Partly allowed

The Director General of Police v. S.Dillibabu

Madras HC6 Oct 2017WA/296/2013

Case brief

AI extract

What is this about?

The High Court held unsustainable the Single Judge's directions in a writ petition that allowed a club to conduct Rummy with stakes and limited police interference. The Court ruled that Rummy with stakes constitutes gambling, which is not protected under fundamental rights, and police powers to inspect are not barred. The appeal was partly allowed.

What did the court decide?

Directions (a) and (e) of the learned Single Judge's order setting precedent was, while other directions remain unaltered.

The Director General of Police Vs… — Constitutional and Fundamental Rights | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 06.10.2017

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Coram

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THE HONOURABLE Mr. JUSTICE K.K.SASIDHARAN AND

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THE HONOURABLE Mr. JUSTICE P.VELMURUGAN

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W.A.No.296 of 2013

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The Director General of Police,

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Police Head Quarters,

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Chennai-600 005.

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The Commissioner of Police, Greater Chennai,

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Egmore, Chennai-600 008.

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The Joint Commissioner of Police,

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North Range, B1, North Beach Police Station Campus, Rajaji Salai, Chennai - 600 001.

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The Deputy Commissioner of Police,

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Washermenpet Range,

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H1, Washermenpet Police Station Campus,

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Washermenpet, Chennai - 600 021.

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The Assistant Commissioner of Police, Thiruvotttiyur Range,

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H8, Thiruvottiyur Police Station Campus, Thiruvottiyur, Chennai - 600 019.

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The Inspector of Police,

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H5, New Washermentpet Police Station,

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Chennai.

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.. Appellants/Respondents

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Vs.

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S.Dillibabu

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.. Respondent/Petitioner

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Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the order dated 05.03.2012 made in W.P.No.2972 of 2012, on the file of this Court.

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W.P. No 2972/2012:

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Writ of Mandamus, directing the respondents from interdering in any manner in the activities of the petitioners association including playing 13 cards game like rummy with or without stakes whatever and also from harassing the members, the guests

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or the members of the management of the petitioner's association in any manner.

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For Appellants : Mr.V.Anandhamurthy Special Government Pleader

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For Respondent : No appearance Notice served

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J U D G M E N T

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[Judgment of the Court was made by P.VELMURUGAN, J.]

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The writ appeal is arising out of the judgment dated 05.03.2012 made in W.P.No.2972 of 2012, on the file of this Court.

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Facts culled out in brief for the disposal of the writ appeal are as follows:-

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The petitioner is the member of an Association called "Friends Five Star Recreation & Sports Club", which is a registered body functioning in T.H.Road, Tolgate, Chennai – 600 081. The said association is registered under the Registrar of Society, North Chennai on 05.12.2011 vide Serial No.475 of 2011. Though they have been functioning for the past few years, it got legalized only in the year 2011 and started functioning legally since 18.01.2012. It has got various objectives and conduct various programmes to promote sports, both indoor and outdoor games among the members. The members are from various professions, Government servants and businessmen. The association has their own bye-laws and conducting their activities as per the bye-laws. The members do come and avail the facilities being offered by the Club, like playing cards. But they do not encourage gambling. There is no nuisance nor any disturbance and there has been no complaints received from any quarters by the respondent police. No case has been registered against any member of the association so far. While so, under the guise of inspection, the respondent police is visiting the club every now and then, disturbing the smooth functioning of the club and thereby the normal conduct and business of the club is affected and the members of the club are put to lot of inconveniences and disturbances. The members do face constant threats from the respondent Police. Representations given in person and through letters are in vain. Hence, the writ petition has been filed.

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After considering the facts and circumstances of the case and the arguments advanced by the learned counsel on either side and by citing his own judgment dated 04.11.2011 made in W.P.No.21620 of 2011, the learned Single Judge has disposed the Writ Petition with the following directions:-

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a)The petitioner association shall not indulge in any illegal activity other than playing Rummy (13 cards) with stakes by its members and guests;

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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;

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c)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.

