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Judgment
D. Murugesan, J.—Saint Thiruvalluvar in 934th couplet of Thirukkural described the evils of gambling as follows:
rpWik gybra;J rPuHpf;Fk; N:jpd;
tWik jUtbjhd;(W),y;
which means
There is nothing else that brings (us) poverty like gambling which causes many a misery and destroys (one''s) reputation.
The writ appeal is directed against the order disposing the writ petition, whereby the learned Judge issued certain directions. The question involved
in the appeal is as to whether the activity of the respondent-Mahalakshmi Cultural Association in allowing its members and guests to play rummy
(13 cards) with stakes is legal and permissible in the eye of law?
The writ appeal arises under the following circumstances. The respondent-Mahalakshmi Cultural Association (hereinafter referred to as ''the
Association'') approached this Court by filing the writ petition seeking for an order forbearing the appellants (hereinafter referred to as ''the Police'')
from interfering in any manner in the activities of the association including playing of 13 cards game like rummy with or without stakes whatever and
also from harassing the members, the guests or the members of the management of the association in any manner. The said writ petition was filed
with the following averments. The Association was formed in the year 1981 and was registered under the Societies Registration Act, 1860 with
certain objects including to offer facilities for indoor games such as table tennis, carrom, chess, cards (not resorting to gambling) and outdoor
games such as badminton, tennis and volleyball. The Association has 49 life members and 235 ordinary members and has its own bye-laws. The
members of the Association and their guests are allowed to play 13 cards, namely, rummy with stakes which, according to the Association, does
not amount to gambling.
On 10.8.2011, the Inspector of Police, R4 Soundara Pandianar Angadi Police Station, T.Nagar, Chennai raided the premises of the
Association on the ground that the premises was used for gambling and the members and guests were indulging in playing rummy with stakes. A
case in Crime No. 1053 of 2011 was registered on the same date against the Association alleging commission of offences under Sections 45 and
46 of the Chennai City Police Act, 1888. According to the Association, even during the year 2002, the Police interfered with their activities by
making similar allegations and the Association filed a writ petition, which was disposed of by this Court with certain directions to the police not to
interfere with the activities of the Association except on specific information or complaint as to any illegal activity. As the interference continued, the
Association filed another writ petition in the year 2004, which was also disposed of by this Court with similar directions apart from appointing an
Advocate Commissioner to inspect the premises of the Association, particularly its card rooms and submit a report. The report confirmed that only
rummy i.e., 13 cards was played by the members of the Association. As the rummy is a game of skill and not a gambling, the Association had
sought for the directions in the writ petition.
The learned Judge, having found that rummy is a game of skill and the Police cannot treat it as an illegal activity, disposed the writ petition with
the following directions:-
(a) The petitioner association shall not indulge in any illegal activity other than playing rummy (13 cards) with stakes by its members and guests;
(b) If there is any evidence of gambling in some other way, the respondent police have a right to enter the premises of the petitioner''s association,
inspect and take further action as per law;
(c) In respect of the FIR registered by the respondent police against those 56 persons and others who were said to have indulged in illegal
gambling activities as per the raid conducted on 10.08.2011, it is open to the respondent police to proceed further as per law and it is for the
petitioner''s association, its members and their guests to defend the same in the manner known to law, as the criminal action was initiated after a
valid raid conducted on 10.8.2011 by the respondent police;
(d) The respondent police are also advised not to disturb the petitioner association frequently under the guise of inspection as it would disturb the
peace harmony of the petitioner association.''
This order is put in issue by the appellants in this writ appeal. The writ petition was occasioned due to the raid conducted on 10.8.2011 and the
consequent registration of the case on the same date. A criminal case was registered against one Thiru Sudhir, S/o Ramakrishna Reddy and 57
others under Sections 45 and 46 of the Chennai City Police Act on the ground that at the time when the raid was conducted in the premises of the
Association, it was found that about 56 persons were playing cards (gambling) for stake from whom 178 tokens were seized and the cash used in
the gambling amounting to Rs. 6,95,000/- was also recovered. It was also found that there were 12 tables and in 8 tables, 5 persons were playing
cards using the tokens issued in lieu of cash for monetary gain. Hence, the said 56 persons were secured along with two others of the Association
on the ground that they indulged in gambling. As we are now called upon to decide as to whether the members of the Association and their guests
would be entitled to play rummy with stakes, the legality of the case registered against the members and the office bearers of the Association need
not be gone into in this writ appeal and the observations made in this order are only for the purpose of disposal of the writ appeal.
