JUDGMENT (Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records in Crime No.434 of 2021 dated 23.08.2021 on the file of the respondent police and quash the same by allowing this Criminal Original Petition.) 1. This petition has been filed to quash the FIR in Crime No. 434 of 2021, registered by the respondent police for the offences under Sections 8, 9 of the Tamil Nadu Gaming Act, 1930 as against the petitioners. 2. The case of the prosecution is that on 23.08.2021 when the respondent police on his routine patrol in Salem city, on information he went to the Literary Society Club and found that the petitioners herein were playing the game of rummy in playing cards for gain. Therefore, the respondent registered the above said case as against the petitioners. 3. Heard Mr.R.Marudhachalamurthy, learned counsel appearing for the petitioners and Mr.A.Gopinath, learned Government Advocate (Crl. Side) appearing for the respondent. 4. It is seen that the petitioners are arrayed as A1 to A6 in Crime No.434 of 2021 registered offences under Sections 8, 9 of the Tamil Nadu Gaming Act, 1930. The Literary Society Club (herein after referred to as “the Society”) has been establishment in the year 1871 and it was duly registered on 06.06.1890 under Rule 8 of the Tamil Nadu Registration Rules 1978 and certificate of registration was issued by invoking Section 10 of the Tamil Nadu Act, 27 of 1975. It is functioning for welfare and wellbeing of the members of the Society. There are number of social welfare activity done by the said Society. Further the Society is functioning as per its Byelaw and concern Act and Rule. The object of the Society is as follows :- a) To develop the intellectual, social, cultural, physical and general advancement of the community. b) to organize, lectures, seminars, symposia, conference and such other program. c) to subscribe to the leading journals, periodicals and daily news papers in English and in Tamil languages. d) to maintain book banks and library for the benefits of the members. e) to arrange for the social gathering for discussion on the current matters of need of the community. f) to conduct tournaments in Tennis, Badminton, Billiards, Chess, Playing Cards, Carom and other indoor games and to encourage the players in these games. d) to maintain book banks and library for the benefits of the members. e) to arrange for the social gathering for discussion on the current matters of need of the community. f) to conduct tournaments in Tennis, Badminton, Billiards, Chess, Playing Cards, Carom and other indoor games and to encourage the players in these games. g) to arrange for the members to pay games in cards like Rummy, Bridge, Whist and Canasta for entertainment to improve mental agility and not for monetary benefits. h) to help the poor students to further their stadies. i) public discussions on politics and theology shall not be permitted by the society. 5. Further all the petitioners are the members of the said Society. The Tamil Nadu Gaming Act is different from the Bombay Prevention of Gambling Act, 1887. The object of the Tamil Nadu Gaming Act is to restrict running of common gaming house, whereas Bombay Act restricts gambling. However, the respondent registered the FIR against the petitioners for the offences under Sections 8 & 9 of the Tamil Nadu Gaming Act, alleging that the petitioners were playing the game of Rummy in playing cards for gain. 6. The Tamil Nadu Gaming Act is very clear that profit or gain is the primordial requisite for running a common gaming house. Unless and until the prosecution proves foundational facts that there was profit or gain by the owner or occupies of the place, the same would not come under the definition of common gaming house. In the case on hand, no piece of evidence about that the owner or occupier of the place profited or gained by running a common gaming house. Further the Tamil Nadu Gaming Act is not at all applicable to the city of Salem in view of the Act 2 of 2014 amended the provision of Section 2 of Chennai City Police (Extension to the City of Salem, Trichirappalli and Thirunelveli) Act, 1997. 7. This Court in the batch of case in Crl.O.P.(MD)No.21065 of 2018 etc., in the issue of common gaming houses, by an order dated 29.11.2019 held as follows :- “(i) In all the cases, the respective respondents made search and found that the accused persons were playing cards in the Club, which is duly registered under the Tamil Nadu Societies and Registration Act, 1975. Under the Tamil Nadu Gaming Act, 1930, “the “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; 'gaming' does not include a lottery but includes wagering or betting. (ii) The game of playing cards 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 under the Act. It is also very clear that profit or gain is the primordial requisite for running a common gaming house. Unless and until the prosecution proves that there was profit or gain by the owner or occupier of the place, the same would not come under the definition of common gaming house. (iii) Mr.Abudukumar Rajarathinam, the learned counsel for the petitioners in Crl.O.P.