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The Tenali National Club Vs. the Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 2212 of 1972 and W.P.M.P. No. 3228 of 1972
Judge
Reported inAIR1975AP297
ActsAndhra Pradesh (Andhra Area) Gaming Act, 1930 - Sections 5, 5(1), 9, 11A and 13; Constitution of India - Article 14
AppellantThe Tenali National Club
RespondentThe Government of Andhra Pradesh and ors.
Appellant AdvocateR. Vasudevapillai and ;T.P. Sastry, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Excerpt:
.....is that sub-section (1), which empowers both salaried magistrates as well as police officers to issue warrants to any police officer not below the rank of a. sub-inspector to make searches and seizures of gaming houses, is hit by article 14. magistrates, who discharge their functions in a judicial manner and police officers whose function is to conduct executive duties like maintaining law and order are poles apart. however, since quite a good deal of debate has taken place before us on that aspect, we will briefly consider it. 5 (1). we fail to see what is unreasonable about insisting on a police officer not below the rank of sub-inspector of police being permitted through a warrant to search a place. that is why the search that is permitted under section 5 is circumscribed by very..........is that sub-section (1), which empowers both salaried magistrates as well as police officers to issue warrants to any police officer not below the rank of a. sub-inspector to make searches and seizures of gaming houses, is hit by article 14. magistrates, who discharge their functions in a judicial manner and police officers whose function is to conduct executive duties like maintaining law and order are poles apart. by no stretch of imagination could they be placed in the same class or category. placing both such officers, who discharge totally different functions from different perspectives, in the same category is wholly repugnant to the principle and policy of article 14. further, there are no guidelines in it stating as to who should exercise the powers of issuing the warrants in.....
Judgment:

A. Sambasiva Rao, Actg. C.J.

1. The constitutionality of Section 5 of the Andhra Pradesh (Andhra Area) Gaming Act, 1930 hereinafter called the 'Act' is challenged in this writ (petition on the ground that it offends Article 14 of the Constitution.

2. The petitioner is a Club represented by its Secretary. The State Government, the Deputy Superintendent of Police, Inspector of Police and Sub-Inspector of Police are respondents 1 to 4 respectively. The 2nd respondent aided by his subordinates raided the club in the midnight of 5th May 1972, entered the Card rooms made a search and seized cash, playing cards and tokens under a mediatornama. On the next day the 4th respondent filed a charge-sheet against some of the members including the Secretary under Sections 8 and 9 of the Act in C. C. Nog. 301 to 305 of 1972 before the Judicial Second Class Magistrate's court, Tenali. This writ petition has been filed challenging this raid. The trial of the criminal cases has been stayed by this court pending the writ petition. The principal relief's sought by the petitioner are (1) to declare that Sections 5 and 13 of the Act are ultra vires of the Constitution and (2) to restrain the respondents from carrying out any further search, seizure or arrest and from interfering with the lawful activities of the petitioner Club. The respondents in their counter save a detailed description of what happened before and at the time of the raid and denied that Sections 5 and 13 are ultra vires. They asserted that when an activity comes within the mischief of the Act, they had every right to carry out searches, seizures, arrests etc. as permitted therein.

3. Sri Vasudevapillai in his arguments before us has not questioned the validity of Section 13. He has concentrated all his criticism against Sub-section (1) of Section 5. His principal point is that Sub-section (1), which empowers both salaried Magistrates as well as Police Officers to issue warrants to any Police Officer not below the rank of a. Sub-Inspector to make searches and seizures of gaming houses, is hit by Article 14. Magistrates, who discharge their functions in a judicial manner and Police Officers whose function is to conduct executive duties like maintaining law and order are poles apart. By no stretch of imagination could they be placed in the same class or category. Placing both such officers, who discharge totally different functions from different perspectives, in the same category is wholly repugnant to the principle and policy of Article 14. Further, there are no guidelines in it stating as to who should exercise the powers of issuing the warrants in what circumstances. Thus, the power delegated to the officers is un-canalized and excessive. The whole scheme of Sub-section (1) is basically unreasonable. He has further submitted that Sub-section (1) has been very inartistically worded leaving scope for any amount of ambiguity. When the provision is shrouded in ambiguity, it should be so construed as to safeguard the right of citizens as against arbitrary action of the State. To further strengthen his argument in this connection, he has referred to the presumption contained in Section 9 that any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming. When subsection (1) of Section 5 is read and enforced in the light of this presumption, it would result in conferring arbitrary powers on the authority which gives the warrant or the officer who conducts the raid. Learned counsel has very much emphasized on the provision in Section 11-A which enables the Magistrate, who tries the case, to direct any portion of the fine levied under the provisions of the Act not exceeding one-half to be paid to informants and police officers as may have assisted in the detection of the offender. Thus the police officers have an inducement and it is positively unjust and unreasonable to entrust them with the responsibility of issuing such warrants. This is how Section 5 (1) has been assailed before us.