Section 3 of the Chennai City Police Act defines the expression ''common gaming house'', ''gaming'' and ''instruments of gaming''. The
expressions ""common gaming house'', ''gaming'' and ''instruments of gaming'' have also been defined on the same lines u/s 3 of the Tamil Nadu
Gaming Act as well. Section 3 of the Chennai City Police Act reads 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 and 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,except wagering or betting on a horse race when such wagering or betting
takes place (i) on the date of which such race is to be run and (ii) in a place or places within the race enclosure which the authority controlling such
race has with the sanction of the State Government set apart for the purpose. For the purpose of this definition, wagering or betting shall be
deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise in respect of any
wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution.
instruments of gaming'' includes any article used or intended to be used as a subject of means of gaming any document used or intended to be used
or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or
otherwise, distributed or intended to be distributed in respect of any gaming.
In terms of the said definition, gaming includes wagering or betting except such wagering or betting on a horse race. Such gaming includes the
playing of cards, be it 3 cards or 13 cards. In the event the gaming of cards is played in a premises, namely, house, room, tent, enclosure, vehicle,
vessel or any place whatsoever, the said place is called a common gaming house. The Apex Court in Kishan Chander Vs. State of Madhya
Pradesh, , while dealing with a criminal appeal filed by the appellant therein, who was convicted u/s 3 of the United State of Gwalior, Indore and
Malwa (Madhya Bharat) Gambling Act Samvat, 2006, while upholding pari materia provisions, held as follows:-
In order to find out whether the impugned provisions can be regarded as unreasonable in the sense explained it is necessary to consider them in
some detail. We begin with the definitions. ""''Gaming"" is defined to include wagering and betting which are the commonest forms of gambling but
the definition leaves room for inclusion in the term otherf orms which gambling might take., There is nothing in the definition to make it unreasonable
or to offend against any of the guaranteed rights. Next comes the definition of ""gaming house"". A house becomes a gaming house if gaming takes
place there or instruments of gaming are kept there or used for gaming. The definition is no doubt wide and there is not only a long list of places
which come within the expression ''gaming house'' but the term includes any place whatsoever which answers the rest of the description. But here
again there is nothing which is unreasonable or which does not subserve the central purpose ""Instruments of gaming"" are next defined to include
articles used or intended to be used as a subject or means of gaming, also documents, registers, records, proceeds of gaming and prize money etc.
The word, ""used or intended to be used as a subject or means of gaming"" outline the circumstances in which the possession of articles becomes
incriminatory under the Act.
In the Chennai City Police Act, the Commissioner of Police, Chennai is vested with the power of administration u/s 5 of the Act. In terms of
Section 7 of the Act, the Commissioner of Police, by virtue of his office, shall be the Executive Magistrate for the purposes of the Code of Criminal
Procedure. A provision to constitute the Police-force for the effective administration is made u/s 9 of the Act. In terms of Section 23, every police
officer shall be considered to be always on duty including a duty to use his best endeavours and ability to prevent offences and public nuisances, to
preserve the peace, apprehend disorderly and suspicious characters, to detect and bring the offenders to justice and similar duties. By that
provision, it shall be lawful for every police officer to enter and inspect any drinking shop, gaming house or other place of resort of loose or
disorderly characters without a warrant for any of the purposes referred to in the said section. This provision is a departure from the general
procedure to obtain a search warrant from the concerned Magistrate to enter into the premises, as it appears that in case of gaming house no
warrant to enter and inspect such house is necessary for the said police officer. u/s 38, the Commissioner may by order in writing authorise any
police officer above the rank of constable with such assistance as may be required to enter and inspect closed place or building licensed u/s 36 of
the Act, where license is required, at any time when it is open for the reception of persons resorting thereto where he has reason to believe that the
place is used contrary to the provisions of the license. That provision applies to unlicensed places as well.
