K.A. Mohamed Shafi, J.

Since the contentions raised in all these Crl.M.C.s. are identical, they are heard and disposed of by this common order, though the petitioners in these M.Cs. are different. In all these cases the petitioners who are the accused are standing trial for the offences punishable under Ss.7 and 8 of the Kerala Gaming Act.

2. Crl.M.C.1149/2000 is filed by the accused in S.T. No. 202/2000 on the file of the Judicial First Class Magistrate's Court, Ettumanoor to quash the entire proceedings against them. The allegation made against the petitioners is that on 3.1.2000 petitioners 1 to 11 were found engaged in gaming at the Jyothis Arts and Sports Club situated in building No. 118, Ward No. 9 of Kidangoor Panchayat owned by the 12th petitioner-nth accused and the playing cards and amount found were seized and the accused were

arrested.

3. The petitioner in Crl.M.C. No. 1360/2000 is accused No. 16 in S.T.C. No. 8/99 on the file of the judicial First Class Magistrate's Court-I, Kannur. The allegation made against him is that on 22.8.98 at about 5.15 p.m. accused Nos.1 to 17 were found engaged in gaming for gain in the upstair portion of building No. PP X/485 of Pallikunnu Panchayat wherein the Chalad Recreation Club and Udaya Vayanasala are being conducted and they were arrested and the playing cards and Rs. 5820/- were seized from them.

4. Crl. M.C. 6310/99 is filed by the accused in S.T. No. 185/99 pending before the Judicial First Class Magistrate's Court, Kattappana. It is alleged that on 21.2.99 accused 2 to 17 were found engaged in gaming called' j)" in the building owned by the 1st petitioner-1st accused at Kattappana and the playing cards and amount of Rs. 13602/- were seized from the scene of occurrence while the accused were

arrested.

5. Crl.M.C. 6335/99 is filed by accused 1,2 and 4 to 11 in S.T. No. 56/99 on the file of the Judicial First Class Magistrate's Court, Kattappana challenging the order in C.M.P. No. 3009/99 dated 20.7.99 dismissing the petition filed by the petitioners seeking discharge. The allegation made against the petitioners and the 2nd respondent herein is that they were engaged in gaming at about 9.15 p.m. on 11.11.98 in the Yuvaresmi Arts and Sports Club situated at 10th mile area in Ward No. Ill of Kalvarimount kara in Thankamani Village. The learned Magistrate rejected the contention of the petitioners that they were only playing cards and not gambling and no prima facie case punishable under Ss.7 and 8 of the Gaming Act is made out against them.

6. The petitioners in all these cases have contended that they were only engaged in playing cards for pleasure at the respective places and they were not gaming or playing for gain as alleged by the prosecution. They have also contended that there is no allegation that they were engaged in gaming in a common gaming house. They have further contended that the mandatory provisions of S.5 of the Kerala Gaming Act are not complied with regard to the alleged search and seizure in these cases. Therefore, according to them, absolutely no material is available in these cases to make out a prima facie case involving offences punishable under Ss.7 and 8 of the Kerala Gaming Act against them and therefore, the entire proceedings initiated against them should be quashed.

7. The counsel for the petitioners submitted that consistent view is taken by this Court from the year 1964 onwards that gaming in private place is not gaming in a common gaming house as defined in S.2(a) of the Kerala Gaming Act so as to attract the penal provisions of Ss.7 and 8 of the Act. S.2(a) of the Kerala Gaming Act defines common gaming house which reads as follows:

"2. Definitions- In this Act, unless the context otherwise requires,

(a) 'common gaming house' means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using