse with a view to profitor gainfor himself either by way of chargefor the houseor room or otherwisehowsoever 1 . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 439n 1 CriminalMisc549594 of2006 10 16 In para12 ofthe petitionthefollowinghasbeen specifically pleaded 1 2 That pursuantto this challan Petitioner has been illegally Even in the the basic to make out a case for trial under the Gambling Act are completely missingA copy ofthe chargeleetdated 08072006 is annexedas Annexure P6 There is not even a singleword in the chargesheetwherebyit is statedthat lhe occupierof the house was charging commission or making 1 protlgain in order to render the house to be a common gaming house ln absenceof such a chargeunder section 30f 0 C theAct Petitioner cannot be charged under section4 for being I presentinthe said house Petitioner hasalreadysuffered for C9 over a yearand on the basis of this illegal he 1S I likelyto faceharassmentfor yearsto come 32 Z Replyhas been lled on behalf of the however C thereis no denial to the factsassertedin theparareproduced above a5 Faced with this contention a pointedquery was addressedto oo the learned counsel for the as to whether or not thereis 7 any material to indicate that Ram Parshad had allowed the use of the 1 premlses for his own profitor gainor chargeLearned counsel for the from the record has not been able to draw the attention of the court towardsany materialwhich would indicate that Ram Parshad hadbeenallowinguse ofthe housewith a V lew to profitor gainor byway ofcharge ln the absenceof such material it becomesevident that there lS no material available on the record to indicate that the room where search and seizure was conducted in No333 Sector 33 01 . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 440n CriminalMisc549594vl of2006 11 was beingused as a common gaminghouse In counter to theargumentan attempthas been madeby the learnedcounsel for the by way of referringto the provisions of Section 6 of the Ac4 to contend that once the cards countersetc have been recovered it has to be presumed that it was a gaming house 1 have referredto the provisionsof Section 60f the Act as 1 have been hereinabove The provisionsof Section 60f the Act make it evident that even this section refers to the placeenteredor 0 0 searchedunder theprovisionsof the last precedingsection Section 50f I C the Act ie the last precedingsection makes it clear that the power to I enter and policeto enter and searchcould be grantedonly in Z regard to credible information beingreceived after an inquiryis held that 1 1 the informationis credible and theauthorityhas reasonto believe that the 08 houseis usedas a common gaminghouse Thus it is clear thateven the flO provisionsofSection 60fthe act are to be read in the context of common 7 Z gaminghouse as defined under Sectionl ofthe Act L Learned counsel for the petitionerhas referred to the judgment in Lachhman and others v Emperor AIR 1930 Oudh 403 Exact referenceis requiredto be madeto thefollowingportion The last words are importantThe festival of Dewali lS recognized by all Hindus as a time when gamblinglS not only but praiseworthyand the law has never yet interfered with this practiceas such It is however true to say that the law will not countenance gamblingeven at Dewali if it is lIl contravention of the GamblingAct IoO therefore this gambling took placein a publicplaceor if the . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 441n 1 CriminalMisc54959 of2006 0 owner of the premiseswas makinga profitout of the gamblersthe COtlvlctlOIl mightnot be illegalalthough the raid and the prosecutionwould still in my opinionbe deplorableThe onlyevidencein this case that anything was beingdone in contraventionof the gambling Act is that the owner of the househad in front of him a smallpotcontaining As15 There is no reason whateverfor supposing that this his profitsor that it was what is known as nal It mayvery well havebeen the small sum which he had won or which he proposedto stake In my opinionthis was an ordinary case of Dewali gambling ln a privatehouse The 0 sums stakedwere triflingand in my opinionno offence was C committed under the GamblingAct On previousoccaSlons I Co the Judicial Commissioners of Oudh have had occasion to I pointout that Dewali gamblingwas not to be considered an Z offee I refer to Ram Shankerv Emperoro917920 0C 4 and Emperorv ShankarDayalAIR 1922 Oudh 224 Inhis explanationthe learned Magistratehas attemptedto differentiateboth cases but he has not succeeded l regretto 1 saythat I have recentlyseen several cases in which warrants 00 havebeen issued to thepolicein order thattheymay interfere 1 with personsengagedin Dewali gamblingIn my opinionto ln issue such warrants is highlyundesirable as the policeare merelyencouraged to run lll numbersof perfectlyinnocent personsin order to get a reward 39 Learned counsel for the has relied on a 04 judgmentin Emperorv Basant Rai and others AIR 1933 Allahabad 574 1 lo contend that wherever material is seized duringsearch and selzure a presumption has to be drawn I have referred to thejudgmentI however find that in the cited case there was evidence that Basant Rai took commission and had . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 442n CriminalMisc54959M of2006 receivedprofltsor gainS 111two ways One was by takingtwo pice commlsslon when any person won Rel and the other was by one pice being on the board and one beingplacedas a stakewhile playwas made One box was found between the legsof Basant Rai which Rupees42O in changeand another small box or dibia also therecontainingRe 1O in changeIt was Basant Rai who was charged for runninga common houseunder Section 30fthe Act Thecase is therefore clearly as there was evidence to indicate that theowner or occupierof the house had been allowingothers 0 C toplayin thepremisesfor receivingproOts or gains I ln view of the factsand circumstances of the case I am of the 0 I consideredopinionthat the premiseswhich was subjected to searchand Z seizure underSection 50f the Act could not be termed as a common house and therefore continuanceof as againstthe would be a clear abuseof the processof law and the abuse of 08 process of court There is no disputeto the fact that the incident is in 7 immediateproximityln time to Diwali festival Any and every case of Z tl playing cards particularly duringfestive season in privatepropertynot ot for thegainand profltof the occupieror owner of propertycan be termed bl as gambling in a common gaminghouse under the Act to constitutean offence I am of the opiniontakingin view the facts and circumstances of thecase that it is a case of playingcardsduringDiwali festivities The incident is neither in a publicplacenor in a common gaminghouse as definedunder the AcO The facts and circumstances do not spellout commissionofanyoffence underthe AcL . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document 443n 4 CriminalMisc5495Cvl of2006 14 C In view of the fact that there is no materialof any nature to indicate thatthe house was a common gaminghouse this petition 1S allowed FIR No355 dated3102005 under Sections 3 and 40f the Acl Police Station Sector 34 as also reportdatl 132006 filed under Section 173 Code of Criminal Procedure and chargeleet dated872006 are quashed 1 C4 December 2008 9 Kang RJDGE L 0 0 C5 I Z tr a5 7 Z 10 a r1 0 1 0 q . Rashmi 2012.07.09 15: 58 Scanned True Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:20 I attest to the accuracy and integrity of this document