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Telangana High Court
Mr. A.V.C Mohan And 4 Others vs The State Of Telangana And Another on 8 July, 2025
1
THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL
CRIMINAL PETITION No.5963 OF 2021
O R D E R:
This Criminal Petition is filed under Section 482 of Cr.P.C.
seeking quashment of proceedings against petitioners/accused
Nos.1 to 5 in C.C.No.2650 of 2021 on the file of the learned X
Additional Chief Metropolitan Magistrate, Secunderabad (for
short, “the trial Court”) for the offences punishable under
Sections 3 & 4 of the Telangana State Gaming Act, 1974 (for
short, “the Act”).
2. Heard Mr.Shaik Ahmed Ali, learned counsel representing
Mr.Mirza Nisar Ahmed Baig Nizami, learned counsel for the
petitioners and Mr.E.Ganesh, learned Assistant Public Prosecutor
appearing for respondent No.1-State.
3. The brief facts of the case are that on 19.01.2021
respondent No.2/de facto complainant, who is the Sub-Inspector
of Police filed a report stating that on 19.01.2021, he received
information that accused No.1 is organizing and accepting a three
card game which is a game of chance at his residence bearing
H.No.11-1-13 & 184, Padmavati Residency, Sitaphal Mandi,
using the premises as common gaming house; that on believing
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the information to be true, he obtained an authorized memo from
the Assistant Commissioner of Police, Gopalapuram Division,
Secunderabad for raiding the above mentioned premises; that
immediately, de facto complainant summoned two mediators and
drafted search proceedings in their presence along with his staff,
panchas, proceeded to the above spot and raided the above said
premises. After serving copy of search proceedings under Section
165 of Cr.P.C. to accused No.1, respondent No.2 entered the
premises and found that four (4) persons were playing cards; that
they disclosed their identities as accused Nos.2 to 5 and allegedly
they have been playing three card game by betting money which
is a game of chance. On inquiry it is revealed that accused No.1
is organizing and using the house as gaming house and
apprehended the petitioners along with ceased total net cash of
Rs.20,370/-, two (2) cell phones, fifteen (15) play cards and
requested to take necessary legal action. Upon receipt of the said
complaint, the Police personnel of P.S. Chilkulguda registered
crime in F.I.R.No.35 of 2021 and subsequently, charge sheet was
filed vide C.C.No.2650 of 2021 on the file of the trial Court for the
offences punishable under Sections 3 & 4 of the Telangana State
Gaming Act, 1974.
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4. Learned counsel for the petitioners submits that the
petitioners are falsely implicated by LW-10/Investigating Officer,
in order to wreak vengeance for illegal gains by distorting actual
facts; that as per the settled preposition of law laid down by the
Hon’ble Supreme Court and various High Courts, ‘gaming’
muchless playing card itself is not an offence as per the Gaming
Act, but it is punishable only when the same is played or
organized in a ‘Common Gaming House’ and not otherwise.
5. He states that in the case on hand, residence of accused
No.1 is maliciously shown and described as ‘Common Gaming
House’ which term, is absolutely misplaced from actual fact and
far away from truth; that the police personnel, in order to settle
their score with petitioners herein in particular with petitioner
No.2, who is a practicing Advocate, mentioned the residential
house as ‘Common Gaming House’.
6. He further contends that as per panchanama and charge
sheet, the police personnel have recovered only (15) cards; that in
order to establish a card game, the instrument for gaming is pack
of playing cards (52) in number and that no card game muchless
three (3) card game can take place with (15) playing cards. He
further submits that in similar set of circumstances, this Court
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vide order dated 28.03.2025 in Crl.P.No.15822 of 2024, order
dated 26.09.2022 in Crl.P.No.9687 of 2016 and order dated
25.10.2024 in Crl.P.No.10830 of 2024 quashed the proceedings
against the petitioners therein. Hence, relying the aforecited
decisions, he seeks to quash the impugned proceedings.
7. Learned Assistant Public Prosecutor submits that the
matter requires to be tried and seeks to dismiss the Criminal
Petition.
