Chullikulath Muhammed Basheer vs The State Of Kerala on 18 September, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3563 of 2006()


1. CHULLIKULATH MUHAMMED BASHEER,
                      ...  Petitioner
2. CHULLIKULAVAN SAINUDHEEN
3. KALLINGALTHODIKA USMAN,
4. CHULLIKULATH ABOOBACKER, S/O.ALAVI

                        Vs



1. THE STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.BABU S. NAIR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice A.K.BASHEER

 Dated :18/09/2009

 O R D E R
                               A.K. Basheer, J.
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                        Crl.M.C. 3563 of 2006-A
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            Dated this the 18th day of September, 2009.
                                    ORDER

Petitioners who are four in number are being prosecuted along

with 46 others, for offences punishable under section 294A of the

Indian Penal Code and also under Sections 7 and 8 of the Kerala

Gaming Act 1960.

2. The case of the prosecution appears to be that petitioners who

have been arraigned as accused 15, 17, 19 and 22 were found inside a

room where some kind of activity called “single digit lottery” was

going on. The specific case of the prosecution is that accused Nos.1

and 2 were running the show while accused Nos.3 to 6 were aiding the

said business. Accused Nos.7 to 50, going by the prosecution case,

were found in the room allegedly participating in the activity.

3. Section 294A IPC reads thus:

“294A. Keeping lottery office:–Whoever
keeps any office or place for the purpose
of drawing any lottery not being a State
lottery or a lottery authorised by the State
Government, shall be punished with
imprisonment of either description for a
term which may extend to six months, or
with fine, or with both.

And whoever publishes any
proposal to pay any sum, or to delivery
any goods, or to do or forbear doing
anything for the benefit of any person, on
any event or contingency relative or

Crl.MC.3563/2006. 2

applicable to the drawing of any ticket,
lot, number or figure in any such lottery,
shall be punished with fine which may
extend to one thousand rupees.”

As mentioned earlier, petitioners who were admittedly found inside

the room had nothing to do with the running of the show. According to

the prosecution, accused Nos.1 and 2 were running the business.

4. Section 7 of the Gaming Act provides for penalty for

opening, keeping or using, or permitting to be used any common

gaming house or for conducting or assisting in conducting the

business of any common gaming house. Obviously Section 7 will not

be attracted against the petitioners. Section 8 provides for penalty for

being found gaming in a common gaming house.

5. Gaming has been defined in Section 2(b) of the Act thus:

“2(b) “gaming” does not include a
lottery but includes wagering or betting”

6. Having gone through the final report and other materials

available on record, there is nothing to indicate that petitioners were

actually found wagering or betting. The only allegation is that

petitioners were also found in the room in question.

7. Having carefully perused the materials available on record, I

do not find any justification in allowing the petitioners to be prosecuted

for the offences alleged against them. Therefore the proceedings

pending against the petitioners in S.T.No.6984/2003 on the file of the

Judicial Magistrate of First Class, No.I, Manjeri are quashed.

The Crl.M.C is allowed.

A.K. Basheer
Judge.

an.