Judgment : One K. Saliappa Pillai is the President of Royal Recreation Club situated at A. Kalayamputhur in Palani Taluk. The club was registered under the Tamil Nadu Societies Registration Act, 1975 as S.No. 25/1990 on 26. 1990. There are about 60 members in the club, who hail from different walks of life. The club is administered by the Executive Committee consisting of President, Vice-President, Secretary, Treasurer and three other members. The present petitioners claim that the members of the Club are utilising the facility offered by the Club such as Daily Newspapers, Weekly and Monthly Magazines and the games of carrom, chess, badminton and rummy. The Inspector of Police, Palani Taluk Police Station, the respondent herein inspected the Club in the first week of July, 1990. It appears that he was satisfied that the members of the club were not indulging in any illegal activities. On 18. 1990 at 7.00 p.m. he again visited the club. Some members therein were playing the game of rummy with playing cards. The Inspector warned them that they should not play rummy and if they are found playing rummy in future, he would lodge criminal prosecution against them. The explanation offered by the office-bearers of the Club that there could be no objection for playing rummy which was not a game of chance did not carry conviction with him. So to protect the interest of the Club and its members the Club filed W.P.No. 14155 of 1990 before this Court. In its order dated 12. 1990 this Court has ordered that as long as the petitioners carry on lawful activities in the recreation club and do not indulge in gambling or other unlawful activities, they cannot be interfered with by the police. On 11. 1991 the Secretary of the club sent a petition to the Superintendent of Police, Quaid-A-Milleth District undertaking that they would not indulge in any unlawful gaming activities in the premises of the Club and prayed for an order directing the Inspector of Police, Palani not to prohibit the running of the club. On 12. 1991 the Secretary again sent a petition to the Deputy Superintendent of Police, Palani. In this he drew his attention to the order of this Court in W.P.No. 14153 of 1990 and enclosed a copy of the same. Besides, he has stated that on 12. On 12. 1991 the Secretary again sent a petition to the Deputy Superintendent of Police, Palani. In this he drew his attention to the order of this Court in W.P.No. 14153 of 1990 and enclosed a copy of the same. Besides, he has stated that on 12. 1991 at about 11.00 p.m. the Inspector visited the Club and warned the watchman who was sleeping there that no one should run the club without seeking his permission. Thereupon, when he met the Inspector at 9.00 p.m. on 12. 1991 the Inspector told him that he should not conduct the activities of the club. Since they are conducting the recreation club as per the rules, they may be permitted to continue to run the same. 2. In this background, on 12. 1991 at 5.30 p.m. the Sub-Inspector of Police, Palani Police Station along with four Head Constables, one I Grade Constable and thirteen Constables led by the Inspector of Police, Palani raided the Royal Recreation Club with the search warrant of Deputy Superintendant of Police, Palani and arrested Saliappa Pillai and 27 others. He also seized one round table, 52 playing cards, 7 ‘S’ type wire chairs and a cash of Rs. 1,062 available there under police mahazar. On the basis of the F.I.R. lodged in Crime Nos.137 to 165 of 1991 of his station he laid to charge-sheets. The first charge-sheet is against Saliappa Pillai under Sec.8 of the Tamil Nadu Gaming Act (hereinafter referred to as ‘the Act’) for having permitted to play ‘Vettu Aattam’ in the house of one Ganapathy in Thamaraikulam Road, Azhagapuri village which is under his control. The other one is against Salliappa Pillai and 27 others under Sec.9 of the Act for having played ‘Vettu Aattam’ which is a game of chance with 52 playing cards and a cash of Rs. 1,062 in the premises. They were taken on file by learned Judicial Magistrate, Palani as S.T.C.Nos. 879 and 880 of 1991. And the accused therein seek to quash the proceedings in those two criminal original petitions by invoking the jurisdiction of this Court under Sec. 482 of the Code of Criminal Procedure. 3. 1,062 in the premises. They were taken on file by learned Judicial Magistrate, Palani as S.T.C.Nos. 879 and 880 of 1991. And the accused therein seek to quash the proceedings in those two criminal original petitions by invoking the jurisdiction of this Court under Sec. 482 of the Code of Criminal Procedure. 3. Mr.K. Mohan Ram, learned counsel for the petitioners has submitted that the materials produced by the prosecution do not disclose any offence under Secs.8 and 9 of the Act and as such the proceedings before the Magistrate are not maintainable and they are void ab initio. According to him there is absolutely no evidence to show that the premises of Royal Recreation Club was used as a common gaming house as defined in Sec. 3 of the Act. The charge sheet laid by the police does not even allege that the premises raided is a Recreation Club registered under the Societies Act in the name of Royal Recreation Club. There is no evidence to show that the first petitioner had collected any amount from the other accused for permitting them to indulge in playing cards and the usual decoy witness arranged in such cases to bring out the fact that money was paid is conspicuously about in this case. This itself will show the mala fide intention of the respondent/Police. Profit or gain to the owner or occupier is a sine qua non for holding any premises used as a common gaming house. What is prohibited is not game of cards for stakes but playing the game in a common gaming house. The police has not obtained any search warrant from the Magistrate even though they had enough time to obtain the same. The petitioners were found playing cards in the premises of a registered club. If the trial court is allowed to take place, they will be put to unnecessary hardship. When the charge sheet does not at all contain the ingredients of the offence complained of, continuation of the proceedings should not be allowed. 