8. Section 3 of the Act, reads as under:
3. Penalty for opening, etc., a common gaming
house – 1[(1) Any person who opens, keeps, operates,
uses or permits to be used any common gaming house or
online gaming or conducts or assists in conducting the
business of any common gaming house or advances or
furnishes money for gaming therein, shall be punishable
–
(i) For the first offence, with imprisonment for a
term which may extend to one (1) year and with fine
which may extend to Rs.5,000/- (Rupees Five Thousand
only); but in the absence of special reasons to be
recorded in writing, the punishment awarded under this
clause shall be imprisonment for not less than three (3)
months and fine of not less than Rs. 3,000/- (Rupees
Three Thousand only);
(ii) For every subsequent offence, with
imprisonment for a term which may extend to two (2)
5years and with fine which may extend to Rs.10,000/-
(Rupees Ten Thousand only), but in absence of special
reasons to be recorded in writing the punishment
awarded under this clause shall be –
(a) For a second offence, imprisonment for not
less than six (6) months and fine of not less than
Rs.5,000/- (Rupees Five Thousand only);
(b) For a third or subsequent offence,
imprisonment for not less than one (1) year and fine of
not less than Rs.10,000/- (Rupees Ten Thousand
only).]Explanation: – For the purpose of this section, the
expression “person” includes the owner, or as the case
may be, the occupier of the place used as a common
gaming house and where such place belongs to or is
occupied by a club, society or other association of
persons, the person having the care or management of
such place.
(2) It shall not be necessary, in order to convict any
person for opening, keeping or using or permitting the use
of common gaming house or of being concerned with the
care or management of a common gaming house, to prove
to prove that any person found therein was gaming for
money, wager, bet or stake.
Similarly, Section 4 of the Act, runs as under:
“4. 3[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
punishable with imprisonment for a term which may extend to
six (6) months or with fine which may extend to Rs. 3,000/-
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(Rupees Three Thousand only) or with both.] 1. Substituted by
the Act No. 43 of 2020, S.3. 2. Inserted by the Act No. 43 of
2020, S.4. 3. Substituted by the Act No. 43 of 2020, S.5.
Explanation:- For the purpose of this section, any person found
in any common gaming house during gaming therein shall be
presumed to have been present there for the purpose of
gaming.”
As per Section 2 (1) of the Act, the definition of common
gaming house is as under:
“(1) ‘common gaming house’, means –
(i) in the case of gaming –
(a) on a horse-race except in the manner provided in
clause (2); or (b) on the market price of cotton, bullion
other commodity or on the digits of the number used for
stating such price; or
(c) on the ground of variation in the market price of any
commodity specified in item (b) or on the digits of the
number used for stating the amount of such variation; or
(d) on the market price of stock or share or on the digits
of the number used for stating such price; or
(e) on the number of registration or on the digits of the
number of registration of any motor vehicle using a
public place; or
(f) on any transaction or scheme of wagering or betting in
which the receipt or distribution of winnings of prizes, in
money or otherwise, is made to depend on chance, any
house, room, tent, enclosure, vehicle, vessel, 1[cyber
space] or any place whatsoever in which the gaming
takes place or in which the horses or other instruments
of gaming, are kept or used for such gaming;
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2[“(ii) in the case of any other form of gaming, any house,
room, tent, enclosure, vehicle, vessel, cyber space or any
place whatsoever in which any instrument 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, cyber space or any place
whether by way of charge, for the use of such house,
room, tent, enclosure, vehicle, vessel, cyber space or any
place or instruments of gaming or otherwise howsoever;
Explanation:- For the purpose of clause(ii), any premise or
place or cyber space belonging to or occupied by a club,
society, company or other associations of persons, whether
incorporated or not, which is used or kept for the purpose of
gaming shall be deemed to be a common gaming house
notwithstanding that there is no profit or gain for the club,
society, company or other associations of persons on account
thereof.”
9. Therefore, in order to fasten the liability under Section 3 of
the Act, the prosecution is expected to prove that the place,
where the raid was done is a common gaming house. In order to
consider a place as common gaming house as defined under
Section 2(1) of the Act, the prosecution is expected to prove that
the premises where the gaming was being conducted, shall be a
house, room, etc., which is used for profit or gain for occupying
the same for playing Cards. That means, in order to prove the
place, where the petitioners were allegedly playing the Cards, the
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person, who is in-charge and was in possession of the subject
premises was permitting the petitioners to use the said premises
on some payment/remuneration and that the person, who is in-
charge of premises shall collect money for permitting to use the
said premises for gaming purpose.
