CRL.MC No. 7311 of 2015, State of Kerala v. Petitioners (Accused Nos. 1-12 & 14-21)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE1[ST]DAYOFAUGUST2023/10THSRAVANA,1945 CRL.MCNO.7311OF2015 ``` ``` INCC2484/2015OFJUDICIALMAGISTRATEOFFIRSTCLASS-III,THRISSUR PETITIONERS/ACCUSEDNOS.1TO12&14TO21: ``` ``` 1MATHEW AGED81YEARS S/O.VARGHESE,CHETTUPUZHAKARANHOUSE,ANCHERYNEHRUNAGAR. 2PREMNAZEER AGED65YEARS S/O.MUHAMMED,VIPPINKATTILHOUSE,MANATHALA,CHAVAKKAD. 3BINU AGED48YEARS S/O.JOSEPH,PADINJAREKKARAHOUSE,ARAJUTTY,KOTTAYAM. 4RAJESH AGED43YEARS S/O.APPU,MUZHUVANPILLYHOUSE,ANCHERY,OLLURVILLAGE. 5SAKKIRIYA AGED64YEARS S/O.KOCHUNNY,MUDUMPALHOUSE,NADATHARADESOM. 6LALSAN AGED69YEARS S/O.KESAVAN,THOTTATHILHOUSE,UNIVERSITYNAGAR,MANNUTHY. 7HABEM AGED44YEARS S/O.ABOOBACKER,REYAMARAKKARAHOUSE,KANDANASSERRY, ARYANNURVILLAGE. 8ALI AGED36YEARS SO.ABDUKADAR,KARUPPAMVEETTILHOUSE,PAVARTY, VENGIDANGUVILLAGE. 9BABU AGED45YEARS S/O.GEORGE,CHUNGATHHOUSE,PULLAZHIDESOMVILLAGE. 10JOHNSON AGED49YEARS S/O.PORINCHU,PUDUKADANHOUSE,OLLLURDESOMVILLAGE. 11YOUSUF AGED59YEARS S/O.BEERAN,EDAKATTILHOUSE,KOTTURDESOM,PONJAM. ``` ``` CRL.MCNO.7311OF2015 ``` ``` 2 ``` ``` 12KABIES AGED54YEARS S/O.MERAKANNAN,KOLLANPARAMBILHOUSE,ERATTUPETTA, KOTTAYAM. 13SEBASTIAN AGED46YEARS S/O.KURIYAPPEN,KANDUKULANGARAHOUSE,KALATHODE, OLLUKKARAVILLAGE. 14NAZAR AGED51YEARS S/O.MUHAMMED,KALATHILHOUSE,KARUVAPEDANNA, VELLANGALLURVILLAGE. 15SHAJI AGED46YEARS S/O.SHEKARAN,MARAKATHHOUSE,THURTHIKKAD,PORKULAM, KUNNAMKULAM. 16SIROJAN AGED45YEARS S/O.ANTHONY,PEDIKATHHOUSE,NEMANIKKARADESOMVILLAGE. 17MUHAMMEDAKBAR AGED45YEARS S/O.KUNJU,RAYMARAKKARHOUSE,THAIKKADDESOM,GURUVAYOOR VILLAGE. 18SABU AGED46YEARS S/O.GEORGE,BRAMAKULAMHOUSE,NEARKARTHIYANITEMPLE, AYYANTHOLEVILLAGE. 19JAYAKUMAR AGED45YEARS S/O.RAMAKRISHNAN,KURULIHOUSE,NEDUPUZHA, KANIMANGALAMVILLAGE. 20KANAKARAJ AGED46YEARS S/O.RAMAN,KUNNATHULLYHOUSE,MANALURDESOM,VILLAGE. BYADVS. SRI.P.VIJAYABHANU(SR.) NIKITAJ.MENDEZ SRI.M.REVIKRISHNAN SRUTHYN.BHAT(K/000579/2017) ``` ``` CRL.MCNO.7311OF2015 ``` ``` 3 ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATEOFKERALA ``` ``` REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM. ``` ``` SRI.VIPINNARAYAN,SR.PP THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 01.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.7311OF2015 ``` ``` 4 ``` ## **ORDER** The petitioners herein are accused Nos.1 to 12 and 14 to 21 in C.C No.2484 – of 2015 on the file of the Judicial Magistrate of First Class III, Thrissur. In the aforesaid case, they are accused of having committed the offences punishable under Sections 7 and 8 of the Kerala Gaming Act 1960. 2. The prosecution allegation is that on 15.8.2015, with the knowledge of the 1st accused, who is the President of Regency Club situated at Ollur village, accused Nos.2 to 11 were found indulging in a game of cards around a table in a room classified as one for ‘members only’ in the club. Accused Nos.12 to 21 were also found indulging in a game of cards on another table in the same room. 3. Miss. Sruthy N. Bhat, the learned counsel appearing for the petitioners, submitted that the registration of the crime against the petitioners cannot be sustained under law in view of the law laid down by this Court in **Kunhikannan and Ors. v. Asst. Sub Inspector of Police**[1] , **Danykutty v. State of Kerala[2]** , **Sunil and Ors. v. State of Kerala**[3] and that of a Division Bench of this Court in **Sugathan v. State of Kerala and others** [2018 (4) KHC 45]. 4. I have heard the learned Public Prosecutor. 