Section 42 relates to the power of such Commissioner by his warrant giving authority to any police officer above the rank of constable to enter
with such assistance as may be found necessary if he has reason to believe that any place is used as a common gaming house. Such warrant also
includes to arrest all the persons found therein and to seize all the instruments of gaming and all monies and securities for money and articles of
value reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein and to search all parts of
such place and also the persons found therein.
For better appreciation of the issue, the following provisions of the Chennai City Police Act are referable.
Cards, dice, etc., found in search under last section to be evidence that place is a common gaming house.--Any cards, dice, gaming table or
cloth board or other instruments of gaming found in any place entered or searched under the provisions of the last preceding section, or on any
person found therein, shall be evidence that such place is used as a common gaming house, and that the person found therein were there present
for the purpose of gaming, although no play was actually seen by the Police Officer or any of his assistants.
Proof of playing for stakes unnecessary.--It shall not be necessary, in order to convict any person of keeping a common gaming house or of
being concerned in the management of any common gaming house, to prove that any person found playing at any game, was playing for any
money, wager, bet or stake.
Penalty for opening, etc., a common gaming house.--Whoever opens, keeps or uses or permits to be used any common gaming house, or
conducts or assists in conducting the business of any common gaming house, or advances or furnishes money for gaming therein, shall be liable on
conviction to fine not exceeding five hundred rupees or imprisonment not exceeding three months, or to both.
Penalty for being found gaming in a common gaming house.--Whoever is found gaming or present for the purpose of gaming in a common
gaming house shall, on conviction, be liable to fine not exceeding two hundred rupees or to imprisonment not exceeding one month; and any person
found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for
the purpose of gaming.
Saving of games of skill.--Nothing in sections 42 to 48 of this Act shall be held to apply to games of mere skill wherever played.
The provision of Section 42 is wider in sense with regard to the power of the police officer to enter into a gaming house and arrest the persons
and seize all instruments found used in the gambling. In fact, Section 43 makes the position further clear that the cards, dice, gaming table or cloth
board or other instruments of gaming found in the place shall be evidence that such place is used as a gaming house and the persons found therein
were present for the purpose of gaming although no play was actually seen by the police. By that provision, all that the police have to ensure as to
whether the cards, dice, gaming table or cloth board are found in the premises as well the persons at the time of raid. By that section, the
presumption in law would be that the place is being used for the purpose of gaming. In terms of Section 44, it shall not be necessary to prove that
any person found playing at any game was playing for any money, wager, bet or stake. Section 45 contemplates a penalty for opening a gaming
house. Section 46 contemplates a penalty for being found gaming in a common gaming house. Nevertheless, an exception has been made in
Section 49, wherein the provisions of Sections 42 to 48 of the Act were made inapplicable to games of mere skill.
In the wake of the above provisions, for an effective administration in prevention of offences and in preserving peace from public nuisances, the
executive Magistrate of the city or the police officer authorised by him is empowered not only to apprehend disorderly and suspicious characters,
but also to detect and bring the offenders to justice. The said provision empowers such police officer even to enter into certain places without there
being a warrant issued by the Courts. However, a balance should be weighed between the above power of the police officer vis-a-vis the right of a
citizen to carry on activities which are not prohibited in law. The power could be exercised in the event of any reliable information received by the
executive Magistrate or the police officer or on reasonable suspicion that a house, room, tent, enclosure, vehicle, vessel or a place is being used for
gaming and such place is considered to be a common gaming house, the police officer can enter the premises and take action in view of the
provisions of Section 23 of the Act. Upon entering into such premises, in the event the police officer comes to know that the place is used only for
certain activities which are not considered to be illegal and consequently not to be an offence to be dealt with under the provisions of Sections 43,
44 and 45, he shall not take any action, as these provisions are excluded by virtue of the provisions of Section 49.
