Crl.M.C. No. 720 of 2021

Crl.M.C.No.720/2021 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944_ _CRL.MC NO. 720 OF 2021_ _CRIME NO.611/2018 OF North Parur Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT IN CC 619/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR_ ## _PETITIONERS/ACCUSED 3 TO 31:_ _1 AKBAR, AGED 72 YEARS, S/O.ABDULKUNJU, KIZHAKKEVEEDU, PULLAMKULAM ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT._ _2 MATHEW THACHIL, AGED 81 YEARS, S/O.KUNJUVAREETHU, KANJIRAKKATTU, NORTH PARAVUR, ERNAKULAM DISTRICT._ _3 N.RAMACHANDRAN, AGED 72 YEARS, S/O.NARAYANA PILLAI, KALATHIPARAMBIL, CHERIYAPALLAMTHURUTH, NORTH PARAVUR, ERNAKULAM DISTRICT._ _4 FAIZAL, AGED 54 YEARS, S/O.ABDULLA, CHERIYAPUNCHAYIL, MANJALI, NORTH PARAVUR, ERNAKULAM DISTRICT._ _5 TOBY MAMPILLY, AGED 46 YEARS, S/O.DEVASSY, MAPILLY, CONVENT ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT._ Crl.M.C.No.720/2021 2 - _6 VISWAMBHARAN,_ _AGED 70 YEARS,_ _S/O.KUNJAPPAN, KULAKOZHIPPADATH, PARAVOOTHARA, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _7 DAVID,_ _AGED 60 YEARS,_ _S/O.JOSEPH, THOTTAPPILLY, NEAR INFANT JESUS SCHOOL, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _8 SANTHOSH,_ _AGED 69 YEARS, S/O.KUNJANPILLAI, MOOLAKKAPARAMBIL, THURUTHIPPPURAM, MOOTHAKUNNAM, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _9 LALAN, AGED 64 YEARS, S/O.VASUDEVAN, KALATHIL HOUSE, PARAVOOTHARA, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _10 SUNNY, AGED 62 YEARS,_ _S/O.ITTIYACHAN, ERALIL, CONVENT ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _11 SUNNY.P.R., AGED 71 YEARS,_ _S/O.RAPHEL, PADAMADAN HOUSE, NEAR UNIVERSITY, THRISSUR._ - _12 ANTONY, AGED 70 YEARS,_ _S/O.JOSEPH, MALIAKKAL, ST.GERMAIN'S ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT._ _13 SAJITH, AGED 47 YEARS, S/O.SHAMSU, PUTHENVEETTIL, THOTTAKATTUKARA, ALUVA, ERNAKULAM._ Crl.M.C.No.720/2021 3 - _14 TOMY MANJOORAN, AGED 70 YEARS,_ _S/O.ITTIRA, MANJOORAN, MAROTTICHUVADU, EDAPPALLY, ERNAKULAM._ - _15 BINU IPE, AGED 57 YEARS,_ - _S/O.IPE MATHEW, KARIYATTI HOUSE, KOTTAPPURAM, ALANGAD, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _16 SANTHOSH,_ - _AGED 45 YEARS, S/O.SUGATHAN, NEDIYAPPILLY, MADAPLATHURUTH, MOOTHAKUNNAM, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _17 MUHAMMED SAGEER, AGED 61 YEARS,_ - _S/O.ABDUL SALAM, ANCHAMPARUTHY, CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _18 DEVASSY, AGED 80 YEARS_ - _S/O.RAPHEL, VALIYAMARATHINGAL, KOTTAPPURAM, KODUNGALLUR, THRISSUR DISTRICT._ ## _19 SALIMKUMAR,_ _AGED 56 YEARS,_ _S/O.KANNANKUTTY, THEKKINKATTIL, MAVINCHUVADU, MANJALI, NORTH PARAVUR, ERNAKULAM DISTRICT._ - _20 NAVAS,_ _AGED 48 YEARS,_ _S/O.ABDUL HAMEED, MAROTTIKKAL, MANJUMMEL, ELOOR, ERNAKULAM DISTRICT._ - _21 HARIPRASAD,_ - _AGED 60 YEARS,_ _S/O.RADHAKRISHNAN, KANJAMURI, MANKKAPADY, KARUMALLOOR, NORTH PARAVUR, ERNAKULAM DISTRICT._ Crl.M.C.No.720/2021 4 - _22 VARGHESE,_ _AGED 26 YEARS, S/O.THOMAS, THEKKAN, SOUTH ADUVASSERY, CHENGAMANAD, ERNAKULAM DISTRICT._ - _23 VINCENT, AGED 64 YEARS, S/O.VARGHESE, KIRIANTHAN, MANATTUPARAMBU, NAYARAMBALAM, ERNAKULAM DISTRICT._ - _24 JOS MANY, AGED 49 YEARS_ _S/O.MANY, EDASSERY, TEMPLE ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT._ ## _25 GAFOOR,_ _AGED 61 YEARS,_ _S/O.MUHAMMED BAVA, HANSA MANZIL, THOPPUMPADY, KOCHI, ERNAKULAM DISTRICT._ - _26 JOHNSON, AGED 50 YEARS,_ _S/O.VARGHESE, VAZHAPPILLY, MARKET ROAD, ALUVA, ERNAKULAM DISTRICT._ - _27 FIROS BAVA, AGED 45 YEARS,_ _S/O.BAVA, AMBALATH, CHULLICKAL, THOPPUMPADY, ERNAKULAM DISTRICT._ - _28 PRADEEPUKUMAR,_ _AGED 52 YEARS,_ _S/O.VASUDEVAN NAIR, VADAKKEVEEDU, UC COLLEGE, ALUVA, ERNKAULAM DISTRICT._ - _29 M.J.PAUL,_ _AGED 63 YEARS,_ _S/O.JOSEPH, MALIAKKAL, ST.GERMAIN'S ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT._ _BY ADVS._ _K.P.SATHEESAN (SR.)_ Crl.M.C.No.720/2021 5 _SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D. SUDHAKARAN_ ## _RESPONDENTS/STATE & COMPLAINANT:_ - _1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031._ - _2 THE INSPECTOR OF POLICE, NORTH PARAVUR POLICE STATION, ERNAKULAM RURAL, ERNAKULAM DISTRICT, PIN-683 513._ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.720/2021 6 ## **O R D E R** The petitioners are the accused Nos.3 to 31 in C.C.No.619 of 2019 on the file of the Judicial First Class Magistrate Court-I, North Paravur. Aforesaid Calendar Case arises from Crime No.611 of 2018 of North Paravur Police Station, which is registered for the offences punishable under Sections 7 and 8 of the Kerala Gaming Act, 1960. The prosecution case is that, on 24.02.2018 at about 7.30 pm, the 2[nd] respondent received an information that certain people are carrying out certain activities in Sree Moolam Jubilee Club at North Paravur, in violation of the provisions of the Kerala Gaming Act, 1960 and he conducted an inspection. During the course of inspection, the petitioners and some other persons were found to be playing cards. The crime was registered in such circumstances and after completing the investigation, Annexure-II final report was submitted by the police. This Crl.M.C. is filed for quashing all further proceedings pursuant thereto. 