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2017 DIGILAW 1526 (KER)

Sugathan v. State of Kerala

2017-12-20

A.M.SHAFFIQUE, P.SOMARAJAN

body2017
ORDER : A. M. Shaffique, J. 1. This is an application filed by accused Nos. 1 & 2 in Crime No. 1086/2012 on the file of the Valappad Police Station, Thrissur District, to quash the proceedings under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition, the petitioners are accused Nos. 1 & 2 in Crime No. 1086/2012 of Valappad Police Station, alleging that the petitioners have committed the offence punishable under Section 7 & 8 of Kerala Gaming Act, 1960. The case of the prosecution in nutshell was that on 21.10.2012 at about 9.30 p.m., the accused persons were found playing cards for money in Thalikkulam Beach Resort at Thalikkulam and they have conducted search and seized the playing cards and an amount of Rs.1,27,500/- and thereafter registered Annexure I First Information Report as Crime No. 1086/2012 Crl.M.C. No. 3634 of 2012 of Valappad Police Station. According to the petitioners, they have been falsely implicated in the case. So the petitioners have come before this Court seeking the following relief: (i) quash Annexure I First Information Report in Crime No.1086/2012 dated 21.10.2012 on the files of the Valappad Police Station. 3. Heard both sides. 4. Learned counsel for the petitioners submitted that in view of the dictum laid down in the decision reported in Danykutty v. State of Kerala 1999 (3) KLT 930 : 1999 (2) KLJ 1048 , Kunhikannan and Others v. Asst. Sub Inspector of Police 1985 KLT 484 : 1985 KLJ 462 , State of Andhra Pradesh v. K. Satyanaraya and Others AIR 1968 SC 825 and Sunil and Others v. State of Kerala and Another 2014 (1) KHC 469 , submitted unless it is proved that the place is being used as a common gaming house, mere playing of cards from a place will not amount to an offence under that Act even if the entire allegation in the case is admitted. 5. The learned Public wherein it has been held that invoking the presumption under Section 6 of the Kerala Gaming Act if it is proved that they were found playing with cards for money, then presumption that it is a common gaming house is attracted has not been considered. 6. 5. The learned Public wherein it has been held that invoking the presumption under Section 6 of the Kerala Gaming Act if it is proved that they were found playing with cards for money, then presumption that it is a common gaming house is attracted has not been considered. 6. The case of the prosecution was that on 21.10.2012 at about 9.30 p.m. the accused were found engaged in playing cards in Thalikkulam Beach Resort at Thalikkulam and accordingly they conducted search and seized the playing cards and a cash of Rs.1,27,500/- and registered Annexure I First Information Report as Crime No. 1086/2012 alleging offences under Section 7 & 8 of the Kerala Gaming Act. In the decisions relied on by the learned counsel for the petitioners namely Sunil and Others v. State of Kerala and Another 2014 (1) KHC 469 , Danykutty v. State of Kerala 1999 (3) KLT 930 : 1999 (2) KLJ 1048 , Kunhikannan and Others v. Asst. Sub Inspector of Police 1985 KLT 484 : 1985 KLJ 462 and State of Andhra Pradesh v. K. Satyanaraya and Others AIR 1968 SC 825 , Single Bench of this Court has held that merely because persons were found playing cards alone will not be sufficient to attract the offence under Section 7 & 8 of Kerala Gaming Act. But, another Single Bench of this Court in Abraham v. State of Kerala 2000 (3) KLT 163 : 2000 (2) KLJ 310 held that if there is an allegation that the accused were engaged in gaming or present in the common gaming house for the purpose of gaming and instruments of gaming were seized from the premises, that circumstances shall be evidenced until the contrary is proved that such house room, or place is used as a common gaming house and such persons found therein were present for the purpose of gaming invoking the presumption under Section 6 of the Act and found that it is not a case to be quashed and also observed that the earlier decisions namely State of Kerala v. Scariah (1966 KLT 780), Kunhikannan and Others v. Asst. Sub Inspector of Police ( 1985 KLT 484 : 1985 KLJ 462 ), Anthumayi v. State of Kerala ( 1999 (1) KLT 149 : 1999 (1) KLJ 97 ), Danykutty v. State of Kerala ( 1999 (3) KLT 930 : 1999 (2) KLJ 1048 ) are not good in law in view of the dictum laid down in the decisions reported in Jagat Singh v. State of Gujarat ( AIR 1979 SC 857 ). But, this decision has not been considered as by the subsequent decisions rendered by this Court namely Sunil and Others v. State of Kerala and Another 2014 (1) KHC 469 . So under the circumstances since there are conflicting views expressed by two benches of this Court and considering the important question of law raised on the subject, this Court feels that it is necessary that the correct principle of law has to be resolved by a larger bench, since there are two contradictory decisions rendered by two Single Benches of the same Court on the same question of law involved. So the following question has to be considered for reference. Whether in view of the dictum laid down in the decision reported in Abraham v. State of Kerala 2000 (3) KLT 163 : 2000 (2) KLJ 310 , the earlier decisions of this Court reported in State of Kerala v. Scariah (1966 KLT 780), Kunhikannan and Others v. Asst. Sub Inspector of Police ( 1985 KLT 484 : 1985 KLJ 462 ), Anthumayi v. State of Kerala ( 1999 (1) KLT 149 : 1999 (1) KLJ 97 ) and Sunil and Others v. State of Kerala and Another 2014 (1) KHC 469 are having any binding effect and which of the dictum laid down is the correct law taking into consideration the presumption available under Section 6 of the Kerala Gaming Act. Place it before the Honourable Chief Justice for making a reference to a larger bench to resolve this question.