This takes us to the question as to whether rummy (13 cards) is a game of skill or a game of chance? Much reliance is placed by the
Association on the judgment of the Apex Court in State of Andhra Pradesh Vs. K. Satyanarayana and Others, . Before we answer the issue, we
are inclined to consider the circumstances under which the said judgment was rendered by the Apex Court. In that case, the police raided the
premises of a club and found certain persons playing rummy with stakes. Certain money, counters and playing cards were also found on the table.
A case was registered against those persons who were found playing rummy as well as the secretary of the club. The Magistrate who tried the
case convicted all the accused and sentenced them to various fines with imprisonment in default. Being aggrieved by the conviction and sentence,
the accused filed an application for revision before the Sessions Judge, who made a reference to the High Court u/s 438 of the Code of Criminal
Procedure recommending the quashing of the conviction and setting aside the sentences. The recommendation was accepted by the High Court.
Questioning the same, the State preferred SLP before the Apex Court. It was argued before the Apex Court that the club was making profit/gain
from the game of rummy and the place was a gaming house and that the accused had indulged in gambling. After discussing the evidence let in on
behalf of the prosecution, the Apex Court found as follows:
To begin with, there is nothing to show that a fee of 5 points per game was being charged. Only the Sub Inspector (P.W.6) deposes to it but
there is nothing to show what his source of information was. At the time the game was going on, he was not present and when he arrived on the
scene, the game had stopped. The account-books of the club do not show any such levy form the persons and in the absence of any entry, we
cannot hold this fact to be sufficiently proved. As regards the extra charge for playing cards, we may say that clubs usually make an extra charge
for anything they supply to their 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 of 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 makinga
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 tobe paid extra
remuneration by way of overtime and expenditure on light 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.
This leaves over for consideration only the sitting fee as it is called. In this connection, the account books of the club have been produced
before us and they show that a fee of 50 paise is charged per person playing in the card room. This to our opinion is not such a heavy charge in a
Members Club as to be described as an attempt to make a profit or gain for the club. Of course, if it had been proved that 5 points per game were
charged, that might have been considered as an illegal charge sufficient to bring the club within the definition. As we have already pointed out, the
levy of that charge has not been proved. The other charges which the club made do not establish that this was a common gambling house within the
definition.
The Apex Court found that at the time when the Sub Inspector of Police arrived at the premises, the game had stopped and the account books of
the club did not show the levy from persons and in the absence of any entry, the Apex Court found that the charge was not sufficiently proved.
Even as far as the extra charge said to have been paid for playing cards is concerned, the Apex Court found that there was no definite proof that
the club was making a profit or gain. In these circumstances, it was found that such a heavy charge in a members club cannot be described to be
an attempt to make a profit or gain. However, the Apex Court found that ""if it had been proved that 5 points per game were charged, that might
have been considered as an illegal charge sufficient to bring the club within the definition"".
In this context we may also notice that the Apex Court considered the provisions of Section 7 of the Hyderabad Gambling Act relating to
presumption. That section provides that ""when any cards, dice or table or other instruments or means of gambling have been found in any house or
premises or enclosure or open space entered or searched in accordance with the provisions of S.6 or have been found with any of the persons
therein, it shall be evidence, until the contrary is proved, that such house, premises or enclosure or open space is used as a common gaming house
and the persons found therein were prsent for the purpose of gambling although no play was actually witnessed"". Though by virtue of the above
provision a presumption could be drawn, however, on the facts of that case, the Apex Court found that the said presumption was successfully
repelled by the evidence which had been adduced by the prosecution itself. We may also notice that Section 43 of the Chennai City Police Act is
in pari materia with the above provision of the Hyderabad Gambling Act relating to presumption. With these observations, the Apex Court, found
as follows:-
12...The game of rummy is not a game entirely of chance like the ''three card'' game mentioned in the Madras case to which we were referred. The
''three card'' game, which goes under different names such as ''flush'', ''brag'' etc., is a game of pure chance. Rummy on the other hand, requires
certain amount of skill because the fall of the card has to be memorized and the building up of rummy requires considerable skill in holding and
discarding cards. We cannot, therefore, say that the game of rummy is a game of entire chance. It is mainly and preponderantly a game of skill. The
chance in rummy is of the same character as the chance in a deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out
there is an element of chance because the distribution of the cards is not according to any set pattern but is dependent upon how the cards find
their place in the shuffled pack. From this alone, it cannot be said that rummy is a game of chance and there is no skill involved in it.