2. Heard Sri.K.P.Satheesan, learned Senior Counsel appearing for the petitioners and Sri.Sudheer Gopalakrishnan, Crl.M.C.No.720/2021 7 learned Public Prosecutor for the State. 3. The learned counsel for the petitioners contends that, the FIR registered in this case was without complying statutory stipulation contained under Section 5 of the Kerala Gaming Act, 1960. The aforesaid provisions mandates that, before conducting the search in any premises, the detecting officer has to record the reasons for his belief that the place where the search is proposed, is being used as a common gaming house. The learned counsel for the petitioner placed reliance on the observations made by this Court in **Sugathan v. State of Kerala & Another [2018(4) KHC 45],** wherein, compliance of Section 5 was insisted upon. 4. It is also pointed out that, as per Annexure-III judgment passed in Crl.M.C.No.2404 of 2018, this Court has already quashed the FIR and further proceedings in this case as against the accused Nos.1 and 2. In such circumstances, the learned counsel seeks for quashing all further proceedings against the petitioners as well. 5. On the other hand, the learned Public Prosecutor would oppose the same. The specific contention of the petitioner is non-compliance of Section 5 of Kerala Gaming Act, 1960. The Crl.M.C.No.720/2021 8 scope of the said provision was considered by this Court in **Sugathan’s case** (supra), and it was observed as follows: 18. Purpose of S.5 of the Act is to ensure that before a Police Officer or a Magistrate proceeds to enter into a premises for the purpose of conducting a search, the concerned Magistrate or the Police Officer should have reason to believe that any place is used as a 'common gaming house' and further, he has to record his reasons for such belief before making an entry into such place. Therefore in order to conduct a proper search within the meaning of S.5 of the Act, two preconditions are to be satisfied. 1. His reason to believe that said place is used as a 'common gaming house' and; 2. He has to record his reasons to entertain such a belief. 19. As rightly pointed out in Kunhikannan (supra), this provision has been incorporated to ensure that their actions should be based on credible information and they should make sufficient enquiry as necessary, in order to satisfy themselves regarding the correctness of their belief in order to conduct such search and it is to be recorded. If there is no material to indicate that S.5 of the Act has not been complied with and the seizure report does not contain any material to Crl.M.C.No.720/2021 9 indicate that the requirement of S.5 of the Act has been complied with, the exercise of power under S.5 of the Act would become invalid.” 6. In Annexure-III judgment, by placing reliance upon the observations made by this Court in **Sugathan’s case** (supra), the proceedings against the accused Nos.1 and 2 has been quashed. Therefore, further prosecution against the petitioners also has to be quashed, as this Court has already found that the FIR registered in this crime is not in tune with the statutory stipulations contained in Section 5 of the Gaming Act. In the result, this Crl.M.C. is allowed and all further proceedings in Annexure-II final report in Crime No.611 of 2018 of North Paravur Police Station and all further proceedings in C.C.No.619 of 2019, pending before the Judicial First Class Magistrate Court-I, North Paravur as against the petitioners are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/17.6.22 Crl.M.C.No.720/2021 10 ## _APPENDIX OF CRL.MC 720/2021_ _PETITIONER ANNEXURES_ _ANNEXURE I_ _TRUE COPY OF THE ORDER DATED 09.04.2018 IN CRL.MA NO.3589/2018 IN CRL.MC NO.2404/2018._ _ANNEXURE II_ _CERTIFIED COPY OF THE FINAL REPORT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, NORTH PARAVUR IN CC NO.619/2019 DATED 26.02.2018._ _ANNEXURE III_ _TRUE COPY OF THE JUDGMENT DATED 15.01.2021 IN CRL.MC NO.2404/2018._