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d)The petitioner and the members of the petitioner Club are entitled to carry on lawful activities within their premises and there should not be any interference from the police authorities, so long as their activities are not in violation of the provisions of the Public Gambling Act, 1867/Tamil Nadu Gaming Act, 1930;

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e)In the normal circumstances, there should be no interference in the lawful functioning of the Clubs, by the Police. It is not permissible for the police to enter the Club premises as a routine measure, so long as the Clubs are functioning within the frame work of law;

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f)If the police authorities have specific information or reasonable doubt that the activities carried on by the Club or its members are not in accordance with law or they indulge in unlawful activities, in violation of the provisions of the Public Gambling Act, 1867/Tamil Nadu Gaming Act, 1930 or any other enactment, it would be open to them, after recording reasons in the General Diary maintained in the Police Station, to proceed to enter the Club premises, conduct investigation, interrogate those who involve themselves in such activities and take appropriate action on merits and as per law;

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g)While exercising the powers conferred on the Police authorities, they should follow the mandatory provision as contained in Section 5 of the Tamil Nadu Gaming Act, 1930 / Public Gambling Act, 1867;

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h)It is always open to the Club or its members to challenge the action taken by the Police, if it is not in accordance with law;

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i)In case the Police authorities are of the

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opinion that a situation has arisen to suspend the operation of the Club in exercise of the powers conferred, they have to issue an order in writing. When there is no authority to the Police to issue an order of suspension orally, they are not entitled to pass such oral orders; and

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j)Before passing orders for the purpose of closure of the Club, in exercise of the powers conferred on the authorities, they should follow the principles of natural justice. The Club should be given an opportunity to submit their objections and if so desired, a further opportunity of personal hearing should also be given."

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Aggrieved against the order of the learned Single Judge, the appellants / respondents have filed the present Writ Appeal.

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The learned Special Government Pleader appearing for the appellants / respondents would submit that the learned Single Judge has passed the following directions in paragraph No.11 (a) & (e) as under:-

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"(a)The petitioner association shall not indulge in any illegal activity other than playing Rummy (13 cards) with stakes by its members and guests;

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(e) In the normal circumstances, there should be no interference in the lawful functioning of the Clubs, by the Police. It is not permissible for the police to enter the Club premises as a routine measure, so long as the Clubs are functioning within the frame work of law"

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Thereby held that playing rummy with stakes cannot be interfered and the learned Special Government Pleader would submit that the stake involved in playing the game of rummy amounts to gambling. The learned Special Government Pleader would further submit that the learned Judge failed to take into consideration the judgment reported in 1968 Criminal Law journal 1009, wherein it has been stated that "of course, if there is evidence of gambling in some other way or that the owner or the house or the club is making profit or gain from the game of rummy or any other game played for stakes, the offence may be brought home". The learned Special Government would further submit that the learned Single Judge relying on his own judgment dated 04.11.2011 in W.P.No.21620 of 2011, disposed of the Writ Petition and the said writ petition in W.P.No.21620 of 2011, which was referred by the learned Single Judge, was subsequently modified by the Hon'ble

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Division Bench of this Court in W.A.No.2287 of 2011, by an order dated 22.03.2012. The learned Special Government Pleader would further submit that the learned Single Judge failed to see that only on inspection based on telephonic complaints or from information from other sources inspections are done in the premises to stop gambling and hence, the directions issued in paragraph 11 (a) & (e) is unsustainable. The learned Special Government Pleader would further submit that the order passed by the learned Single Judge is contrary to the law laid down by the Hon'ble Supreme Court in the Constitution Bench Judgment in State of Bomaby vs. R.M.D. Chamarbagwala [AIR 1957 SC 699]. Hence, the learned Special Government Pleader prays for allowing this appeal.

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There is no representation for the respondent / petitioner. Heard Mr.V.Anandhamurthy, learned Special Government Pleader appearing for the appellants / respondents and perused the materials placed on record.

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Though all the directions (a) to (j) are under challenge in this Writ Appeal, the learned Special Government pleader has confined his arguments only with regard to directions (a) & (e). During the argument, it is the contention of the learned Special Government Pleader that with regard to direction No.(a) viz., The petitioner association shall not indulge in any illegal activity other than playing Rummy (13 cards) with stakes by its members and guests; and as per the said direction, the respondent association can play the rummy with stakes and it amounts to gambling. As regards direction (e) viz., In the normal circumstances, there should be no interference in the lawful functioning of the Clubs, by the Police. It is not permissible for the police to enter the Club premises as a routine measure, so long as the Clubs are functioning within the frame work of law", the learned Special Government Pleader would submit that the respondent-Association by showing the order passed by the learned Single Judge, the respondent/writ petitioner cannot prevent the Police Personnel in performing their lawful duty. It is his further contention that the playing rummy is not an offence, however playing rummy to make money for gambling is an offence.

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We find much force in the contention of the learned Special Government Pleader that the respondent-Association by virtue of the order of the learned Single Judge cannot prevent the Police Personnel to do their lawful duty. Therefore, the order passed by the learned Single Judge with regard to directions (a) & (e) are unsustainable.