4. But all this attack on Section 5 (1) would appear to be futile in this case since no warrant was in fact issued by anybody for conducting the search of the petitioner club. On the other hand, the search was made by the 2nd respondent, who is Deputy Superintendent of Police, in exercise of his powers under sub-section (2) of Section 5 which enables any Police Officer having power to issue a warrant under Sub-section (1) to himself exercise all or any of the powers exercisable under such warrants without issuing a warrant. It is common ground that the 2nd respondent conducted the raid in exercise of this power. Strictly speaking, therefore, the constitutional questions raised by Sri Vasudevapillai do not arise in this case. However, since quite a good deal of debate has taken place before us on that aspect, we will briefly consider it.

5. We will first consider the reasonableness of S. 5 (1). We fail to see what is unreasonable about insisting on a police officer not below the rank of Sub-Inspector of Police being permitted through a warrant to search a place. Ours is a democratic society; every citizen and association of citizens has right of privacy. If that privacy were to be invaded indiscriminately, then there would be an end of all democratic way of life and the rule of the law. It is, however, true that no citizen or association of persons can, under the guise of privacy, do something illegal or unlawful. Even when that is suspected, an officer of the police cannot straightway walk into the place, make a raid and search. For instance, gaming which includes wagering or betting to the extent it is defined in the Act is forbidden by it. Simply because a police officer thinks that some gaming is going on in a place, he cannot make a search of it. When a person's private life is sought to be interfered with, it should be done with a sense of responsibility. That is why the search that is permitted Under Section 5 is circumscribed by very many limitations and precautions, which are clearly intended to safeguard the interests of the citizen. If any search is to be conducted straightway by a police officer, he should not be below the rank of a Deputy Superintendent of Police. Such an officer is certainly an experienced and responsible person. He can either issue a warrant or conduct the search by himself. But then he cannot do either indiscriminately. He must have reason to believe that the place which is permitted to be searched is used as a common gaming house. Further the police officer authorised to make the search should not be below the rank of a Sub-Inspector. Section 5 thus regulates the power of search which necessarily interferes with the personal life of an individual or the affairs Of an institution. This power is particularly conferred on the police, because in the system of administration they are entrusted with the responsible task of maintenance of law and order. Certainly, gaming, to the extent it is forbidden by the Act, becomes a problem of law and order and consequently it is one of the basic functions of the police to see that the law is not broken, by placing the power of issuing a warrant in a Magistrate. Section 5 takes equal care to see that the life of an individual is not easily interfered with. The Magistrate, who is authorised to issue a warrant, should not be an honorary one. He is required to be a salaried Magistrate. Further he should not be inferior to a Magistrate of the Second Class. So, only a Magistrate of certain status is conferred with this power of issuing warrants. Even he cannot straightway issue a warrant; he also must have reason to believe that a place is being used as a common gaming house. These circumstances clearly establish that instead of Section 5 being unreasonable, it is very much reasonable.

6. Nor do we see any illegal or unreasonable classification by authorizing both salaried Magistrate not inferior to a Magistrate of the Second Class and Police Officers not below the rank of a Deputy Superintendent of Police to issue a warrant. The criticism is that officers holding two different types of posts and discharging different types of functions are placed in the same class. A police officer discharges executive functions while a Magistrate discharges judicial functions. In other words, what a police officer complains of, the Magistrate tries and decides. So, the learned counsel argues that putting both of them in the same category is arbitrary and offends Article 14.

