JUDGMENT : M.G. GIRATKAR, J. 1. Heard Shri Kasat, learned counsel for the petitioner and Shri Ashirgade, learned Additional Public Prosecutor for the State/respondent no. 1. 2. Rule. Rule made returnable forthwith. 3. By this petition which is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, the petitioner is seeking appropriate writ, order and direction for quashing the FIR which is registered by Police Station, Rajapeth vide Crime No. 377/2016. During the pendency of the petition, charge-sheet came to be filed against the petitioner, therefore, petition is amended and prayer is made for quashing and setting aside the charge-sheet dated 14.6.2016. 4. Brief facts giving rise to the present petition are as under: (i) The petitioner is a well reputed person doing a business of Ice Factory and manufacturing of cold drinks and having deep roots in the society. (ii) Shivleela Sporting and Social Club, Saturna, Amravati (hereinafter referred to as "the club") having its Registration No. Mah/1050/90 under the Societies Registration Act, 1960 and Registration No. F-18240 (M) under the Bombay Public Trust Act, 1950 was registered to promote social and recreational activities including sporting games such as Carrom, Chess, Hockey, Football, Cricket, Card Games Rummy etc. and the said club in December, 2015 has taken on rent the premises i.e. spot of incidence in question belonging to the petitioner for holding the recreational activities as aforesaid. The club is a renowned club having near about 70 members including the petitioner and the club charged a nominal membership fees of Rs. 101 from its members as an annual membership fees. Most of the members are of the age of 45 years and above who usually gathered in the club premises for recreational purposes in the evening time. The club is opened between 3.00 p.m. to 10.00 p.m. The club has installed 6 CCTV cameras which records all the activities inside the club premises for a period of three months on its hard disk. (iii) The club had sought permission from the Commissioner of Police, Amravati for running indoor entertaining games of Caromboard, Chess, Cardroom, Tabletennis etc. at its premises w.e.f. 15.1.2016 and the club started indoor recreational activities like Chess, Carom and Cardroom for playing Rummy etc. (iii) The club had sought permission from the Commissioner of Police, Amravati for running indoor entertaining games of Caromboard, Chess, Cardroom, Tabletennis etc. at its premises w.e.f. 15.1.2016 and the club started indoor recreational activities like Chess, Carom and Cardroom for playing Rummy etc. (iv) On 23.5.2016, while the members of the club were engaged in recreational activity in the cardroom, playing game of skill namely, Rummy with false table counters, at about 5.30 p.m., police officials of the respondent Police Station entered the premises of club at Saturna without any authority of law and without making any enquiry and without verifying as to whether the members were engaged in card game of skill i.e. Rummy, police authorities i.e. respondents registered false crime under Section 4 and 5 of the Maharashtra Prevention of Gambling Act, 1887 (hereinafter referred to as "the Act") against the petitioner and 27 other persons who were present in the club including other members and employees of club and proceeded to seize all the articles belonging to the club. All the members were physically searched and all the money which was in their pockets was seized from them. (v) Police have seized entire possession of the club at the time inside the club premises including the chess boards, carrom boards, membership cards, false table counters, tables, chairs etc. but have not seized the CCTV camera footage even though the same is still intact and available with the club and can be made available as and when required. Even all belongings of the club have been seized, the same is not reflected in the seizure panchanama. (vi) From the FIR, it does not disclose any commission of offences under Sections 4 and 5 of the Act. It is silent about the requirement of gaming i.e. game of chance by the petitioner for stake or wager which is to become the property of the winner. (vii) There is no prima-facie case, even in the charge-sheet filed against the petitioner and no prima facie material to proceed further hence, it is thus prayed to quash the charge-sheet filed against the petitioner. 5. The petition is opposed by the respondents. It is contended by the Police Officer that the petitioner along with others were doing gambling and money were used while playing cards. Charge-sheet is filed against them. 6. 5. The petition is opposed by the respondents. It is contended by the Police Officer that the petitioner along with others were doing gambling and money were used while playing cards. Charge-sheet is filed against them. 6. Learned counsel, Shri Kasat for the petitioner has pointed out Sections 4 and 5 of the Act and submitted that the petitioner being member of the club along with others were playing game of skill i.e. Rummy. Panchanama prepared by the Investigating Officer itself shows that money was seized from the person of the petitioner and other members. Panchanama does not show that the petitioner and other members were playing any game of chance/ gambling. Therefore, act of the respondents arresting the petitioner is illegal. At last, Shri Kasat, learned counsel has submitted that during the pendency of this petition, charge-sheet is filed. Learned counsel has pointed out copy of charge-sheet and submitted that no prima facie case is made out for the offences punishable under Sections 4 and 5 of the Act. 7. In support of his submissions, Shri Kasat, learned counsel pointed out judgment of Division Bench of this Court reported in 2012 SCC Online Bom 832. Shri Kasat, learned counsel submitted that facts in the present case and the facts in cited judgment are near about the same and, therefore, the charge-sheet against the petitioner is liable to be quashed and set aside. 