ORAL JUDGMENT

1. The petitioners before this Court have invoked the jurisdiction under Section 482 of the Code of Criminal Procedure 1973, for quashing and setting aside the proceedings of Criminal Case No. 17498 of 2021, pending before the Court of learned 8th Additional Civil Judge and Judicial Magistrate First Class at Mirzapur, Ahmedabad, arising out of FIR being II-C.R. No.11191001210292 of 2021, lodged before the Anandnagar Police Station, Ahmedabad, for the offences punishable under Sections 4 and 5 of the Gujarat Prevention of Gambling Act, 1887 (hereinafter referred as “ the Gambling Act”).

2. Facts bereft of unnecessary details in the FIR are to the effect that the informant in due course of discharging his duties alongwith other police officers received anonymous tip that certain persons were gambling at House No.83 at Shaligram-2. The first informant in furtherance to his duties carried out raid at the said location and upon entering the said location, allegedly found a table in the dining room dining room around which five individuals were seated and upon the table, the informant saw playing cards and coins of varying colors, and thus, the FIR came to be lodged under the provisions of Section4 and 5 of the Gambling Act.

2.1. It is this FIR and the proceedings initiated thereupon which are challenged by way of the present petition.

3. Rule. Learned Additional Public Prosecutor waives service for respondent – State.

4. Learned Senior Advocate Mr. Tejas M. Barot with learned Advocate Mr. Dhaval Barot for the petitioners would submit that no ingredients set out under Section 4 of the Gambling Act, are met out from the prima facie reading of the FIR, and that the petitioners have been wrongly implicated. Learned Senior Advocate would further submit that the house which was raided that of petitioner No.1 does not fall within the four corners of “common gaming house” and thus, the requirement of the Act under Section 4 are not fulfilled, and there is not an iota of evidence that by way of charge or that the house was used for the profit or gain from such gaming, and not an iota of evidence is discernible from the papers of the chargesheet or the FIR, and thus, has prayed to quash the present FIR and consequential proceedings.

4.2. Learned Senior Advocate would further submit that even while entering and searching the premises, the raiding party had no reasons to suspect that the place was used as a “common gaming house”, and that while issuing special warrant by the competent authority had also not arrived at objective satisfaction that the competent authority had reasons to suspect that the house under question was used as a “common gaming house”. Thus, it is argued that even while issuing special search warrant, no inquiry was undertaken to arrive at a conclusion that good grounds to suspect that the house under question was used as a “common gaming house” was arrived at by the competent authority while issuing the search warrant, which has caused serious prejudice to the petitioners herein, and has thus, argued to allow the present petition.

4.3. To substantiate his arguments, learned Senior Advocate would rely upon the judgment in the case of Nimmagada Raghavalu and others, reported in 1952 SSC OnLine Mad 87, wherein it is held as under:

“Gambling is not by itself an offence and it becomes only when it takes place in common gaming house or a public place, with the latter of which we are not concerned here. In order to make out the offence three things must occur. First all of the gambling must be in a common gaming house. “Common Gaming House” has been defined as meaning any house in which cards are kept or used for the profit or gain of the person owning, occupying using or keeping such house whether by way of charge for the use of instruments of gaming or of the house. The mere fact occasionally people used to play cards in a house and perhaps for money does not necessarily make it a co