@JUDGMENTTAG-ORDER
P. Devadass, J.@mdashPetitioner/accused in S.T.C.No. 1060 of 2012 pending on the file of learned Judicial Magistrate No. I, Tiruppur, came
forward to this Court to quash the entire criminal proceedings in the said case so far as against him. On 05.08.2012, about 8.30 p.m., in Tiruppur
Club, Tiruppur Town, it is alleged that petitioner as President of the Club, permitted the gambling ""Vettattam"" and he also gambled. He is being
prosecuted for offences under Sections 8 and 9 of the Tamil Nadu Gaming Act, 1930.
2. Challenging the said prosecution, petitioner seeks quashment of the same as against him u/s 482 of Cr.P.C.
3. Mr. R. Gandhi, the learned Senior Counsel for the petitioner contended that on the relevant date, petitioner was not the President of the
Tiruppur Club as alleged. There are materials in support of it. In the Club, Chartered Accountants, Advocates, Industrialists and many prominent
persons are members. Petitioner is an Industrialist. Social Worker. Politician. Without any basis, he has been implicated in this case. The learned
Senior Counsel further contended that the allegations in the FIR as well as the imputations in the final report as the petitioner lacks basis. The
prosecution alleged as against him is inherently improbable. The club is situate in a main area in Tiruppur Town. It is quite strange that at the time of
occurrence, there was no independent person to witness the alleged seizure by the police. All the witnesses are police constables. Even taking the
allegations as such in the FIR as well as in the final report, they do not disclose the offences alleged as against him under Sections 8 and 9 of the
Tamil Nadu Gaming Act.
4. In support of his submissions, the learned Senior Counsel cited the decision in Peer Appa Vs. Inspector of Police, Tankasi, Tirunelveli District
(2006) 2 MLJ (Crl) 78.
5. The learned Senior Counsel further contended that in the facts and circumstances of this case, the continuance of this criminal proceedings as
against the petitioner will be a futile exercise as there is no possibility of conviction. In such circumstances, such a criminal proceedings is required
to be quashed. In support his submissions, the learned Senior Counsel cited the celebrated decision of the Hon''ble Apex Court in State of
Haryana and others Vs. Ch. Bhajan Lal and others, . Thus, this prosecution may not go.
6. The Inspector of Police, Tiruppur North Police Station, Tiruppur filed counter opposing petitioner''s plea.
7. Mr. C. Emalias, the learned Additional Public Prosecutor contended that there are prima facie materials to show that the petitioner has
committed offences under Sections 8 and 9 of the Tamil Nadu Gaming Act. Thus, this prosecution may go.
8. I have considered the rival submissions, perused the counter filed by the Inspector of Police, materials on record and the decisions cited at the
bar.
9. Admittedly, Tiruppur Club is situate in a vast area at No. 221, in Avinashi Road, in Tiruppur. It is a prominent Club in Tiruppur Town. Many
prominent persons, Chartered Accountants, Advocates, leading Industrialists are its members. It has many recreations such as billiards, tennis, etc.
10. On 05.08.2012, at about 8.30 p.m., it is alleged that petitioner, an Industrialist, as President of the said Club has permitted the club being used
as a common gaming house and he also gambled ''Vettattam'' and when a police party raided the club except him all were caught and cash was
also recovered and the petitioner had absconded and thus, the petitioner and 8 others were alleged to have committed offences under Sections 8
and 9 of the Tamil Nadu Gaming Act.
11. Totally 11 persons were cited as prosecution witnesses of them, 1 to 10 are Police Constables and the last one is the Inspector of Police, who
investigated this case and filed the final report.
12. Eight accused have admitted the offence and paid the fine amounts imposed on them. The remaining accused is the petitioner. He is contesting
the case. He seeks quashment of the criminal proceedings as against him raising various contentions. The fact that the co-accused have admitted
the offence do not be little his stand nor estop him from challenging the prosecution on the various grounds raised by him.
13. Section 3 of the Tamil Nadu Gaming Act, 1930 defines a common gaming-house as under:-
Common gaming-house means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other
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 instruments of gaming or of the house, room tent, enclosure, vehicle, vessel or
place or otherwise howsoever, and includes and house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be
opened kept or used for the purpose of gaming:
14. Section 8 of the said Act which seeks to punish opening etc., of a common gaming house runs under:-
Whoever 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 liable on conviction of fine not exceeding five hundred rupees, or to
imprisonment not exceeding three months, or to both.
15. Section 9 which prescribes penalty for being found gaming in a common gaming-house runs as under:-
Whoever is found gaming or present for the purpose of gaming in a common gaming-house shall, on conviction, be liable to fine not exceeding tow
hundred rupees or to imprisonment not exceeding one month; and any peon found in any common gaming-house during any gaming or playing
therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.
16. In this case, the FIR has been registered by the 11th witness, namely, Kumar, the then Inspector of Police, Tiruppur North Police Station,
Tiruppur in Crime No. 1901 of 2012. It is specifically alleged in the FIR that the petitioner as President of the Tiruppur Club permitted the other
accused to gamble. It has also been specifically stated in the FIR that at the time, when the club was raided, the co-accused have stated so to him.
This has been verbatim stated by the ten police constables in their statement recorded u/s 161 of Cr.P.C. Thus, the Investigating Officer, in his final
report stated that the petitioner, as President of the Tiruppur Club, permitted the other accused to gamble in the Club.