8. On the other hand Shri Ashirgade, learned Additional Public Prosecutor has submitted that there is sufficient material against the applicant, therefore, charge-sheet is filed. He further submitted that the petitioner may file discharge application before the trial Court, hence, petition is liable to be dismissed. 9. Perused the record. From perusal of the record, it is clear that the petitioner is a Member of the club, Saturna, Amravati which is a registered club. Copy of registration certificate is filed on record. It was issued by the Assistant Charity Commissioner, Amravati. The said club obtained the spot of incident/hall on rent from the petitioner for the purpose of recreational activities. Spot panchanama dated 23.5.2016 shows that P.S.I. Mankar of Police Station, Rajapeth received information that gambling was going on the spot of incident i.e. recreation club, thereby they effected raid. 10. Panchanama itself shows that no specific game is mentioned or played by the petitioner and other persons. Spot panchanama dated 23.5.2016 shows that P.S.I. Mankar of Police Station, Rajapeth received information that gambling was going on the spot of incident i.e. recreation club, thereby they effected raid. 10. Panchanama itself shows that no specific game is mentioned or played by the petitioner and other persons. Panchanama simply says that the petitioner and other persons were playing cards with money and those were seized. It appears that the respondent police officer filed FIR on assumptions and presumptions stating that the petitioner was running common gaming-house. There is nothing to show that the petitioner is/was running any common gaming-house. 11. The Division Bench of this Court in the case of Jaywant Balkrishna Sail vs. State of Maharashtra, 2012 SCC Online Bom 832 held that the prosecution has to prove that the accused were playing gambling i.e. the game of chance. In the cited judgment, accused were playing Rummy, they were arrested on the presumption that they were playing gambling. All they were playing Rummy in club. All they were reputed persons. The Division Bench in the cited judgment reproduced following judgments. (1) State of Andhra Pradesh vs. K. Satyanarayan (2) Robert Elangoj vs. Inspector of Police (3) Galib Hussain Khan vs. State of Maharashtra (4) State of West Bengal vs. Swapan Kumar Guha (5) Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojtrao Angre 12. Section 4 and 5 of the Act reads as under: 4. (1) Whoever – (a) [opens, keeps or uses any house, room or place] for the purpose of a common gaming-house. (b) being the owner or occupier of any such house, room or place knowingly or wilfully permits the same to be opened, occupied, kept or used by any other person for the purpose aforesaid. (c) has the care or management of, or in any manner assists in conducting the business of, any such house, room or place opened, occupied, kept or used for the purpose aforesaid. (d) advances or furnishes money for the purposes of gaming with persons frequenting any such house, room or place. Shall, on conviction, be punished with imprisonment [which may extend to two years] and may also be punished with fine: Provided that: (a) for a first offence such imprisonment shall not be less than [three months and fine shall not be less than five hundred rupees]. Shall, on conviction, be punished with imprisonment [which may extend to two years] and may also be punished with fine: Provided that: (a) for a first offence such imprisonment shall not be less than [three months and fine shall not be less than five hundred rupees]. (b) for a second offence such imprisonment shall not be less than [six months and fine shall not be less than one thousand rupees]. (c) for a third or subsequent offence such imprisonment shall not be less than [one year and fine shall not be less than two thousand rupees]. (2) Nothing contained in the provisions of the Probation of Offenders Act, 1958 or in sub-sections (1), (4), (5) and (6) of section 360 of the Code of Criminal Procedure, 1973, shall apply to any person convicted under this section. 5. Whoever is found in any common gaming-house gaming or present for the purpose of gaming, [shall on conviction be punished] with imprisonment which may extend to six months [and may also be punished with fine]. Provided that: (a) for a first offence such imprisonment shall not be less than one month and fine shall not be less than two hundred rupees; (b) for a second offence such imprisonment shall not be less than three months and fine shall not be less than two hundred rupees; (c) for a third or subsequent offence such imprisonment shall not be less than six months and fine shall not be less than two hundred rupees. Any person found in any common gaming-house during any gaming therein shall be presumed, until the contrary [is proved], to have been there for the purpose of gaming. 13. In view of the provisions of Sections 4 and 5 and the cited judgment in the case of Jaywant Balkrishna Sail vs. State of Maharashtra (supra), it is clear that the respondents failed to show any prima-facie case against the petitioner that the petitioner along with other persons were found playing gambling at the time of effecting raid. There is no any averment in the FIR or charge-sheet that the petitioner along with other persons were found playing gambling, a particular game. Documents filed on record shows that the petitioner is one of the members of the club. It is the case of the petitioner that they were playing Rummy. Game of Rummy is not a gambling as held in above cited decision. Documents filed on record shows that the petitioner is one of the members of the club. It is the case of the petitioner that they were playing Rummy. Game of Rummy is not a gambling as held in above cited decision. Therefore, the charge-sheet filed by the respondents in the Court of Judicial Magistrate First Class, Court No. 2, Amravati is liable to be quashed and set aside in respect of the petitioner. Writ petition is allowed in terms of prayer clause (AA).