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The other submission of the learned Special Government Pleader is that the stake involved in playing the game of rummy amounts to gambling. In this regard, it is pertinent to quote the Judgment of Constitution Bench of the Hon'ble Supreme Court with regard to gambling in State of Bomaby vs. R.M.D. Chamarbagwala [AIR 1957 SC 699], wherein the Hon'ble Apex Court held as follows:-

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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 proclaims the demerit of gambling. Verses 7, 10 and 13 say:

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“7. Dice verily are armed with goads and driving 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.

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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.

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Play not with dice: no, cultivate thy corn-land. Enjoy the gain, and deem that wealth sufficient. There are thy cattle, there thy wife, O gambler. So this good Savitar himself hath told me.”

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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 subjects by their forbidden practices. Verse 227 calls gambling a vice causing great enmity and advises wise men not to practice it even for amusement. The concluding verse

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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 law givers 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 law givers regarding the vice of gambling. Hamilton in his Hedaya Vol. IV, book XLIV, includes gambling as a kiraheeat or abomination. He says:

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“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 useless and vain”.

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It will be abundantly clear from the foregoing observations that the activities which have been condemned in this country from ancient times appear to have been equally discouraged and looked upon with disfavour 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 a spirit of recklesss propensity for making easy gain by lot or chance, which lead to the loss of the hard earned 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 happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Article 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

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purpose nor is it necessary for us in deciding this case to attempt an exhaustive definition of the word “trade”, “business”, or “intercourse”. 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 real purpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra-commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution."

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Further, in the concluding paragraph No.46, the Hon'ble Supreme Court has held as follows:-

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"46. For the reasons stated above, we have come to the conclusion that the impugned law is a law with respect to betting and gambling under Entry 34 and the impugned taxing section is a law with respect to tax on betting and gambling under Entry 62 and that it was within the legislative competence of the State Legislature to have enacted it. There is sufficient territorial nexus to entitle the State Legislature to collect the tax from the petitioners who carry on the prize competitions through the medium of a newspaper printed and published outside the State of Bombay. The prize competitions being of a gambling nature, they cannot be regarded as trade or commerce and as such the petitioners cannot claim any fundamental right under Article 19(1)(g) in respect of such competitions, nor are they entitled to the protection of Article 301. The result, therefore, is that this appeal must be allowed and the orders of the lower courts set aside and the petitions dismissed and we do so with costs throughout. The state will get only one set of costs of hearing of this and Appeals Nos. 135, 136, & 187 of 1956 throughout."

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The Constitution Bench of the Hon'ble Supreme Court of India has categorically held in the aforesaid judgment that the prize competitions being of a gambling nature, they cannot be regarded as trade or commerce and as such, the respondent / petitioner cannot claim as fundamental right under Article 19(1)(g) in respect of such competitions, or they are entitled to the protection under Article 301.

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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. Further, in

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view of the Judgment of Constitution Bench of the Hon'ble Supreme Court in State of Bomaby vs. R.M.D. Chamarbagwala , (referred supra) and the reasons mentioned above, we are of the considered view that the order passed by the learned Single Judge insofar as the directions (a) & (e), are not sustainable and the same are set-aside and the other directions given by the learned Single Judge remain unaltered.

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With the above observation, the Writ Appeal is partly allowed. There is no order as to costs.

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s/d-
Assistant Registrar(CS-III)
True Copy
Sub-Assistant Registrar
r n s
To
1. The Director General of Police,
Police Head Quarters,
Chennai-600 005.
2. The Commissioner of Police,
Greater Chennai,
Egmore, Chennai-600 008.
3. The Joint Commissioner of Police,
North Range, B1, North Beach Police Station Campus,
Rajaji Salai, Chennai - 600 001.
4. The Deputy Commissioner of Police,
Washermenpet Range,
H1, Washermenpet Police Station Campus,
Washermenpet, Chennai - 600 021.
5. The Assistant Commissioner of Police,
Thiruvotttiyur Range,
H8, Thiruvottiyur Police Station Campus,
Thiruvottiyur, Chennai - 600 019.
6. The Inspector of Police,
H5, New Washermentpet Police Station,
Chennai.
+1 Cc to Govt. Pleader sr 72106.
W.A.No.296 of 2013

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RV(CO) SP(14/11/2017)

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The Director General of Police v. S.Dillibabu

Case brief

What is this about?

What did the court decide?

The Director General of Police v. S.Dillibabu

Case brief

What is this about?

What did the court decide?

What the court decided

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