M.T.Madhusoodanan vs State Of Kerala
2021 Latest Caselaw 1616 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      Crl.MC.No.2404 OF 2018

    CRIME NO.611/2018 OF NORTH PARUR POLICE STATION, ERNAKULAM


PETITIONER/ACCUSED 1 & 2:

      1      M.T.MADHUSOODANAN
             AGED 50 YEARS, S/O.THANKAPPAN NAIR,CLUB SECRETARY,
             SREE MOOLAM JUBILEE CLUB, KACHERIPADY, NORTH PARUR,
             ERNAKULAM DISTRICT.

      2      SHOLLY JOSE
             AGED 58 YEARS, S/O.V.P.JOSEPH, PRESIDENT,
             SREE MOOLAM JUBILEE CLUB, KACHERIPADY, NORTH PARUR,
             ERNAKULAM DISTRICT.

             BY ADVS.
             DR.K.P.SATHEESAN (SR.)
             SRI.S.K.ADHITHYAN
             SRI.P.MOHANDAS (ERNAKULAM)
             SRI.MUHAMMED IBRAHIM ABDUL SAMAD
             SRI.SABU PULLAN
             SRI.K.SUDHINKUMAR
             SRI.S.VIBHEESHANAN

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 PARUR POLICE STATION, ERNAKULAM RURAL,
             ERNAKULAM DISTRICT, PIN-683 513.

OTHER PRESENT:

             SRI.K.B.UDAYAKUMAR, SR.PP

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD            ON
15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.2404 OF 2018                   2




                                        ORDER

Dated this the 15th day of January 2021 The petitioners are accused 1 & 2 in crime No.611/2018 of

North Parur Police Station. The above case is registered alleging

offences punishable under Sections 7 and 8 of the Kerala

Gaming Act, 1960.

2. The prosecution case is that on 24.02.2018, at about

7.30 p.m., the detecting officer in this case got an information

that at Parur Sree Moolam Jubilee Club, certain peoples are

doing illegal activities in violation of the Kerala Gaming Act and

he reached there. He found that the members of the club are

playing cards. According to the detecting officer, they were

playing cards which is known as "pannimalathu". Therefore, the

case was registered as Crime No.611/2018 under Sections 7 and 8

of the Kerala Gaming Act.

3. Heard learned counsel for the petitioners and the

Public Prosecutor.

4. Sri.K.P. Satheesan, the learned Senior counsel,

argued that the entire proceedings in Annexure II FIR is

unsustainable because there is violation of Section 5 of the

Kerala Gaming Act. The learned Senior counsel relied judgment

of the Division Bench of this Court in Sugathan v. State of Kerala

& Another [2018(4) KHC 45], in which it is stated that if there is

violation of Section 5 of the Kerala Gaming Act, the entire

prosecution will be vitiated.

5. The learned Public Prosecutor, on the other hand,

submitted that this is a matter of evidence and the petitioner

has to prove the same before the appropriate court at

appropriate stage. The learned Public Prosecutor submitted

that this is only an FIR which is registered and no final report is

filed and hence this Court may not quash the criminal

investigation in this case. The learned Public Prosecutor

opposed the prayer to quash the FIR in this case.

6. I perused Annexure II FIR. Section 5 of the Kerala

Gaming Act, 1960, read like this:-

"5. Power to enter and search.- 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."

7. This Court considered the impact of Section 5 of the

Kerala Gaming Act in Sugathan's case (supra). The relevant

portion of the judgment of this Court is extracted herein:-

"18. Purposeof 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 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."

8. After going through the First Information

Statement, it is clear that there is total non-compliance of

Section 5 of the Kerala Gaming Act. There is no case to the

detecting officer that there is reason to believe that the said

place is used as a common gaming house and he recorded his

reason to entertain such a belief. If that is the case, there is total

violation of Section 5 of the Gaming Act. Consequently the

exercise of power under Section 5 of the Act would become

invalid. In such circumstances, according to me, the prosecution

against the petitioners based on Annexure II FIR is an abuse of

the process of court.

Therefore this criminal miscellaneous case is allowed. All

further proceedings against the petitioners in Crime No.611/2018

of North Parur Police Station, are quashed.

Sd/-

P.V.KUNHIKRISHNAN

JUDGE Skk//16012021

APPENDIX PETITIONER'S EXHIBITS:

ANNEXURE-I: TRUE COPY OF THE PHOTOGRAPH RECORDED IN THE CCTV OF THE CLUB SHOWING THE MEMBERS PLAYING THE CARDS.

ANNEXURE-II: CERTIFIED COPY OF THE F.I.R. IN CRIME NO.611/2018 DATED 24.02.2018 OF NORTH PARUR POLICE STATION PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, NORTH PARUR.

ANNEXURE-III: TRUE COPY OF THE PHOTOGRAPH SHOWING THE AMOUNT IS COLLECTED BY THE 2ND RESPONDENT.

            RESPONDENTS' EXHIBITS:       NIL