5. Section 5 of the Kerala Gaming Act, 1960, confers power to enter and search. The said provision reads thus: > 1 [1985 KLT 484] > 2 [1999 (3) KLT 930] > 3 [2014 (1) KHC 469] ``` CRL.MCNO.7311OF2015 ``` ``` 5 ``` If a Magistrate or any Police Officer not below the rank of a Sub Inspector of Police upon credible information and after such inquiry as he may think necessary, has reason to believe that any place is used as a common gaming house, he may- (a) after recording his reasons for such belief, either himself enter or by his warrant authorise any officer of police not below the rank of a Head Constable to enter, with such assistance as may be found necessary, by night or by day, and by force, if necessary, any such place; (b) either himself take into custody or authorise such officer to take into custody all persons whom he or such officer finds therein whether then actually gaming or reasonably suspected to have been present for purposes of gaming; (c) seize or authorise such officer to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming, which are found therein; (d) search or authorise such officer to search all parts of such place, which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gaming are concealed therein and also the person of those whom he or such officer so takes into custody; and (e) seize or authorise such officer to seize and take possession of all instruments of gaming found upon such search. 6. In **Sugathan** (supra), this Court has held that the purpose of Section 5 of the Act is to ensure that before a Police Officer or a Magistrate proceeds to enter into 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 ``` CRL.MCNO.7311OF2015 ``` ``` 6 ``` a proper search within the meaning of Section 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. 7. This Court had held that the legislature has enacted the provision to ensure that the action of the officer by whom the search is conducted is based on credible information and that sufficient inquiry as is necessary was made with a view to satisfying themselves regarding the correctness of their beliefs. The same should also be recorded. If there is no material to indicate that Section 5 of the Act has not been complied with and the seizure report does not contain any material to indicate that the requirement of Section 5 of the Act has been complied with, the exercise of power under Section 5 of the Act will become invalid. It was further held that the presumption under Section 6 of the Act could arise only if Section 5 of the Act has been complied with in its letter and spirit. If there is no material to show that the provisions have been complied with in its letter and spirit, the search and seizure will become illegal. 8. In the case on hand, there is no material to substantiate that the place of occurrence is a common gaming house. Furthermore, the officer who conducted the search and seizure has not complied with Section 5 of the Act in its letter and spirit as outlined by this Court in the decisions above. 9. In that view of the matter, the petitioners are entitled to succeed. This petition will stand allowed. Annexure-B final report in Crime No.1484 of 2015 of ``` CRL.MCNO.7311OF2015 ``` ``` 7 ``` the Ollur Police Station and all further proceedings pursuant thereto against the petitioners now pending as C.C No.2484 of 2015 on the file of the Judicial – Magistrate of First Class III, Thrissur, are quashed. ``` Sd/- ``` **RAJA VIJAYARAGHAVAN V JUDGE** Sru ``` CRL.MCNO.7311OF20158 ``` ## **`APPENDIX OF CRL.MC 7311/2015`** ``` PETITIONERSANNEXURES ``` ``` ANNEXURE-ATRUECOPYOFTHEF.I.RINCRIMENO.1484/2015OF OLLURPOLICESTATIONTHRISSURCITYREGISTERED INTHECASE. ``` ``` ANNEXURE-BTRUECOPYOFTHEFINALREPORTLAIDINTHECASE AFTERINVESTIGATIONBYTHEPOLICENOWPENDING ASC.C.NO.2484OF2015ONTHEFILESOFTHE COURTOFTHEJUDICIALMAGISTRATEOFTHEFIRST - CLASSIII,THRISSUR. ```