JUDGMENT

Mr. Deepak Gupta, J.

Prayer in this petition is to quash FIR No.267 dated 21.09.2018, registered at Police Station City, Khanna, under Section 13-A of the PUBLIC GAMBLING ACT , 1867 (hereinafter referred as 'the Act') (Section 120-B IPC added later on) along with all subsequent proceedings.

2. As per allegations, on 21.09.2018, ASI Dimple of Police Station, City Khanna along with other police officials was present near Ambika Medical Store, opposite bus stand, Khanna, for patrolling, when they received a secret information against the petitioners that they are involved in betting and earn commission and for that purpose they had kept agents, who collect money for them. It was further alleged that they had kept an Accounts Clerk Vijay to maintain the betting accounts. It was also informed that on that day, Gurdev Singh (co-accused) was coming to give them cash received as betting money and that if a raid is conducted immediately, all of them could be apprehended red handed. Ruqqa was sent to the police station. FIR was registered. All the petitioners were arrested. During search, Rs. 3,500/- and some slips were recovered from petitioner No.1. Rs. 3,830/- and slips were recovered from petitioner No.2. Rs. 43,790/- and slip of details of accounts were recovered from co-accused Vijay Kumar and Rs. 9,180/- were recovered from co-accused Gurdev. After completion of investigation, challan under Section 173 Cr.P.C. was filed in the Court.

3. It is submitted by the petitioners that they have been falsely implicated by respondent No.2, who along with her subordinates forcibly broke open the main door of their house without any search warrant at 1.50 a.m. on 21.09.2018 and forcibly took away Rs. 1,00,000/-. Petitioner No.1 was made to write on a piece of paper and thereafter, they were detained in the police station. FIR is alleged to be nothing but abuse of process of law registered with ulterior motive, as illegal gratification demanded by the respondents, was not met.

4. Apart from the other grounds pleaded in the petition, learned counsel for the petitioners has emphasized on the plea that alleged raid is in total violation of Section 5 of the Act and so, FIR and its subsequent proceedings are liable to be quashed on this ground alone. It is alleged that under Section 5 of the Act, it is only the Magistrate of a District or other officer vested with the full powers of a Magistrate, or the District Superintendent of Police or the Deputy or the Assistant Superintendent of Police, who have the power to make search of any house, room etc., but in the present case, raid in the house of the petitioners was conducted by an officer of ASI rank.

5. Section 5 of the Act reads as under: -

"Section -5 Powers to enter and authorise police to enter and search: -

If the Magistrate of a District or other officer invested with the full powers of a Magistrate, or the District Superintendent of Police or the Deputy or the Assistant Superintendent of Police, upon credible information, and after such enquiry as he may think necessary, has reason to believe that any house, room, tent, enclosure, space, vehicle, vessel or place, is used as a common gaming-house,

he may either himself enter, or by his warrant authorize any officer of police, not below such rank as the State Government shall appoint in this behalf to enter with such assistance as may be found necessary, by night or by day, and by force, if necessary, any such house, room, tent, enclosure, space, vehicle, vessel or place;

and may either himself take into custody, or authorise such officer to take into custody, all persons-whom he or such officer finds therein, whether or not then actually