10. In Bhimrao Trimbakrao Ingle v. State of Maharashtra 1
the Hon’ble Supreme Court held as follows:
“Even though on an appreciation of evidence adduced by
the prosecution the Sessions Court came to the conclusion that
the prosecution had failed to establish that Appellant No. 6
was deriving any profit or gain by way of charges for the use
of the room in question and that accordingly it was not a
‘common gaming house’, the Court strangely enough held that
it was a common gaming house within the meaning of Section
3(ii) of the Act by reason of the presumption under Section 7 of
the Act. What was held to be ‘not’ a ‘Common Gaming House’,
having regard to the fact that evidence adduced by the
prosecution was considered unacceptable could not have been
held to be a common gaming house by recourse to the
presumption under section 7. The presumption is a rebuttable
presumption which was not required to be rebutted by the
defence inasmuch as the prosecution evidence was discredited
and rejected and the presumption stood rebutted on that
account. What is not a ‘common gaming house’ in fact in the
light of evidence cannot become a common gaming house by
reason of a presumption under section 7. The reason is neither
far to seek nor obscure. What the prosecution is required to
1 1986 (4) SCC 91
9establish by recourse to the presumption is that the room is a
‘common gaming house’ as defined in the dictionary of Section
3(ii) that is to say that the occupier is collecting charges for the
use of the room. When evidence in adduced and the
prosecution fails to establish that such charges are in fact
collected, how can the Court hold in the face of its own finding
that such charges are collected, that even so it is a ‘common
gaming house’ because of the presumption? The Sessions
Court was in error in convicting the appellants for an offence
under Section 5 which can be committed only provided the
persons concerned were gaming or were present for the
purpose of gaming in a ‘common gaming house’. The High
Court was in error in failing to appreciate the import of the said
finding recorded by the Court on the basis of the appreciation
of evidence that in fact it was not a ‘common gaming house’ as
found by the Sessions Court, and confirmed by the High Court.
None of the appellants could therefore be convicted for an
offence under Section 5. The appeal is, therefore, allowed. The
order of conviction and sentence is set aside.”
11. In Jagat Singh Kishor Singh Darbar v. The State Of
Gujarat 2 the Hon’ble Supreme Court held as follows:
“We fully agree with the High Court that the expression
“or otherwise howsoever” is of the widest amplitude and
cannot be restricted in its scope by the words immediately
preceding it which lay down that the profit or gain may be by
way of charge for the use of the premises. In this connection
we may usefully quote from the judgment of Shah, Acting C.J.,
who delivered the judgment of the Division Bench in Emperor
v. Dattatraya Shankar Paranjpe, (Supra).
2 1979 (4) SCC 307
10“It is essential for the prosecution under this definition to
establish that instruments of gaming were kept or used in the
house, room or place for profit or gain of the person owning,
occupying, using or keeping the house, room or place. It may
be done by establishing that the person did so either by a
charge for use of the instruments of gaming or of the house,
room or place, or otherwise howsoever. The (1) 25 Bombay
Law Reporter 1089 = A.I.R. 1924 Bombay 184.
(2) 47 Bombay Law Reporter 75 = A.I.R. 1945 Bombay 305.
expression “otherwise howsoever” appears to be very
comprehensive, and does not suggest any limitation, such as is
contended on behalf of the accused.” …… ……. …. …….. …….
………… …… ……. …. …….. ……. ………… “We have heard an
interesting argument on the question as to how far the words
justify the somewhat restricted meaning which has been put
upon the definition by the learned Judge of the Allahabad High
Court; and after a careful consideration of the arguments urged
on either side, and with great respect to the learned Judges, I
have come to the – conclusion that the words of the definition
which we have to construe here would not have their full
meaning if we were to accept the narrow construction. I do not
think that on a proper construction of the definition the
prosecution can be restricted for the purpose of proving that a
particular house, room or place is a common gaming house, to
the two alternatives mentioned in the case of Lachchi Ram v.
Emperor(‘). It is sufficient if the house is one in which
instruments of gaming are kept or used for the profit or gain of
the person keeping or using such place, i.e., where the person
keeping or using the house knows that profit or gain 4 15 Will
in all probability result from the use of the instruments of
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gaming. The profit or gain may not actually result from such
use. But if profit or gain is the probable and expected result of
the game itself-and if that is the purpose of keeping or using
the instruments, it would be sufficient, in my opinion, to bring
the case within the scope of the definition. At the same time it
is clear that the prosecution must establish that the purpose is
profit or gain. This may be done either by showing that the
owner was charging for use of the instruments of gaming or for
the use of the house, room or place, or in any other manner
that may be possible under the circumstances of the case,
having regard to the nature of the game carried on in that
house.” The opinion of Shah, Acting C.J., was noted with
approval in Emperor v. Chimanlal Sankalchand (supra), the
reasoning adopted in which may be reproduced with
advantage:
“Lachchi Ram‘s case was considered by a Division
Bench of this Court in Emperor v. Dattatraya (1923) 25
Bombay (1) A.l.R. 1922 All. 61.
