ORDER 1. Criminal Miscellaneous Petition No.5404 of 1983 is filed by one Victor Raj, the accused in C.C.No.4718/S3 on the file of the Court of the Judicial Second Class Magistrate No.I, Tirunelveli, to quash the said prosecution. Criminal Miscellaneous Petition No.5406 of 1983 is filed by the accused Nos.2, 3, 4, 7, 10, 11, 13, 16 and 17 in S.T.C.No.5014 of 1983 on the file of the Judicial Second Class Magistrate No.I, Tirunelveli to quash the said prosecution. 2. The case of the prosecution is that on 10.7.83 at about 7.15 p.m. in 7-B, East Car Street, Kailasapuram, Tirunelveli Junction, the petitioners herein and 9 others were found playing ‘Vettu Chettu’ which is punishable under sections 8 and 9 of the Tamil Nadu Gaming Act III of 1930, hereinafter referred to as the Act. The prosecution also employed one Muthuswami as decoy who took with him specified number of initialled currency notes to the extent of Rs.100/- and joined the gang. The respondent raided the premises and recovered Rs.1,510-25 from the above said 19 persons which included the currency to the value of Rs.100/-taken by the said Muthuswami. The currency and the game of cards were seized by the respondent and the above prosecution was launched. 3. The above petitions had been filed by the respective petitioners to quash the prosecution on the following grounds: 1. Playing cards per se is not an offence unless it is played in a common gaming house as defined in section 3 of the Act. 2. In this case there is no material to show that the game of cards was played in a common gaming house. 4. In order to constitute an offence under sections 8 and 9 of the Act a common gaming - house must have been opened and gaming ought to have been carried on in such common gaming house. 2. In this case there is no material to show that the game of cards was played in a common gaming house. 4. In order to constitute an offence under sections 8 and 9 of the Act a common gaming - house must have been opened and gaming ought to have been carried on in such common gaming house. Common gaming house is defined in section 3 of the Act, as follows: “‘Common gaming-house’, means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying using or keeping such house, room, tent, enclosure, vehicle, vessel or place whether by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel or place or otherwise howsoever; and includes any house, room, tent, enclosure, vehicle, vessel or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming.” On a hearing of the definition it is seen that profit or gain to the owner of the premises is an essential ingredient to come to the conclusion that the premises is used as common gaming house. In the case reported in Santhanam Iyengar v. State Santhanam Iyengar v. State (1959) M.W.N. (Crl.) 43, a single Judge of this Court observed as follows: “Gaming is not an offence per se. It is an offence only when it is carried on in a public place or in a common gaming house as defined in the Public Gambling Act or its local variants…………. The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of section 8 nor of section 12, is not an offence under the Act. The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of section 8 nor of section 12, is not an offence under the Act. Similarly, where no commission is charged or gaming is carried on for pleasure and not for gain or when it is carried on a religious festival e.g., Diwali day and even where charges are made but not as profit or gain but for the payment of servants who look after the comforts of those who happen to visit the house or for remunerating those who minister to the comforts of the persons assembled or for presents or perquisites given to attendants, no offence is committed under the Act.” In a later case reported in C.R. Subramaniam and others IN RE. C.R. Subramaniam and others IN RE. (1966) L.W. (Crl.) 38 (N.R.C.), Natesan, J., observed as follows: “The cardinal constituent for an offence under sections 45 and 46 of the Act is that the place used for gaming should be a common gaming house as defined in the Act. Profit or gain to the persons owning, occupying, using or keeping the place, whether by way of a charge for the instruments of gaming or of the place or otherwise howsoever is a necessary and primary element and when that is not established, there can be no offence under section 45 or section 46 of the Act…….. What is prohibited is not game of cards for stakes, but playing the game in a common gaming house.” Natarajan, J., in an unreported decision (Crl.M.P.No.7185 of 1976, dated 15.4.1977) quoted with approval the above two judgments and held that profit or gain is a sine quo non to come to the conclusion that the premises used is for a common gaming house. The Supreme Court also in the case reported in State of A.P. v. Satyanarayana State of A.P. v. Satyanarayana (1968) L.W. (Crl.) 109: (1968) 2 MLJ. (S.C.) 50: (1968) 2 An.W.R. (S.C.) 50: (1968) 2 S.C.J. 325: (1968) 2 S.C.R. 387 : (1968) MLJ. (Crl.) 516: A.I.R. 1968 S.C. 825, observed as follows: “As regards the extra charge for playing cards, we may say that Clubs usually make an extra charge for anything they supply to the members because it is with the extra payments that the management of the Club is carried on and other amenities are provided. (Crl.) 516: A.I.R. 1968 S.C. 825, observed as follows: “As regards the extra charge for playing cards, we may say that Clubs usually make an extra charge for anything they supply to the members because it is with the extra payments that the management of the Club is carried on and other amenities are provided. It is commonly known that accounts have to be kept stocks have to be purchased and maintained for the use of the members and service is given, Money is thus collected and there is expenditure for running for each section of the establishment. Just as some fee is charged for the games of billiards, pingpong, tennis, etc., an extra charge for playing cards (unless it is extravagant) would not show that the Club was making a profit or gain so as to render the Club into a common gambling house. Similarly, a late fee is generally charged from members who use the Club premises beyond the scheduled time. This is necessary because the servants of the Club who attend on the members have to be paid extra remuneration by way of over-time and expenditure on lights and other amenities has to be incurred beyond the Club hours. Such a charge is usual in most of the Clubs and we can take judicial notice of the fact.” Bearing in mind the above decisions if we examine facts of the case it can be seen that there is no material to show that profit or gain was derived by the petitioner in Crl.M.P.No.5404 of 1983 from the gaming of cards that was going on in the premises. The decoy witness Muthuswami says that he took a specific number of currency notes amounting to Rs.100/- and joined the game and that he had lost the entire amount in the game. He has not stated that he had paid any amount by way of commission to the owner of the premises viz., the first accused. Under the circumstances from the material on record it is not possible to conclude that a profit or gain was made in the gaming by anybody. Learned Public Prosecutor contended that Muthuswami, the decoy witness, may subsequently during the course of prosecution evidence be able to say whether he had paid any commission to the person in possession of the premises. Natarajan, J., in an unreported decision (Crl.M.P.No.7185 of 1976 dt. Learned Public Prosecutor contended that Muthuswami, the decoy witness, may subsequently during the course of prosecution evidence be able to say whether he had paid any commission to the person in possession of the premises. Natarajan, J., in an unreported decision (Crl.M.P.No.7185 of 1976 dt. 15.4.1977) observed that making profit or gain is an essential feature for a common gaming house and a premises cannot be called as common gaming house if that essential feature is lacking. Under the circumstances it is not possible for the prosecution to improve the case later on during the trial. 5. As the evidence stands the prosecution version amounts only to playing cards in a premises and there is nothing to show that such premises is a common gaming house. In the case reported in Sundaram and 9 others v. The State by the Sub Inspector of Police, Kovilpatti Police Station Sundaram and 9 others v. The State by the Sub Inspector of Police, Kovilpatti Police Station (1983) T.L.N.J. 263, Natarajan, J., under similar circumstances held that the prosecution will have to be quashed. 6. In the result both the above petitions are allowed and the case against the petitioner in Crl.M.P.No.5404 of 1983 (C.C.No.4718 of 1983) and the petitioners in Crl.M.P.No.5406 of 1983 (S.T.C.No.5014 of 1983) pending on the file of the Judicial Second Class Magistrate I, Tirunelveli, is quashed. Money recovered from the petitioners directed to be returned to them except the decoy money. Petitions allowed.