http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: K. SATYANARAYANA & ORS.

DATE OF JUDGMENT: 22/11/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  825            1968 SCR  (2) 387

ACT: Hyderabad  Gambling  Act  (2  of 1305F),  ss.   3,   7   and 14--Extra  charges levied by club for  playing  cards,   and playing   beyond  prescribed hour-Common gambling  house  if constituted--Rummy, if a game of chance.

HEADNOTE:     The  police  raided the premises of a club   and   found respondents  1--5 playing "Rummy" for stakes,  counters  and money  on  the  table and playing-cards  with  the  players. Respondent  6  the Treasurer of the Club,  was  holding  the stake  money.  Respondent 7---the Secretary of the club  was not present then.  All the respondents were convicted by the Trial  Court, but the conviction was set aside by  the  High Court.   In  appeal  to  this  Court,  the   appellant-State contended that this club was a  common gambling house as.  a fee  of  5  points per game was charged  by  the  club,  the playing-cards.  were supplied at an extra charge of  Rs.  3. there  was a sitting fee of Re. 1 per person who joined  the game,  and  if the  game continued beyond a certain  time  a late fee was levied; and further that. the presumption under s.  7 of the Gambling Act had not been repelled;but  on  the other  hand it had been confirmed by the  making   of   this charge by the club.  Dismissing the appeal HELD:    This  club  was  not  a  common   gambling   house. The  presumption under s. 7 even if it arises in this  case, was  successfully  repelled by the evidence which  had  been led. [392 D] Just  as  some fee is charged for the  games  of  billiards, ping-pong,  tennis  etc. an extra charge for  playing  cards (unless it is extravagant) would not show that the club  was making profit or gain so as to render the club into a common gambling house.  Similarly, a late fee is generally  charged from  members  who  use  the  club  premises   beyond    the scheduled   time This is necessary because the  servants  of the  club  who attend on the members have to be  paid  extra remuneration  by way of overtime, and expenditure  on  light and  other amenities has to be incurred beyond  club  house. The  accounts  showed that the sitting fee of 50  raise  was charged  per person.  This was not such a heavy charge in  a Members’  Club  as to be described as an attempt to  make  a profit or gain  for  club.  Of course, if it had been proved

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

that  5  points per game was charged, that might  have  been considered as an illegal charge sufficient to bring the club within the definition. [392 G--393 C]     The protection of s. 14 was not available in this  case. Rummy is not a game entirely of chance like the ’three-card’ game.  It requires certain amount of skill because the  fall of the cards has to be memories and the building up of Rummy requires considerable skill in holding and discarding cards. It is mainly and preponderantly a game of skill.  The chance in Rummy is of the same character as the chance in a deal at a  game of bridge.  In fact in all games in which cards  are shuffled  and  dealt  out, there is an  element  of  chance, because  the distribution of the cards is not  according  to any  set  pattern but is dependent upon how the  cards  find their place in the shuffled pack.  From this alone it cannot be  said  that Rummy is a game of chance and  there  is  no. skill  involved  in it of course, if there  is  evidence  of gambling in some other way or 387 388 the  owner of the house or club is making a prOfit  or  gain from the game of Rummy or any other game played for  stakes, the  offence  may  be brought home. [393 F--394 B]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 40  of 1965. Appeal  by special leave from the judgment and  order  dated August 4, 1964 of the Andhra Pradesh High Court in  Criminal Revision Case No- 479 of 1964. P. Ram Reddy and B. Parthasarathy, for the appellant. A.S.R. Chari, K. Rajendra Chaudhuri and K.R. Chaudhuri,  for the respondents. The Judgment of the Court was delivered by Hidayatullah,  J.  The State  of Andhra Pradesh  appeals  by special  leave  against the judgment of the  High  Court  of Andhra  Pradesh  in  which, accepting  a  reference  by  the Sessions Judge, the conviction of the respondents under  ss. 4  and 5 of the Hyderabad Gambling Act (2 of 1305F)  ordered by  the  5th City Magistrate at Secunderabad  has  been  set aside. The short question in this case is whether the premises of a Club  known  as the "Crescent Recreation Club"  situated  in Secunderabad were being used as a common gambling house  and whether the several respondents who were present at the time of  the  raid  by the police could be said  to  be  gambling therein.  The facts of the case are as follows :-- On  May  4, 1963, the police headed  by   Circle   Inspector Krishnaswami  raided the premises of the club.   They  found respondents  1-5  playing a card game known as  "Rummy"  for stakes. At the time of the raid, there were some counters on the table as also money and of course the playing-cards with the  players. Respondent No. 6, the Treasurer of  the  Club, was  also present and was holding the stake money  which  is popularly  known  as  "kitty".  The 7th  respondent  is  the Secretary of the Club and he has been joined as an  accused, because he was in charge of the management of the club.  The kitty which the sixth respondent held was Rs. 74.62nP and  a further sum of Rs. 218/- was recovered from the table of the 6th respondent.  66 counters were on the table and some more money  was found with the persons who were indulging in  the game.   The evidence of the Circle Inspector is that he  had received credible information that the premises of the  club were being used as a common gambling house and he raided  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

