JUDGMENT - M.L. DUDHAT, J.:---The petitioner in this case has filed this criminal writ petition for quashing the prosecution under sections 4(a) and 5 of The Bombay Prevention of Gambling Act, 1887, pending before the Metropolitan Magistrate, 28th Court at Esplanade, Bombay.

2. Few facts which are material to dispose of this criminal writ petition are as under :

Petitioner in this case is the Manager of a video game parlour situated at Chembur. Petitioner is running the business under the name and style as 'Good Luck Video Game Parlour'. It is the case of the petitioner that the petitioner had applied for a licence under Rule 109 of the Rules for Licensing and Controlling Places of Public Amusement (other than Cinema) and Performance for Public Amusement including Melas and Tamashas, 1960. As per the said application, the licence was granted in favour of the petitioner by respondent Nos. 1 and 2 in April 1987. Under the said licence different machines were installed and played for amusement. The said machines were specified in the licence granted to the petitioner. Petitioner also obtained ticket selling licence from respondent No. 1. The said ticket selling licence was obtained by the present petitioner for the sale of tokens on payment of cash as the machines could be operated only on inserting the tokens.

3. It is the case of the petitioner that on 23rd April 1987 in the evening the officers of respondent No. 1 came to the place where the petitioner was running video game parlour. On the said date respondent No. 1 seized five machines more particularly described in para 3 of the petition. Since, according to the petitioner, the said seizure made was illegal, the petitioner preferred Writ Petition No. 1541 of 1987 on the Original Side of the High Court and on 29th April 1987 this Court granted the rule and as an interim order directed the respondents to return to the petitioner the five video game machines seized from the petitioner. As per the aforesaid of this High Court, the respondents returned the said machines.

4. On 30th May 1987 respondent No. 2 raided the said premises of Good Luck Video Game Parlour and took charge of 14 machines which were the subject matter of the licence granted to the petitioner as mentioned aforesaid. It is the allegation of the petitioner that the said machines were seized by respondent No. 2 without panchanama and without any search warrant. Thereafter the petitioner was prosecuted under sections 4(a) and 5 of the Bombay Prevention of Gambling Act, which is the subject matter of challenge in this criminal writ petition.

5. The said prosecution is challenged by the petitioner on various grounds. However, according to me, the main controversy revolves around as to whether the alleged user of the machines can come within the definition of words 'instrument of gambling'--under the Bombay Prevention of Gambling Act.

6. At the outset I may mention that it is an admitted position that vide Exh. 'A' to the petition the petitioner obtained licence under Rule 109 of the Rules for Licencing and Controlling Places of Public Amusement including Melas and Tamashas, 1960. It is also an admitted position that the said licence, which is at Exh. 'A', refers to in all 17 video machines for which the licence was granted by respondent No. 1. The only point of dispute is that as per Shri Chitnis, learned Counsel for the petitioner, the machines referred to as 'Chance Now' and 'Bigwin Joker' were the items referred to in the licence while according to Shri Lambay, learned Addl. Public Prosecutor, for the State, 'Chance Now' and 'Bigwin Joker' and also 'Checker' are the machines which were not referred to in the licence granted to the petitioner, which is at Exh. 'A'. According to me, the said difference is not going to affect my decision in this matter and, therefore, this difference in inconsequential while deciding this writ petition.

7. Petitioner is charged under section 4(1)(a) of the Bombay Prevention of Gambling A

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