In fact, at the end of the paragraph, the Apex Court has also held as follows:-
Of course, 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 of
rummy or any other game played for stakes, the offence may be brought home. In this case, these elements are missing and therefore we think that
the High Court was right in accepting the reference as it did.
The above finding of the Apex Court that rummy is a game of skill should be understood in the context it was rendered on the basis of evidence
adduced by the prosecution in that case. A reading of the judgment of the Apex Court appears to us that in the event rummy is played with stakes,
the Police have authority to take action as per the provisions of the Chennai City Police Act even though the game involves a skill and in that event,
the provisions of Section 49 cannot be pressed into service. Though the provision of Section 49 excludes the provisions of Sections 42 to 48 in the
event rummy which is a game of mere skill is played, nevertheless, the said provision must be understood to mean that so long as rummy which is a
game of skill is played without stakes, the penal provisions of Sections 42 to 48 are not applicable. On the other hand, in the wake of the definition
of ""gaming"" u/s 3 of the Act, in the event rummy is played with stakes, it would amount to gambling and in that event Section 49 cannot be pressed
into service.
Though the members of the Association are entitled to play the game of skill i.e., rummy (13 cards), the question still remains as to whether at
the guise of playing rummy with 13 cards, either the members or the guests could be allowed to play the said game with stakes. The term ""gaming
refers to the instances in which the activities are specifically permitted by law. On the other hand, the term ""gambling"" means wagering or betting of
money or something material value on an event with uncertain outcome with primary intent of winning additional money and or material goods.
Gambling can also be understood as an act of playing for stakes in the hope of winning or a game risked for possible money. In the event a game is
played for stakes, it would amount to wagering or betting resulting either in loss or win.
The evil effects of Gambling finds it''s reference even in epics. Shakuni, Duryodhana''s uncle, in Mahabharata, arranges a dice game, playing
against Yudhishtira with loaded dice. Yudhishtira loses all his wealth, then his kingdom. He then even gambled his brothers, himself and finally his
wife into servitude. The jubilant Kauravas insult the Pandavas in their helpless state and even try to disrobe Draupadi in front of the entire Court,
but her honour is saved by Krishna who miraculously creates lengths of cloth to replace the ones being removed.
We may also refer to the observations of the Constitution Bench of the Apex Court with regard to gambling in The State of Bombay Vs.
R.M.D. Chamarbaugwala, wherein the Apex Court held as follows:-
From ancient times seers and law givers of India looked upon gambling as a sinful and pernicious vice and deprecated its practice. Hymn XXXIV
of the Rigveda prclaims the demerit of gambling. Verses 7, 10 and 13 say:
Dice verily are armed with goads and riving hooks, deceiving and tormenting, causing grievous woe. They give frail gifts and then destroy the
man who wins, thickly anointed with the player''s fairest good.
The gambler''s wife is left forlorn and wretched; the mother mourns the son who wanders homeless. In constant fear, in debt, and seeking
riches, he goes by night unto the home of others.
Play not with diece: no, cultivate thy corn-land. Enjoy the gain, and deem that wealth sufficient. Ther are thy cattle, there thy wife, O gambler.
So this good Savitar himself bath told me.