and  found  evidence, because instruments of  gambling  were found  and the persons present were actually gambling.   The Magistrate convicted all the seven respondents and sentenced them  to various fines, with imprisonment in  default.   The respondents 389 then filed an. application for revision before the  Sessions Judge, Secunderabad who made a reference to the High   Court under s. 438 of the Code of Criminal Procedure, recommending the quashing of the conviction and the setting aside of  the sentences.  This recommendation was accepted by the  learned single  Judge  in the High Court and the present  appeal  is brought  against  his judgment by special leave  granted  by this Court.     The  Hyderabad Act follows in outline the provisions  of the Public Gambling Act, 1867 in force in India.  Section  3 of   the  Act  defines  a  "common  gambling  house".    The translation  of the Urdu text placed before us was found  to be inaccurate but we have compared the Urdu definition  with the  definition  of  "common gaming  house"  in  the  Public Gambling Act, and we are of opinion that represents a  truer translation   than   the  one  included  in   the   official publication.  We accordingly quote. the definition from  the Indian Act, adding thereto the explanation which  is not  to be  found  in  the  Indian  Act.   "Common   gambling-house" according to the definition means:                   "any  house,  walled enclosure,   room  or               place   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  or  keeping  such   house,               enclosure;  room or place, whether by  way  of               charge  for  the  use of  the  instruments  of               gaming,  or  of the house enclosure,  room  or               place, or otherwise howsoever?’                     Explanation :"The word ’house’  includes               a tent and all enclosed space." The  contention  in regard to this definition is  that   the evidence clearly disclosed that the club was being used as a common gambling house and therefore the penal provisions  of the   Act   were  clearly  attracted.   We   are   concerned additionally   with  several sections from the Gambling  Act which need to be seen.  Section 4, which follows in  outline the  corresponding  section  in  the  Public  Gambling  Act, provides for penalty for an owner, occupier or person  using common  gambling house and includes within the reach of  the section persons who have the care or the management of or in any  manner assist in conducting, the business of. any  such house,  enclosure  or open space.  The members of  the  club which is a ("Members’ Club") would prima facie be liable but as they are not before us, we need not consider the question whether they should also have been arraigned in the case  or not. The Secretary and the Treasurer, who were  respectively accused  Nos. 7 and 6 were so arraigned as  it was   thought they  came within the reach of s. 4 because they were in the care and management of the club itself.  Then there is s.  6 which again is similar 390 but not entirely similar to s. 5 of the Public Gambling Act. This provides for entry for search and entry by police.   It lays down as follows :--                      "If  the  District  Magistrate  or  the               Magistrate of the First Class or the  District               Superintendent  of Police or the Inspector  of               Police   in  the  city  and  the  suburbs   of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