4. As per Sec.8 of the Tamil Nadu Gaming Act, whoever opens, keeps or uses or permits to be used any common gaming house for gaming therein is liable to be punished. And under Sec.9 of the Act, whoever is found gaming or present for the purpose of gaming in a common gaming house is guilty. 4. As per Sec.8 of the Tamil Nadu Gaming Act, whoever opens, keeps or uses or permits to be used any common gaming house for gaming therein is liable to be punished. And under Sec.9 of the Act, whoever is found gaming or present for the purpose of gaming in a common gaming house is guilty. And any person found in any common gaming house during any gaming or playing therein shall be presumed until the contrary how be proved to have been there for the purpose of gaming. No existence of a common gaming house is an essential pre-requisite for initiation of proceedings under Secs. 8 and 9 of the Act. In the absence of any common gaming house, no offence is made out under these two sections. And the definition of the expression ‘common gaming house’ in Sec. 3 of the Act runs as under. "Common gaming house" means any house, room, tent, enclosure, vehicles, vessel or any place whatever 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." 5. In a number of case, it has been held that the running of a common game house is a primordial requisite before any one can be convicted under Secs.8 and 9 of the Act. As early as in Santhanam Iyengar v. The State, 1959 M.W.N. (Crl.) 43, Ramasamy, J, while dealing with Secs. 45 and 46 of the Madras City Police Act, whose wordings are similar to those in Secs.8 and 9 of the Tamil Nadu Gaming Act, has succintly stated the law on the object as under: "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...Sec.8 of the Madras Gaming Act, penalises gambling in a common gaming house (gaming and gambling have substantially the same meaning), while Sec.12 prescribes the punishment for gambling in a public place. It is an offence only when it is carried on in a public place or in a common gaming house...Sec.8 of the Madras Gaming Act, penalises gambling in a common gaming house (gaming and gambling have substantially the same meaning), while Sec.12 prescribes the punishment for gambling in a public place. The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of Sec.8 nor of Sec. 12, is not on 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, example, 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 administer to the comforts of the persons assembled or for presents or pre-requisities given to attendants, no offence is committed under the Act....To sum up, gambling by itself is not an offence and it becomes only an offence when the gaming takes place in a common gaming house or in a public place, because of the policy of the law is not to prevent individual pastimes for whiling away the time but only when that pastime becomes a source of demoralisation, as in the case of the former, or a public nuisance, likely to provoke a breach of the peace as in the case of the latter". 6. In C.B. Subramaniam, In re., 1966 L.W. (Crl.) J.S. 30, Natesan, J. has held that the cardinal constituent for an offence under Secs.45 and 46 of the City Police 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 coming occupying, using or keeping the place whether by way of a charge for the instruments of gaming or of the place of otherwise howsoever is a necessary and primary element and when that is not established, there can be no offence under Secs. 45 and 46 of the Act. 7. Profit or gain to the persons coming occupying, using or keeping the place whether by way of a charge for the instruments of gaming or of the place of otherwise howsoever is a necessary and primary element and when that is not established, there can be no offence under Secs. 45 and 46 of the Act. 7. In State of Andhra Pradesh v. K. Satyanarayanan, A.I.R. 1960 S.C. 825, playing cards were supplied to the players by the club at an extra charge and there was a sitting fee for those who joined the game and if the game continued beyond a certain time in the night, a late fee was also levied. The Supreme Court took the view that those circumstances would not show that the club was making a profit or gain so as to render the club into a common gambling house. If there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game played for stakes, the offence may be brought home. .8. In Sundaram v. State by the Inspector of Police, 1983 L.W. (Crl.) 103, the charge-sheet was to the effect that on reliable information that gambling activities were going on in a particular premises, the Sub-Inspector of Police obtained permission from the Assistant Superintendent of Police and raided the place under the supervision of the Inspector of Police and with the company