The Mahabharata deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their Kingdom. Manu forbade
gambling altogether. Verse 221 advises the king to exclude from his realm gambling and betting for those two vices cause the destruction of the
kingdom of princes. Verse 224 enjoins upon the king the duty to corporally punish all those persons who either gamble or bet or provide an
opportunity for it. Verse 225 calls upon the king to instantly banish all gamblers from his town. In verse 226 the gamblers are described as secret
thieves who constantly harass the good subject by their forbidden practices. Verse 227 calls gambling a vice causing great enmity and advises wise
men not to practise it even for amusement. The concluding verse 228 provides that on every man who addicts himself to that vice either secretly or
openly the king may inflict punishment according to his discretion. While Manu condemned gambling outright, Yajnavalkya sought to bring it under
State control but he too in verse 202 (2) provided that persons gambling with false dice or other instruments should be branded and punished by
the king. Kautilya also advocated State control of gambling and, as a practical person that he was, was not averse to the State earning some
revenue therefrom. Vrihaspati dealing with gambling in Chapter XXVI, verse 199, recognises that gambling had been totally prohibited by Manu
because it destroyed truth, honesty and wealth, while other lawgivers permitted it when conducted under the control of the State so as to allow the
king a share of every stake. Such was the notion of Hindu lawgivers regarding the vice ofgambling. Hamilton in his Hedaya, Vol.IV, book XLIV,
includes gambling as a kiraheeat orabomination. He says:
It is an abomination to play at chess, dice or any other game; for if anything is staked it is gambling,which is expressly prohibited in the Koran; or if,
on the other hand, nothing be hazarded it is uselessand vain.
It will be abundantly clear from the foregoing observations that the activities which have beencondemned in this country from ancient times appear
to have been equally discouraged and lookedupon with disflavour in England, Scotland, the United States of America and in Australia in the cases
referred to above. We find it difficult to accept the contention that those activities which encourage aspirit of reckless propensity for making easy
gain by lot or chance, which lead to the loss of the hardearned money of the undiscerning and improvident common man and thereby lower his
standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happinessof his humble home could
possibly have been intended by our Constitution makes to be raised to the status of trade, commerce or intercourse and to be made the subject-
matter of a fundamental right guaranteed by Art.19(1)(g). We find it difficult to persuade ourselves that gambling was ever intended to form any
part of this ancient country''s trade, commerce or intercourse to be declared as free under Article 301. It is not our purpose nor is it necessary for
us in deciding this case to attempt anexhaustive definition of the word ""trade"", ""business"" or ""ntercourse"". We are, however, clearly of opinion that
whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are
convinced and satisfied that the realpurpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedomof
gambling. Gambling activities from their very nature and in essence are extra-commercium althoughthe external forms, formalities and instruments of
trade may be employed and they are not protectedeither by Article 19(1)(g) or Article 301 of our Constitution.
In Kishan Chander Vs. State of Madhya Pradesh, while upholding similar provisions empowering the Police to take action, the Apex Court
observed as follows:-
Considering the fact that gambling is an evil and it is rampant, that gaming houses flourish as profitable business and that detection of gambling
is extremely difficult, the law to root out gambling cannot but be in the public interest.....
In Dr. K. R. Lakshmanan Vs. State of Tamil Nadu and another, , while considering the definition of ""gambling"", the Apex Court has observed
as follows:
The new Encyclopaedia Britannica defines gambling as ""The betting or staking of something of value, with consciousness of risk and hope of
gain on the outcome of a game, a contest, or an uncertain event the result of which may be determined by chance or accident or have an
unexpected result by reason of the better''s miscalculations"". According to Black''s Law Dictionary (Sixth Edition) ""gambling involves, not only
chance, but a hope of gaining something beyond the amount played. Gambling consists of consideration, an element of chance and a reward""......
Gambling in a nut-shell is payment of a price for a chance to win a prize. Games may be of chance, or of skill or of skill and chance combined. A
game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are
all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows or can know what it will be until the dice is
thrown, the wheel stops its revolution or the dealer has dealt with the cards. A game of skill, on the other hand - although the element of chance
necessarily cannot be entirely eliminated - is one in which success depends principally upon the superior knowledge, training, attention, experience
and adroitness of the player. Golf, chess and even Rummy are considered to be games of skill. The courts have reasoned that there are few games,
if any, which consist purely of chance or skill, and as such a game of chance is one in which the element of chance predominates over the element
of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is the dominant element - ""skill"" or
chance"" - which determines the character of the game.