             Hyderabad,  on credible information and  after               such  enquiries as he may deem necessary,  has               reason  to believe that any house or  premises               or  enclosure  or an open space is used  as  a               common gambling house he shall be empowered to               enter  or  authorise any police  officer,  not               below  the  rank of a Sub-Inspector  to  enter               with   such   assistance  as  may   be   found               necessary,  by night or by day, and by  force,               if  necessary, any such house or  premises  or               enclosure  or  open  space, and  it  shall  be               proper  to  arrest all persons whom  the  said               Magistrate or the Superintendent or  Inspector               of Police finds therein or to allow the Police               Officer so authorised  to arrest  such persons               whether   or not  they are actually  gambling.               and                     Seize  or authorise the said Officer  to               seize  all  instruments of  gambling  and  all               moneys  and securities for money and  valuable               articles,  reasonably  suspected to have  been               used or intended to be used for the purpose of               gambling  and  which are  found  therein,  and               search  or authorise such Police  Officers  to               search  all parts of the house or premises  or               enclosure  or  open space, which  he  or  such               officer shall have so entered when he or  such               officer   has  reason  to  believe  that   any               instruments  of gambling are concealed therein               and also the  persons whom he or such  officer               had  so  arrested and seize and  keep  in  his               possession all such instruments of gambling as               are found in the search.               Explanation: ....." Here the Circle Inspector was an officer authorised to enter upon  and search the premises of the club and therefore  his action  was  fully covered by the section. He  effected  the arrest   of  all  the persons who  were  present(respondents 1-6)   and  added to the number the Secretary  who  although not  present on the premises at the time was,  according  to him,  responsible  for the  offence under s. 4 of  the  Oct. Session  7 of the Act then provides for a presumption  which the  law allows to be drawn from the finding of cards,  etc. in a house in which a search according to the terms of s.  6 of the Act as taken place. That section reads as follows :-- 391                     "When  any  cards or dice  or  table  or               other  instruments or means of  gambling  have               been  found  in  any  house  or  premises   or               enclosure  or open space entered or  searched,               in  accordance with the provision of s.  6  or               have  been  found  with any   of  the  persons               therein,  it  shall  be  evidence,  until  the               country  is proved, that such house,  premises               or enclosure or open space is used as a common               gambling  house and the persons found  therein               were  present  for  the  purpose  of  gambling               although no play was actually witnessed by the               Magistrate  or the police officer or  an3’  of               his assistants." This section gives rise to a presumption from the fact of  a search  under s. 6 after credible information  that  persons present  in the house are there for the purpose of  gambling even   though   no play may be actually  witnessed   by  the raiding party.  In the present case on the appearance of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

police,  it is admitted, the players stopped their play  and the  arrests were promptly made of all the  persons  present round  the table who had cards, counters and the money  with them. The learned Magistrate who tried the case was of the opinion that  the  offence was proved, ’because of  the  presumption since  it  was not successfully repelled on  behalf  of  the present  respondents. In the order making the reference  the learned Sessions Judge made two points: He first referred to s. 14 of the Act which provides that nothing done under  the Act  shall apply to any game of mere skill  wherever  played and he was of opinion on the authority of two cases  decided by the Madras High Court  and  one of the Andhra High  Court that  the, game of Rummy was a name of skill  and  therefore the Act did not apply to the case.  He also held that  there was  no  profit  made by the members of the  club  from  the charge for the use of cards and the, furniture and the  room in  the club by the players and therefore the definition  of common  gambling  house’  did not  apply to  the  case.   In accepting  the  reference, the learned single Judge  in  the High  Court  did  not express any opinion upon the  question whether   the  game  of Rummy can be described as a game  of skill. _ He relied upon ’the second part of the  proposition which  the  Sessions Judge had suggested as the  ground  for acquitting the accused. namely, that the club was not making a profit but was only charging something as a service charge and to this we shall now refer.     Mr.  Ram Reddy relies, firstly, upon the  definition  of ’common  gambling house’ in the Hyderabad Act  and  contends that in this case there is ample evidence to prove that  the club  was making a profit or gain from the persons who  play Rummy  on its premises, pointing out at the same  time  that the  charge was But upon strangers to ’the club as  well  as members.  He also submits 392 that the presumption which arises under s. 7 of the Gambling Act has not been successfully repelled and on the other hand it  has been confirmed by the making of this charge  by  the club.     In support of his case that the club was making a profit or  gain from the game of Rummy he draws attention  to  four matters which in his opinion bring this club within the said definition.  The  first was a charge of 5  points  per  game which  according  to him was being levied on  each  game  of Rummy.  He next points out that playing cards were  supplied to the players by the club at an extra charge of Rs. 3/- and there was a sitting fee of Re. 1/- per person from those who joined  the  game.  He points out further that if  the  game continued beyond a certain time in the night, a late fee was also  levied.  In addition, he says, that  non-members  were also  required  to pay and, therefore, this club  must  fall within  the  definition  of a  common  gambling  house.   In support  he relies upon a decision of the Madras High  Court 1n re Somasundaratn Chettiar(1)     In our opinion the points made by Mr. Ram Reddy  do  not prove  this  club  to  be  a  common  gambling  house.   The presumption  under s. 7, even if it arises in this case,  is successfully  repelled by the evidence which has  been  led, even on the  side  of  the prosecution.     To begin with, there is nothing to show that a fee of  5 points  per game was being charged.  Only the  Sub-Inspector (P.W. 6) deposes to it but there is nothing to show what his source  of information was.  At the time the game was  going on, he was not present and when he arrived on the scene, the game had stopped.  The account-books of the club do not show

