State of Kerala v. Abbas, Abdul Latheef @ Nagin, Aboobacker and Ayoob

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR SATURDAY, THE 3RD DAY OF DECEMBER 2011/12TH AGRAHAYANA 1933 Crl.MC.No. 1323 of 2008 (A) --------------------------ST.2796/2007 of JUDL.MAG.OF FIRST CLASS-I,MANJERI PETITIONER(S)/ACCUSED NOS.1 TO 4: -------------------------------- 1. ABBAS, AGED 41 YEARS, S/O.ALAVI, ERANHIYIL HOUSE, KALKUNDU, KARUVARAKUNDU P.O. MALAPPURAM DISTRICT. 2. ABDUL LATHEEF @ NAGIN, AGED 38 YEARS, S/O.KUNHIMUHAMMED, VENGADAN HOUSE KERALA ESTATE P.O., KARUVARAKUNDU P.O. MALAPPURAM DISTRICT. 3. ABOOBACKER, AGED 47 YEARS, S/O.UNNEEN, MELEDATH HOUSE, KERALA ESTATE P.O. KARUVARAKUNDU P.O., MALAPPURAM DISTRICT. 4. AYOOB, AGED 47 YEARS, S/O.ADRUMAN, PULIYODAN HOUSE, KARUVARAKUNDU P.O. MALAPPURAM DISTRICT. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL SRI.P.M.RAFIQ COMPLAINANT(S)/COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR P.M.SAMEER THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.1323/08 ## APPENDIX PETITIONERS' ANNEXURES: ANNEXURE A:TRUE COPY OF THE FIR IN CRIME NO.129/2007 OF KARUVARAKUNDU POLICE STATION. ANNEXURE B:TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE KARUVARAKUNDU POLICE IN CRIME NO.129/2007 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MANJERI. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. -------------------------------------------CRL.M.C. No.1323 OF 2008 --------------------------------------------** Dated this the 3[rd ] day of December, 2011 ## **ORDER** Petitioners are accused Nos.1 to 4 in S.T.No.2796 of 2007 on the file of the Judicial First Class Magistrate- I, Manjeri. They are indicted under sections 7 and 8 of the Kerala Gaming Act 1960. In fact, commission of offences under sections 7 and 8 of the Act is alleged only against the first petitioner and in regard to other petitioners, they are charged only under section 8 of the Act. 2. The case of the prosecution is that on 29.10.2007, at about 13.15 hours, at a place called Kizhakkethala, the petitioners were found engaged in the game of cards by name 'Pullivali'. They were found in a room (Royal Consultants) belonging to the first petitioner/1[st] accused. The S.I of Police, Pandikkad conducted the raid and arrested the petitioners. Consequently, Crime No.129 of **Crl.M.C. 1323/08** 2 2007 was registered against the petitioners and certain others and after the investigation, Annexure- B final report was laid before the Judicial First Class Magistrate Court-I, Manjeri. 3. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor. 4. The core contention of the petitioners is regarding the absolute absence of the requisite ingredients to constitute an offence under sections 7 and 8 of the Act. The learned counsel for the petitioners submitted that a scanning of the allegations made in Annexure- A FIR in the light of the decisions of this Court in **Kunhikannan v. Asst. Sub Inspector of Police** ( **1985 KLT 484)** and **(Danykutty v. State of Kerala) 1999 (3) KLT 930** would reveal that the presumption under section 6 of the Act is available in the facts and circumstances of the case. It is further contended that there is no whisper in the FIR to the effect that the room in question was used as a common gaming house which is the essential ingredient to constitute **Crl.M.C. 1323/08** 3 an offence alleged against the petitioners. The learned counsel relied on paragraph 6 of the decision in **1985 KLT 484** (supra) to contend that merely because certain persons were found engaged in gaming and certain cards or money were seized from the said place, it cannot be said that those persons were engaged in a gaming which would constitute an offence under section 8 of the Act. In the absence of such an allegation in the FIR and Annexure-B final report that the above described room was being used as a common gaming house, the fact that the petitioners were found inside the room and found engaged in gaming and certain cards and money were seized from the place will not be a ground for prosecuting them. 5. A careful consideration of the allegations against the petitioners in Annexures A and B bearing in mind the decisions of this Court in **1985 KLT 484** (supra) and **1999 (3) KLT 930** (supra) is necessary in the light of the rival contentions. In the decision in **1985 KLT 484** (supra), after referring to the relevant provisions under Gaming Act, more particularly, the definition of 'common gaming **Crl.M.C. 1323/08** 4 house' defined under section 2(a) of the Act, it was held:- “6.There is absolutely no allegation regarding the existence or preservation of a common gaming house. There is not even a whisper that the first petitioner is conducting or preserving such a house. So also, there is no allegation that the other petitioners or the other accused were present or engaged in gaming in such a common gaming house. Gaming in a private building or place is not made offences. There is nothing to show that it is intended to be prohibited also. Even if the entire averments in Annexures-A1 to A3 are taken as correct what is established is only that 8 persons were found gaming in a private apartment used as an office or residence. It is unconnected with a common gaming house. The words used are not “gaming house”, but “common gaming house”. Common gaming house indicates that it is a place intended and used frequently as a common place for the purpose. The existence of such place and gambling conducted there may be public nuisance and the purpose of the Act is to prevent the same and make violations punishable as offences. 18.If the principles laid down in the decisions mentioned above are taken into account, it is clear that the papers do not disclose commission of offences for which the 8 persons are charge-sheeted. Annexures-A1 to A3 do not disclose any information under S.5 or observance of formalities provided therein. There is no mention of any common gaming house. The Assistant Sub Inspector does not claim to have received any such information also. The only information he got was that some persons were gaming in a private apartment. He has not conducted any enquiry and he has not recorded any satisfaction. He prepared a search memo and conducted a search. Evidently, that is not sufficient. Even if the persons **Crl.M.C. 1323/08** 5 were gaming in that private building, since it is not alleged to be a common gaming house, it cannot constitute an offence.” 6. A scrutiny of Annexures A and B would reveal that in this case, none of the accused persons were specifically accused of keeping a gaming house. Though the first petitioner/first accused is accused of having committed offence under section 7 of the Act, there is no specific accusation against him that he was keeping a common gaming house. When such an allegation was not raised specifically against the first accused merely because the other accused persons were found in such a place would not be a reason for alleging commission of offence under section 8 against them. In view of the above position obtained from Annexures-A and B and in the light of the decisions referred above, I am of the view that continuation of prosecution against the petitioners based on Annexure-B final report would be an abuse of process of Court. Even if prosecution is allowed to be continued against the petitioners in the circumstances explained above, no successful prosecution can be conducted against them. In the said circumstances, I am of the view that this is a fit case **Crl.M.C. 1323/08** 6 wherein this Court should invoke the power under section 482 of the Code of Criminal Procedure to bring about an abrupt termination of the proceedings in S.T.2796 of 2007 based on Annexure-B final report. Resultantly, Annexure-B final report and further proceedings pursuant thereto pending as S.T.2796 of 2007 on the file of the Judicial First Class Magistrate- I, Manjeri are quashed. This criminal miscellaneous case is allowed. ## **C.T. RAVIKUMAR (Judge)** ## **spc** **Crl.M.C. 1323/08** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **Crl.M.C. 1323/08** 8