7. This argument is founded on a misconception. The anxiety of using the power of search in a highly responsible way is writ large in Section 5. That is why Magistrates and Police Officers not below a particular rank, that too when they have reason to believe that a place is being used as a common gaming house, are authorised to issue warrant of search. Time and again we come across cases where Magistrates are authorised to issue such warrants. But supposing a place is being used as a common gaming house in a place where there is no Magistrate, when the gaming is going on the police cannot detect it unless they make a surprise raid. It would certainly take time for them to go to the place where an officer of the rank described in Sub-section (1) of Section 5 lives and get a warrant from him. Therefore, the Legislature patently thought that in addition to a Magistrate of a particular rank, a police officer not below the rank of a Deputy Superintendent should also have the power to issue a warrant or to make the search himself. It is well to recall once again that it is the special responsibility of the Police to maintain law and order. So, they must attend immediately to any threatened invasion of the law. Therefore, along with Magistrates, Police Officers of high ranks are also empowered to issue warrants. Moreover, Magistrates also are entrusted, by law, with the task of implementing and enforcing law. It is, therefore, difficult and even impossible to hold that an arbitrary classification is made by authorising both Magistrates and Police Officers to issue warrants of search.

8. Learned counsel has then pointed out that Section 5 is bad in another way, in the way in which it leaves lacuna in not providing any guidelines as to in what circumstances Magistrates should issue warrants and in what circumstances Police Officers should issue them. In the absence of these guidelines, he calls the delegation of the power excessive and uncanalized. In these circumstances, certain latitude should be given to the officers who are charged with the duty of maintaining law and order. It would be difficult and may even result in defeating the very purpose of the law if strict rules are laid down in the statute as to when a Magistrate should issue a warrant and when a Police Officer can do it. The Legislature manifestly left it to the requirements or the exigencies of situation. It is also unwarranted to say that the delegation of power is excessive or uncanalized. The Magistrate as well as the Police Officer, who are authorised to issue warrants, should belong to a rank prescribed in the section. Further, they should have reason to believe that the place is used as a common gaming house. The person they authorise should not be below the rank of a Sub-Inspector. Sufficient guidelines are thus fixed in Section 5 (1) for exercise of the power created therein. The presumption in Section 9 has also been invoked to support this argument of uncanalized power. The presumption is that any person found in any common gaming (house) or playing therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming. This presumption has nothing to do with the issuance of a warrant. This presumption arises only when the matter comes up for trial before a court of law and it relates to burden of proof. It has nothing to do with the manner in which a warrant is issued and has no impact on the validity of Section 5 (1).

9. The last contention in this behalf is that it is unreasonable and illegal to authorise a Police Officer to issue a warrant, when Under Section 11-A there is an inducement provided to him. The apprehension of the learned counsel is that when there is such an inducement, Police Officers fall a prey to it and issue unjustified warrants and consequently it is dangerous to retain the power of issuing warrants in Police Officers. This argument is, in our opinion, wholly misconceived. Section 11-A was introduced in the year 1950 and deals with payment of a portion of fine to informants and Police Officers. It empowers the Magistrate, who has tried a case of gaming, to direct any portion, not exceeding one-half, of any fine which shall be levied Under Sections 4, 8 or 9 and of the moneys or proceeds of articles seized and ordered to be forfeited Under Section 10 to be paid to such informants and Police Officers as may have assisted in the detection of the offender. Such a direction may be given even by a Court of Appeal, reference or revision. Sub-section (3) thereof takes the precaution that the amount shall not be sent to the District Superintendent of Police for distribution until the expiry of three months from the date of the direction under Sub-section (1) or if an appeal is presented within that period until the appeal is disposed of. It is thus very clear that the payment postulated by Section 11-A arises out of and after conviction. Secondly, the payment is not intended to be made to any Police Officer who has issued a warrant of search. It is specifically intended only to informants and Police Officers as may have assisted in the detection of the offender. We fail to see how such payment would be an inducement to a Police Officer of a high rank who issues a warrant. A Police Officer, who issues a warrant, could, by no stretch of imagination, be called an informant or a Police Officer who has assisted in the detection of the offender. Section 5 clearly says a warrant can be issued only when there is reason to believe that a place is used as a common gaming house. So, the officer, who issues the warrant, does not come within the ambit of the officer who has assisted in the detection. Thus there is no inducement to such officers who issue warrants.