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

any  such  levy from the persons and in the absence  of  any entry,  we cannot hold this fact to be sufficiently  proved. As  regards  the  extra.charge for playing cards we may  say that  clubs usually make an extra charge for  anything  they Supply  to  their  members  because it  is  with  the  extra payments  that the management of the club is carried on  and other  amenities  are provided.  It is commonly  known  that accounts  have to be kept, stocks have to be  purchased  and maintained for the use of the members and service is  given. Money is thus collected and there is expenditure for running of  each section of the establishment.  Just as some fee  is charged for the games of billiards, ping-pong, tennis,  etc, an extra charge for playing cards (unless it is extravagant) would not show that the club was making a profit or gain  so as  to  render  the  club  into  a  common  gambling  house. Similarly, a late fee is generally charged from members  who use the club premises  beyond  the scheduled time.  This  is necessary, because the servants of the (1) A I R. 1948 Mad. 264. 393 club  who  attend  on  the members have  to  be  paid  extra remuneration by way of overtime and expenditure on light and other  amenities has to be incurred beyond the  club  hours. Such  a charge is usual in most of the clubs and we can take judicial notice of the fact.      This leaves over for consideration only the sitting fee as  it is called.  In this connection, the account books  of the  club have been produced before us and they show that  a fee  of 50 paise is charged per person playing in  the  card room.   This to our opinion is not such a heavy charge in  a Members’  Club  as to be described as an attempt to  make  a profit  or  gain  for the club. Of course, if  it  had  been proved that 5 points per game were charged, that might  have been  considered  as an illegal charge sufficient  to  bring the club within the definition.  As we have already  pointed out, the levy of that charge has not been proved. The  other charges which the club made do not establish that this was a common gambling house within the definition.      It is submitted by Mr. Ram Reddy that non-members  also play  and further that the club provides no other  amenities besides  making it possible for members and non-members   to play  the game of Rummy on the premises.  We think that  the evidence  on this part is not quite satisfactory.  No  doubt one  witness has stated that chess is also played, but  that does  not  prove  that amenities other than card games   are catered for by the club. But on the other side also there is no definite evidence that there is no other amenity in  this club but the playing of card games. In these  circumstances, to  hold that the club does not provide other  amenities  is tantamount  to making a conjecture which is not  permissible in a criminal case.      We are also not satisfied that the protection of s.  14 is  not available in this case. The game of Rummy is  not  a game entirely of chance like the ’three-card’ game mentioned in  the Madras case to which we were referred.   The  ’three card’ game which goes under different names such as ’flush’, ’brag’ etc. is a game of pure  chance.  Rummy, on the  other hand,  requires  certain amount of skill because the fall of the  cards has to be memorised and the building up of  Rummy requires  considerable  skill  in holding   and   discarding cards.  We cannot, therefore, say that the game of Rummy  is a game of entire chance.  It is mainly and preponderantly  a game of skill.  The chance in Rummy is of the same character as the chance in a deal at a game of bridge. In fact in  all games in which cards are shuffled and dealt out, there is an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

element  of  chance,  because the distribution   of   the  I cards  is not according to any set pattern but is  dependent upon  how the cards find their place in the  shuffled  pack. From  this alone it cannot be said that Rummy is a  game  of chance and there 394 is,  no  skill  involved in it.  Of  course,  if  there   is evidence  of gambling in some other way or that the owner of the  house or the club is making a profit or gain  from  the game  of  Rummy  or any other game played  for  stakes,  the offence  may be brought home.  In this case, these  elements are  missing and therefore we think that the High Court  was right in accepting the  reference it did. The appeal fails and is dismissed. Y.P.                                       Appeal dismissed. 395