The Apex Court in Dr. K. R. Lakshmanan Vs. State of Tamil Nadu and another, held that (i) the competitions where success depends on
substantial degree of skill are not ''gambling'' and (ii) despite there being an element of chance if a game is preponderantly a game of skill it would
nevertheless be a game of ""mere skill"". With that observation, the Apex Court held that the expression ""mere skill"" would mean substantial degree
or preponderance of skill.
Playing of cards perhaps may be for relaxing oneself or for an entertainment provided such play has limitations. Playing of cards with stakes
has two evils i.e., it corrupts the mind of the players to become addict and it makes most of the players bankrupt. Discussions above undoubtedly
point against the practice of indulging in gambling, be it rummy or other similar games, where wagering or betting is involved. We may also refer to
the ordinary use of the expression ""winning"". The word ""winning"" has been given the following meaning in the Universal Dictionary of English
Language, namely, ""Amount won, esp. money won in betting."" In the Oxford English Dictionary, the word ""winning"" is given the following meaning,
namely, ""Things or sums gained, gains, profits, earnings in mod.use chiefly applied to money won by gaming or betting."" In Webster''s Third
International Dictionary, the word ""winning"" is given the following meaning, namely, ""Something one wins esp. the money won by success in
competition."" Therefore, in the event a place is used for gambling, it will be termed to be a gambling house and such gambling would amount to an
illegal activity in the event the member or the guests or the club/association make profit out of such gambling. The object of the Association is also
to allow the members to play cards not amounting to gambling.
We may also refer to yet another aspect as to whether the guests can be also allowed to play rummy. As per the objects of the Association, it
is entitled to entertain members and guests. So long as the guests are allowed to use the association premises for an activity which is not illegal, the
Police has no authority to proceed against them, as the Association would be entitled to allow them to avail the facilities. In the event the guests are
found playing rummy (13 cards) with stakes, they would be also considered as indulging in gambling.
In the present case, at the time the Association premises was raided, the police officers found 56 persons were playing cards for stake and
from whom 178 tokens indicating betting were seized and the cash used in the gambling amounting to Rs. 6,95,000/- was also recovered. It was
also found that 5 persons were playing cards using tokens issued in lieu of cash for monetary gain. This will indicate that they shall be evidence to
show that the premises was used as a common gaming house in terms of Section 43 of the Act and those found in the premises either with tokens
or found playing with tokens should be considered as indulging in gambling.
On the basis of the above discussions, we arrive at the following conclusions:-
(1) The game of rummy (13 cards) is only a game of skill even though an element of chance is also involved.
(2) In the event rummy is played by the members or the guests without stakes, the provisions of the Chennai City Police Act are not attracted.
(3) In the event rummy is played by the members or the guests with stakes, the provisions of the Chennai City Police Act are attracted.
(4) In the event the club/association either allows its members or guests to play rummy with stakes ormake any profit or gain out of such gambling,
the Police has the authority to invoke the provisions ofthe Chennai City Police Act.
(5) In order to ascertain as to whether the premises is used as a gaming house for gambling, the Police isentitled to invoke Section 23 of the Act.
In view of the above, we modify the order of the learned single Judge and dispose of the writ appeal with the following directions:
(1) The respondent-Association shall not indulge in any activity by allowing its members or the guests to play rummy (13 cards) with stakes and
make profit or gain.
(2) The Police are entitled to take action in the event any illegal activity is carried on in the association premises.
(3) In respect of the FIR registered by the Police against those 56 persons and others who were said to have indulged in illegal gambling activity as
per the raid conducted on 10.08.2011, it is open to the Police to proceed further as per law and it is for the Association, its members and their
guests to defend the same in the manner known to law, as the criminal action was initiated after a valid raid conducted on 10.08.2011 by the
Police.
(4) The Police shall not disturb the respondent-Association frequently under the guise of inspection without there being any reliable information as
to the illegal activities of the association or its members or the guests.
Consequently, M.P.No. 1 of 2011 is closed. No costs.