(MD) Nos.21065 of 2018 and 323 of 2019 took much pain to explain the definition of common gaming house and relied upon the judgment reported in 1983 LW Crl. 183 - Sundaram and Others Vs. The State of Sub Inspector of Police, Kovilpatti police station, wherein, it has been held as follows: “8. In a number of cases, it has been held that the running of a common gaming house is a primordial requisite before anyone can be convicted under sec.8 or 9 of the act, as a early as in santhanam iyengar vs state, Ramaswamy, J. has pointed out 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 Gaming Act or its local variants . The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of S.8 nor of S. 12, is not an offence under the Act” 9. The Act nowhere penalises gambling as such. Therefore, gambling in a private house, being neither within the ambit of S.8 nor of S. 12, is not an offence under the Act” 9. Again in C.R.Subramaniam and others In re, Natesan, J., has pointed out that: “The cardinal constituent for an offence under sec.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 (City Police) Act. Profit or gain to the persons owning, occupying, using, 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 S.45 and S.46 of the Act. What is prohibited is not game of cards for stakes, but playing the game in a common gaming house” 10. I myself had consider this question in Padmanabhan, etc. vs State and I have held as follows:- “Having regard to the standing of the Club in the present case and its activities and the strata of society from which its office bearers are drawn, it Is very doubtful if the club would have been used as a common gaming house. As I have stated at the outset, the mere playing of cards for stakes will not make the club a common gaming house as envisaged under the gaming Act or the City police Act. It is rather unfortunate that law enforcing agencies have still not realized the market difference between the play of games in a club or house and gaming activities carried on in a common gaming house. This lack of understanding often leads to harrasing prosecutions and needless embarrassments.” 11. Still later, Sathar sayeed, J., had to consider this question on Arumugham etc., Vs state. The Learned Judge ordered the quashing of the proceedings against the petitioners in that case and hels as follows;- “ In the charge-sheet filed by the police, I do not find any allegation that the petitioners, who are the members of the club, were playing for commercialisation purposes nor there are any such allegations so as to come within the purview of Ss.8 and 9 of the Gaming Act. There is not even a whisper in the charge-sheet that the Indian officers' club is gaming house or fir that matter, any money was collected or that the premises was used for profit or gain. The charge- sheet taken on its face value, I am of the view, does not come within the purview of Sec.8 and 9 of the Gaming act.” 12. In Spite of the legal position being well settled, the police authorities, particularly the lower strata of officers seem to be completely unaware of the provisions of law. It is not known whether their ignorance of the correct legal position is on account os lack of proper instructions or due to a wanton attitude to flout the law. On this ground alone, the proceedings pending before the court below deserve to be quashed. But something more has to be said in the case.” (iv) He also cited the judgment reported in 2006(2) MLJ (Crl.) 78 - Peer Appa V. Inspector of Police, Tankasi, Tirunelveli District, wherein, it has been held as follows: “5. .................... Admittedly, the respondentpolice, on information received, has visited the club at 2.00 p.m on 26.10.2005. It has been repeatedly held by the Supreme Court and by this Court that when a Police Officer visits a club of similar nature, he must appreciate the information received and must approach the nearest learned Magistrate to obtain a search warrant in this regard. In the instant case, though the respondent has visited the club during day time and when there is every possibility of getting such warrant, it has not been obtained. Admittedly, the petitioner and others are members of a club. In a case reported in Raman Nair and others v. State 1990(2) MWN(Cr)HC 195, it has been held as follows: "7.