Jayaram and Others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 CRL.MC NO. 3572 OF 2023`** ``` AGAINSTTHESTNO.589/2023OFJUDICIALMAGISTRATEOFFIRST CLASS-IMUVATUPUZHA ``` ## **`PETITIONERS/ACCUSED NOS.1-12 :`** ``` 1JAYARAM AGED52YEARS S/O.AYYAPPAN,VRINDHAVAN, - VENGALLOOR,THODUPUZHA,IDUKKI,PIN685608 2JAMES AGED55YEARS S/O.PAILY,METHIPPARAYILHOUSE,ADOOPARAMBU, - MUVATTUPUZHA,ERNAKULAM,PIN686673 3ABY AGED54YEARS S/O.JOHN,THENASSERILHOUSE,CHEKEPEEDIKABHAGAM, - MANNATHOOR,MARADY,ERNAKULAM,PIN686667 4PAULOSE AGED63YEARS S/O.VARKEY,PALAKKUNNUHOUSE,KOLANCHERY, - ERNAKULAM,PIN682311 5ROY AGED68YEARS S/O.KURIAKOSE,PEECHAKKARAHOUSE,THANKALAM, - KOTHAMANGALAM,ERNAKULAM,PIN686691 6PETERKMATHEW AGED65YEARS S/O.MATHEW,KANDIRIKKALHOUSE,MATHIRIPPILLY, - KOTHAMANGALAM,ERNAKULAM,PIN686666 7JACOB AGED71YEARS S/O.KURIAN,MANAYALIPARAMBUHOUSE,CHENKARA, - KOTHAMANGALAM,ERNAKULAM,PIN686681 8SABUCHERIAN AGED55YEARS S/O.CHERIYAN,MADEKKALHOUSE, - MUVATTUPUZHA,ERNAKULAM,PIN686661 ``` Crl.M.C No.3572 of 2023 2 ``` 9BINOYANTONY AGED65YEARS S/O.ANTONY,MADEKKALHOUSE, - MUVATTUPUZHA,ERNAKULAM,PIN686661 10KURIAKKOSET.V. AGED62YEARS S/O.VARKEY,THARAMUTTAMHOUSE,AVOLY, - MUVATTUPUZHA-ERNAKULAM,PIN686670 11SABUSCARIA AGED47YEARS S/O.SCARIA,VARIKKAMAKKALHOUSE, - KADALIKKAD,VAZHAKKULAM,ERNAKULAM,PIN686670 12MAJUJOSE AGED38YEARS S/O.JOSEKURIAKKOSE,KOOTTUNGALHOUSE, - VAZHAKKULAM,ERNAKULAM,PIN686670 BYADVS. SRUTHYN.BHAT P.M.RAFIQ AJEESHK.SASI M.REVIKRISHNAN RAHULSUNIL SRUTHYK.K NIKITAJ.MENDEZ P.VIJAYABHANU(SR.) ``` ## **`RESPONDENTS/COMPLAINANT :`** ``` STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,PIN682031 BYADVPUBLICPROSECUTOR ``` ``` SRIVIPINNARAYANSRPP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 06.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.3572 of 2023 3 ## **ORDER** The petitioners herein are accused Nos.1 to 12 in ST No.589 of 2023 – on the file of the Judicial Magistrate of First Class I, Muvattupuzha. 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 11.02.2023 at about 10.45 pm, the Sub Inspector of Police, Muvattupuzha police station received reliable information that certain persons were engaged in playing cards at Sreemoolam club. On receipt of such information, he prepared a search memo and, after forwarding them to the court having jurisdiction, went along with his subordinate officers to the building bearing No.XX/1 within the limits of Muvattupuzha. It is alleged that the petitioners were found on the first floor of the building, and they were engaged in the playing of cards. The cards and other items which were found at the scene of occurrence were seized along with a sum of Rs.3,96,650/-, based on which the crime was registered. 3. Miss Sruthy N. Bhat, the learned counsel appearing for the petitioners, submitted that the registration of the crime against the Crl.M.C No.3572 of 2023 4 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: 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 > 1 [1985 KLT 484] > 2 [1999 (3) KLT 930] > 3 [2014 (1) KHC 469] Crl.M.C No.3572 of 2023 5 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 a proper search within the meaning of Section 5 of the Act, two preconditions are to be satisfied. Crl.M.C No.3572 of 2023 6 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. 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 satisfy 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 would become invalid. It was further held that the presumption under Section 6 of the Act can 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 would become illegal. 7. 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 Crl.M.C No.3572 of 2023 7 5 of the Act in its letter and spirit as outlined by this Court in the decisions above. 8. In that view of the matter, the petitioners are entitled to succeed. This petition will stand allowed. Annexure-2 final report in Crime No.300 of 2023 of the Muvattupuzha Police Station and all further proceedings pursuant thereto against the petitioners now pending as S.T.No.589/2023 on the file of the Judicial First Class Magistrate Court-I, Muvattupuzha, are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.3572 of 2023 8 ## **`APPENDIX OF CRL.MC 3572/2023`** ``` PETITIONERANNEXURES ``` ``` Annexure1TRUECOPYOFTHEFIRINFIRINCRIME NO.300/2023REGISTEREDBYTHEMUVATTUPUZHA POLICESTATION ``` ``` Annexure2TRUECOPYOFTHEFINALREPORTFILEDINCRIME NO.300/2023REGISTEREDBYTHEMUVATTUPUZHA POLICESTATION,NOWPENDINGASS.T.NO.589/2023 ONTHEFILEOFTHECOURTOFTHEJUDICIALFIRST CLASSMAGISTRATE-I,MUVATTUPUZHA ```