10. We find no substance in any of the arguments advanced by the learned counsel for the petitioner challenging the validity of Section 5 (1). In fact a Division Bench of this Court consisting of Kumarayya, C. J. and Sriramulu, J. deckled on 20-11-1970 in W. A. No. 521 of 1969 (Andh. Pra.) that Section 5 is a reasonable provision. We may also refer to two passages in Maxwell and a few decisions relied on by the learned counsel for the petitioner. In the first place, he invites our attention to two passages in Maxwell on 'The Interpretation of Statutes', Eleventh Edition. At page 221 the learned Jurist says that where the language of a statute in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. We neither see any manifest contradiction of the apparent purpose of Section 5 (1) nor its leading to any inconvenience or absurdity, hardship or injustice. So, this passage is irrelevant to the question. Likewise the passage at page 228 which says:

'Notwithstanding the general rule that full effect must be given to every word, yet if no sensible meaning can be given to a word or phrase, or if it would defeat the real object of the enactment, it may, or rather it should, be eliminated. The words of a statute must be construed so as to give a sensible meaning to them if possible.' We will only repeat what we have said in regard to the passage at page 221. We do not find any difficulty in giving any sensible meaning to the words or expressions used in Section 5 (1), Reference is made to Mysore State Electricity Board v. Bangalore W. C. & S. Mills, : AIR1963SC1128 where the wide words used in Section 76(1) of the Electricity (Supply) Act, 1948 fell for interpretation. The Supreme Court held that even though the words used were of wide amplitude it was implicit in the sub-section that the question arising thereunder was one which arose under the Electricity (Supply) Act. While construing the provision the court observed that the literal and mechanical construction for which the petitioner contends is neither the only nor the true construction of clauses which provide for acquisition of land needed for construction of some building or work. There are two possible constructions of the clause, one a mere mechanical and literal construction based on rules of grammar and the other which emerges from the setting in which the clause appears. The Court chose the second construction as it is the better one. The same rule was reiterated by the Supreme Court in R. L. Arora v. State of Uttar Pradesh, : AIR1962SC764 . In our opinion these decisions have no bearing on the construction of Section 5 as it leaves no doubt or ambiguity. There are no two constructions possible and there is no need to choose one of them. We have, therefore, no hesitation in rejecting the constitutional objection raised by the learned counsel.

11. It is then argued that Rummy is not a game of chance. Reliance has been placed on Saligram v. Emperor, AIR 1933 Cal 8 and State of A. P. v. K. Satyanarayana, AIR 1&68 SC 825. It is true that the Supreme Court held in the latter case that Rummy, the way in which it is played cannot be simply called a game of chance and that there is no skill involved in it. At the same time, Hidayatullah, J. (as he then was) observed in para. 12:

'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.' In the light of these observations, it is obviously for the Court, which tries the criminal case, to find out whether there was any evidence of gambling when the search was made. Simply because what was played was only game of Rummy, the possibility of gambling is not altogether excluded. That depends upon the evidence of each case, as stated by the Supreme Court in the aforesaid decision. The Court while disposing of the criminal case, which has been launched, will have to decide this aspect. We can only refer in this context to the mediators' report which, has been specifically referred to in the counter and a copy of which is produced before us, which shows that several amounts of money were seized not only from the players but also from the representatives of the club which might indicate that the club was making a profit out of the game that was being played. We, however, do not express any opinion on this question lest it might prejudice the prosecution and the defence in the criminal case. We have only pointed out this for the purpose of showing that it is for the criminal Court to consider and decide whether any gambling was involved and whether the petitioner club was a common gaming house.

12. Lastly it has been submitted that the raid was vitiated by lack of bona fides and was motivated by extraneous considerations. Reliance is placed on Par-tap Singh v. Stale of Punjab, : (1966)ILLJ458SC . In the writ petition certain political motives are attributed to some persons in the town who are alleged to have a political grouse against this particular club. This is stoutly denied in the counter-affidavit. There is no material placed before us to show that any extraneous considerations have prompted the 2nd respondent to make the raid. Prima facie we may once again point out that this is not a recording of any finding--the mediatornama shows that the 2nd respondent was justified in believing that the club premises were then being used as a common gaming house.

13. We cannot, therefore, strike down the raid and its evil consequences on the ground of its being vitiated by

extraneous considerations.

14. These are all the points urged before us and we see no force in any of them. The writ petition is consequently dismissed with costs. Advocate's fee Rs. 100/-.


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