…….To decide a question whether a club, where gaming in cards is carried on, is a gaming house or not, the relevant consideration is not whether any member of the club makes a profit but whether the club, as a person, occupying or using or keeping the house or room makes a profit. The fact that the police recovered huge sum of money on the table on the date in question is not sufficient to throw any light as to the club or the Secretary of the club deriving anything from out of the money available on the table at the relevant time. The fact that the police recovered huge sum of money on the table on the date in question is not sufficient to throw any light as to the club or the Secretary of the club deriving anything from out of the money available on the table at the relevant time. The fact that the members playing cards make a profit is not at all a criterion to decide the question of the premises being used as a gaming house. The huge amount, available on the table at the relevant time, may be going to the pockets of the members playing the game of cards. As already indicated, that is not sufficient to consider the premises of the club a gaming house under Section 3 of the Act. Once the premises is not proved to be a gaming house, it goes without saying that the petitioners cannot be stated to have committed the offences under Sections 8 and 9 of the Act." It has been repeatedly held that running of a common gaming house is a primordial requisite before a person could be convicted for offence under Sections 8 and 9 of the Act and gaming is not an offence perse. Even assuming that the allegations putforth by the prosecution is true, it cannot constitute an offence as alleged. Even if the prosecution is allowed to continue, in view of the facts and circumstance of the case, it would be a futile exercise and there is no scope for conviction.”. (v) He also cited the judgment reported in 2018 5 L.W. 554 - Kalaiselvan and others Vs. State rep. by the Inspector of Police and another, wherein, this Court has held as follows: “10. It has been repeatedly held that running of a common gaming house is a primordial requisite before a person could be convicted for an offence under Sections 8 and 9 of the Act and gaming is not an offence per se. Even assuming that the allegations putforth by the prosecution is true, it cannot be constituted an offence as alleged by the prosecution. In these circumstances, even if the prosecution is allowed to continue, in view of the facts and circumstance of the case, it would be a futile exercise and there is no scope for conviction. Even assuming that the allegations putforth by the prosecution is true, it cannot be constituted an offence as alleged by the prosecution. In these circumstances, even if the prosecution is allowed to continue, in view of the facts and circumstance of the case, it would be a futile exercise and there is no scope for conviction. Therefore, the materials collected in support of the charges do not disclose the commission of any of the offence or make out a case against the petitioners/accused and as such, the entire criminal proceedings cannot be sustained. 11. Further, in this case, there is absolutely no mention in the report about anybody running a common gaming house. There is no mention about the first petitioner permitting the use of the premises for gaming activities with a view to derive profit or gain for himself. Therefore, the place in which the petitioners played in 'vettu cheetu' and recovered huge sum by the respondents is not a common gaming house. Time and again, this Court has pointed out that gaming is not an offence per se but it is 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, the 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 harass the innocent. ...........” (vi) In the case on hand, admittedly, the respondents recovered money on the table and it is not sufficient to throw any light as to the club or the secretary of the club deriving anything from out of the money available on the table at the relevant point of time. The members playing cards making profit is not at all a criterion to decide the question of the premises being used as gaming house. Therefore, it is not sufficient to consider the premises of the club is a common gaming house as defined under Section 3 of the Act. Therefore, the petitioners in all the petitions cannot be stated to have committed the offences under Sections 8 and 9 of the Tamil Nadu Gaming Act. Point No.2 is decided accordingly” The above judgment is squarely applicable to the case on hand. Therefore, the petitioners in all the petitions cannot be stated to have committed the offences under Sections 8 and 9 of the Tamil Nadu Gaming Act. Point No.2 is decided accordingly” The above judgment is squarely applicable to the case on hand. Hence, the present FIR cannot be sustained as against the petitioners and liable to be quashed. 8. Accordingly, the Criminal Original Petition stands allowed and the FIR in Crime No. 434 of 2021 on the file of the respondent police is hereby quashed. Consequently, connected miscellaneous petition is closed.