of some police personnel reached the house and found the doors to be closed and knocking the doors he entered the house. It was found that the accused were seated around the round table in the hall. There were 52 cards and some cash on the table. Accused were saying, “Close card Rs.10 open card Rs. 10 missing and loosing”. They were also shuffling and picking up the cards. The Inspector seized cards and cash and arrested the 10th accused for having permitted accused 1 to 9 to indulge in gambling activities in the premises. Then he registered the case under Secs.8 and 9 of the Act. Accused were saying, “Close card Rs.10 open card Rs. 10 missing and loosing”. They were also shuffling and picking up the cards. The Inspector seized cards and cash and arrested the 10th accused for having permitted accused 1 to 9 to indulge in gambling activities in the premises. Then he registered the case under Secs.8 and 9 of the Act. While allowing a petition to quash the proceedings Natarajan, J., has held that before ever a person can be convicted under Secs.8 and 9 of the Act, there must be proof that common gaming house was being run by someone and that such place was being made use of for gambling activities. There was no mention in the report about anybody running a common gaming house. All that was stated was that the tenth petitioner has permitted the other petitioners to play card games inside the premises. There was absolutely no mention about the tenth petitioner permitting the use of premise for gaming activities with a view to derive profit or gain for himself. There was no reason why the petitioners should be made to undergo or deal of a trial when the charge sheet appears to have been filed for motivated reasons and when it did not at all contain the ingredients of the offences complained of. .9. The nature of evidence to be procured in a case like this is indicated in Santhanam Iyengar v. The State, 1959 M.W.N. (Crl.) 43, referred to above in this manner: .“The owner may admit the offence or it will have to be proved by the fact that the police officers were keeping the house under observation on different dates and that a number of people have been, out of all proportion to legitimate visitors, frequenting the place. In addition, decoy witnesses can be used to speak to inside information. But inasmuch as the evidence of decoy witness has to be scrutinised with great care, though the evidence of a decoy is not that of an accomplice, prudence requires that two or more decoys on different occasions should be used so that the information given by one can be checked with the information given by the others and the court may accept the evidence without habitation. This evidence will have to be supplemented by examining persons living in other portions of the same house or in adjoining house, who, if really the premises had become a gambling den, will be the first to speak to that notorious reputation as well as what they had observed. This type of evidence is considered as adequate and necessary for instance by the metropolitan police in England for bringing home the offences of running gambling done....” 10. However, the Sub Inspector herein has not made any endeavour to proceed in this direction. The background of the raid mentioned earlier would reveal that the Inspector concerned had taken into his hand to harass the member of Royal Recreation Club for reasons of his own and in his determination to wreak vengeance against them he never bothered to gather materials essential to bring home the requirements of Secs. 8 and 9 of the Act. While the charge-sheet under Sec. 8 of the Act simply states that the first petitioner permitted gaming activities in the house under his control and derived profit, the charge under Sec. 9 is to the effect that all the petitioners played card game for stakes with profit motive. Even the F.I.R. does not proceed beyond this. There is not even a whisper that any table money was collected. The derivation of profit or making gain by the first petitioner is an indispensable requisite. Once the petitioners are charge sheeted under Secs.8 and 9 of the Act, it should be established that the Royal Recreation Club where they have played the game was used as a common gaminghouse. The bold assertion that for the purpose of profit the first petitioner permitted others to play card games and there were found playing ‘vettu aattam’ takes us nowhere. In order to constitute a house, a common gaming house, there must be materials to indicate that the owner or occupier takes a fixed commission which is irrespective of the result of the gaming or, at the outset, that he manipulates the conditions in such a manner that he cannot possibly lose. The essential element is charge for the use of the common gaming house. If this element is wanting, the occupier of the premises cannot legally be convicted. The essential element is charge for the use of the common gaming house. If this element is wanting, the occupier of the premises cannot legally be convicted. The mere fact that certain articles kept by a man were used as instruments of gaming, if it could not be said that they were used for his profit or gain, does not convert the house into public gaming house. With a view to convict a person for keeping a common gaming house, it is necessary for the prosecution to prove that he owned the house or was the occupier of it and that the instruments of gambling were kept or used for profit or gain of that person. .11. There