17. It has been contended by the learned Senior Counsel for the petitioner that the petitioner was not the President of the said Club and in support
of that some materials were also produced.
18. Kumar, the Secretary of the Tiruppur Club, in his certificate dated 10.06.2013 certified that the petitioner was enrolled as a member on
20.06.1985 with the membership No. R-27 and he had not taken any official post till date in the Club Managing Committee. In the invitation for a
State Level Sports event conducted by the said Club on 08.07.2012 presided over by a retired Inspector-General of Police, one K. Appusamy
has been shown as President of the Club. In the invitation for 2012 New Year Festival issued by the Club, the same Appusamy has been shown as
its President. In these documents, petitioner, has not been shown as President or even holder of a post in the Club Management Committee.
19. In his counter, the Inspector of Police, did not controvert the said aspect. Along with the police report, there is no material in support of the
allegation that on the date of occurrence, the petitioner held the post of President of the Tiruppur Club.
20. In the FIR, it is not stated that the petitioner also gambled. This allegation emerges only in the statement of the Police constables recorded u/s
161 of Cr.P.C.
21. As already stated, the Tiruppur Club is situate in a busy area in Tiruppur Town. Even as per the allegations in the FIR, the police had advance
secret information about gambling being going on in Tiruppur Club. In such circumstances, before raiding the Club, police could have obtained a
search warrant from the Magistrate. But, it was not done. Even in the counter, the Inspector of Police did not say that he had obtained a search
warrant. He also did not say specifically in the counter that the situation was such that Police could not get the search warrant.
22. A prominent club situate in a prominent area is to be raided. Many prominent persons belonging to different walks of life were stated to have
gambled. Except ten police constables as witnesses and mahazar witnesses, there is no independent witnesses for the raid, the search and the
seizure. Even as per the prosecution version police have advance information about the gambling. In such circumstances, obtaining a search
warrant from the Magistrate becomes necessary. Further why such basic requirement could not be complied with has not been adverted to by the
police in their counter.
23. In Peer Appa Vs. Inspector of Police, Tankasi, Tirunelveli District (2006 (2) MLJ (Crl) 78), police raided Peraringar Anna Manamahil
Mandram in Tenkasi where the accused were playing ''vettu cheetu'', Rs. 243 also has been recovered from the table and the accused were
prosecuted for offences under Sections 8 and 9 of the Tamil Nadu Gaming Act. The accused have challenged the prosecution in this Court and
sought for quashment of the same u/s 482 of Cr.P.C. The prosecution contended that there are prima facie materials to proceed as against them.
This Court quashed the criminal proceedings observing as under:-
5. .................Admittedly, the respondent police, on information received, has visited the club at 2.00 p.m. on 26.10.2005. It has been repeatedly
held by the Supreme Court and by this Court that when a Police Officer visits a club of similar nature, he must appreciate the information received
and must approach the nearest learned Magistrate to obtain a search warrant in this regard. In the instant case, though the respondent has visited
the club during day time and when there is every possibility of getting such warrant, it has not been obtained. Admittedly, the petitioner and others
are members of a club. In a case reported in Raman Nair and Others V. State 1990 (2) MWN (Cr) HC 195, it has been held as follows:
7. .....To decide a question whether a club, where gaming in cards is carried on, is a gaming house or not, the relevant consideration is not whether
any member of the club makes a profit but whether the club, as a person, occupying or using or keeping the house or room makes a profit. The
fact that the police recovered huge sum of money on the table on the date in question is not sufficient to throw any light as to the club or the
Secretary of the club deriving anything from out of the money available on the table at the relevant time. The fact that the members playing cards
make a profit is not at all a criterion to decide the question of the premises being used as a gaming house. The huge amount, available on the table
at the relevant time, may be going to the pockets of the members playing the game of cards. As already indicated, that is not sufficient to consider
the premises of the club a gaming house u/s 3 of the Act. Once the premises is not proved to be a gaming house, it goes without saying that the
petitioners cannot be stated to have committed the offences under Sections 8 and 9 of the Act."" It has been repeatedly held that running of a
common gaming house is a primordial requisite before a person could be convicted for offence under Sections 8 and 9 of the Act and gaming is
not an offence perse. Even assuming that the allegations put forth by the prosecution is true, it cannot constitute an offence as alleged. Even if the
prosecution is allowed to continue, in view of the facts and circumstance of the case, it would be a futile exercise and there is no scope for
conviction.
24. In State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Hon''ble Apex Court held that where the allegations made in the FIR or
the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case
against the accused and where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case against the accused, the criminal proceedings have to be quashed.
25. Considering the facts and circumstances of the case before us, as rightly submitted by the learned Senior Counsel for the petitioner, the
continuance of the prosecution as against the petitioner will be a futile exercise and it will be a waste of public time and energy.
26. In the facts and circumstances, the principles laid down in Bhajan Lal (supra) and in Peer Appa (supra) are squarely applicable to this case.
27. In view of the foregoings, the entire criminal proceedings in S.T.C. No. 1060 of 2012 on the file of the learned Judicial Magistrate No. I,
Tiruppur, so far as the petitioner is concerned is quashed. Accordingly, this Criminal Original Petition is disposed of. Consequently, connected
Miscellaneous Petition is closed.