Law Reporter (1089) and was dissented from. It was
held that to constitute a common gaming house it was
sufficient if it was one in which instruments of gaming were
kept or used for the profit or gain of the person keeping or
using such place, i.e., where the person keeping or using the
house knew that profit or gain would in all probability result
from the use of the instruments of gaming. The profit or gain
may not actually result from such use. But if profit or gain is
the probable and expected result of the game itself and if that
is the purpose of keeping or using the instruments, it would be
sufficient to bring the case within the scope of the definition. C
“It is argued by Mr. Pochaji on behalf of the accused that even
12in that case it was observed that ‘the prosecution must
establish that the purpose was profit or gain and that that
might be done either by showing that the owner was charging
for the use of the instruments of gaming or for the use of the
room or place or in any other manner.’ The words ‘or in any
other manner,’ (which were used there instead of the words
appearing at the end of the definition’ ‘or otherwise howsoever’)
cannot be regarded as restricting the profit or gain of the owner
or occupier of the house to profit or gain in a manner ejusdem
generis with what pre cedes those words, and hence even the
hope of making a profit out of the gambling itself is sufficient to
satisfy the requirement of the definition of common gaming
house. It may happen that the occupier of a house may allow it
to be used by the public for gambling and he himself may take
part in it in the hope of making a profit, although he may not
necessarily make it every time. Such a hope is sufficient to
make the house a common gaming house and the occupier
liable for keeping such a house.”
We fully agree with the interpretation of the definition of
the term “common gaming house” occurring in section 3 of the
Bombay Act as propounded in, the two Bombay authorities
cited above, as also in the impugned judgment, that
interpretation being in conformity with the unambiguous
language employed by the legislature. The opinion to the
contrary expressed in Lachchi Ram‘s case (supra) and in other
decisions is found to be incorrect.
6. The learned counsel for the appellants concedes that
if the interpretation placed on clause (ii) of the definition by the
impugned judgment be upheld, the conviction of the appellants
in the two appeals is well-founded. However, we may state
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that there is another good reason for upholding the conviction
and that flows from the presumption which has to be raised
under section 7 of the Bombay Act which states:
“When any instrument of gaming has been seized in any
house, room of place entered under section 6 or about the
person of any one found therein, and in the case of any other
thing so seized if the court is satisfied that the Police Officer
who entered such house, room or place had reason able
grounds for suspecting that the thing so seized was an
instrument of gaming, the seizure of such instrument or thing
shall be evidence, until the contrary is proved, that such house,
room or place is used as a common gaming- house and the
persons found therein were then present for the purpose of
gaming, although no’ gaming was actually seen by the
Magistrate or the Police Officer or by any person acting under
the authority of either of them:
Provided that the aforesaid presumption shall be made,
notwithstanding any defect in the warrant or order in
pursuance of which the house, room or place was entered
under section 6. if the Court considers the defect not: to be a
material one.”
It is not disputed that instruments of gaming were seized
from the premises in question in both the appeals. That
circumstances, according to the section, “shall be evidence,
until the contrary is proved, that such house, room or place is
used as a common gaming-house and the persons found
therein were present for the purpose of gaming, although no
gaming was actually seen .. ” . The profit or gain mentioned in
clause (ii) of the definition and also the other requirements of
that clause are a matter of peremptory presumption which has
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to be raised by the court as soon as the seizure of instruments
of gaming from the place in question is proved, as is the case
here. Admittedly, there is no evidence in rebuttal of the
presumption which must therefore be raised and which
furnishes a good basis for the conviction of the appellants.
7. In the result both the appeals fail and are dismissed.”
12. In the case on hand, there are no allegations on the
petitioners that they have been paying some amounts to a third
person for using the said premises for gaming purpose. In view
of the principle laid down in the above said citations, it cannot be
said that the petitioners have committed the offence under
Section 3 of the Act, more particularly when there is no person,
who was in-charge and in possession for collecting money
towards usage charges. Therefore, Section 3 of the Act cannot be
fastened on the petitioners as the house, wherein they are
alleged to have been playing Cards and hence, the said house
cannot be described as a gaming house.
13. The petitioners were charged for the offence under Section 4
as well as Section 3 of the Act. Therefore, it is to be examined
whether facts narrated by the prosecution would amount to
committing of an offence under Section 4 of the Act. In the case
on hand, according to the prosecution, the petitioners, who were
15
present for the purpose of gaming in a common gaming house,
shall, on conviction may suffer for simple imprisonment for six
months, which may extend to three years. Unless the place of
the offence is specified to be a common gaming house, Section 4
of the Act will not attract.
14. Considering the circumstances, the premises where the
petitioners were playing Cards, cannot be termed as a gaming
house as defined under Section 2 (1) the Act, since it is not a
gaming house Section 3 of the Act is not applicable, thereby the
petitioners cannot be punished for the offence punishable under
Section 4 of the Act as well.
15. Accordingly, the Criminal Petition is allowed and the
proceedings in so far as the petitioners-accused Nos.1 to 5 are
concerned in C.C.No.2650 of 2021 on the file of the learned X
Additional Chief Metropolitan Magistrate, Secunderabad for the
offences under Sections 3 & 4 of the Telangana State Gaming Act,
1974 are hereby quashed.
Miscellaneous Petitions, pending if any, shall stand closed.
_____________________
E.V. VENUGOPAL, J
Date: 08.07.2025
ESP
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