is also no sufficient date that the petitioners were playing card game involving no skill but only a game of chance. Games of mere skill are not penalised. Where in a game chance plays no part or a very negligible part. The matter is beyond dispute and the provisions of the Act are not applicable. Therefore, the point to be determined, whether a game of chance or a game of pure skill was played would depend upon various circumstances like, class of players, stakes etc Here comes, the importance of the trap-witness. It is he alone who can furnish the requisite information as to what was the game that was being played. Though by virtue of Sec. 6 of the Act the prosecution starts with a presumption in its favour from the materials of gaming found in any place, the player accused would assert that they were playing a game of skill only and there is nothing to improbabilise and the benefit of the doubt raised must go to the accused and the prosecution will be at an end. The material discovered in relation to a card game will equally support both the card game of skill and card game of chance. Unless the game itself is detailed, an element of skill could be claimed in what ostensibly appears to be a game of chance and an element of chance may be shown is a game of skill and the determination will be a matter of difficulty as to whether a particular game is a game of chance or more skill. 12. Unless the game itself is detailed, an element of skill could be claimed in what ostensibly appears to be a game of chance and an element of chance may be shown is a game of skill and the determination will be a matter of difficulty as to whether a particular game is a game of chance or more skill. 12. Sec. 6 of the Act says that the instruments of gaming and the persons found in a place searched under Sec.5 shall be evidence that such place is used as a common gaming house and that the persons found therein were present for the purpose of gaming, although no play was actually seen by the police officer or any of his assistants. It is only a piece of evidence in support of the prosecution for an offence under Sec. 8 or 9. But it would be wrong to treat it as conclusive evidence warranting a finding of guilty of the persons found therein without anything more. Though Sec. 6 does not in terms prohibit conviction merely on the presumption raised under it, it is still invariably the practice prevailing in this Court not to convict on mere presumption alone unless there is something more in addition to the presumption missed under Sec.6. 13. It is well-settled law that where the allegations not out in the complaint or the charge-sheet do not constitute any offence it is competent to the High Court exercising its inherent jurisdiction under Sec. 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. The allegations in the F.I.R. herein even if they were taken on their value and accepted in their entirety, do not constitute an offence. So in much cases, no question of appreciation of evidence arises. Since the F.I.R. does not disclose any offence, the case is bound to fail even if the trial is allowed so, there is hardly any jurisdiction for the trial being proceeded with. 14. Time and again this Court has pointed out that gaming is not an offence per as but in punishable only when it is carried on in a public place for commercialisation purpose and in a common gaming house with profit motive as contemplated under the Gaming Act. 14. Time and again this Court has pointed out that gaming is not an offence per as but in punishable only when it is carried on in a public place for commercialisation purpose and in a common gaming house with profit motive as contemplated under the Gaming Act. However, law enforcing agencies ignoring the marked differences between play of games in a house or club and gaming activities carried in a common gaming house indulge in endless prosecution merely to harass the innocent Though the petitioners herein have taken care to have this Court and obtained orders to carry on lawful activities in the recreation club and petition to Superintendent of Police to direct the Inspector not to prohibit the running of club, the Inspector has though it fit to raid the club even without obtaining prior search warrant from the Magistrate concerned. In this connection, it will be pertinent to extract with respect what Natarajan, J. had to observe in Sundaram v. State by the Inspector of Police, 1083 L.W. (Crl.) 103. "Inspite of the legal position being well settled, the police authorities, particularly the lower strata of officers seen to be completely unaware of the provisions of law. It is not known whether their ignorance of the correct legal position is on account of lack of proper instructions or due to a wanton attitude to flout the law.... It is deplorable that law enforcing officers should resort to such despicable practice with a view to make their importance felt in the town and with a view to nullify the effect of the verdict of court in favour of the club members in an earlier case. Instances like this if allowed to go unchecked by the superior police officers will only lead to the public losing confidence in their fair manner of functioning of the police force and the courts also finding it difficult to give credence to the statements of police officers." 15. In the result, the petitions are allowed and the proceedings in S.T.C.Nos. 879 and 880 of 1991 on the file of Judicial Magistrate, Palani will stand quashed.