Andhra High Court
Pendam Narender S/O P. Venkaiah ... vs The State Of Telangana Rep By Its ... on 22 September,
2014
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION No. 23680 OF 2014
22-09-2014
Pendam narender S/o P. Venkaiah R/o Jerripothulagudam Village Chilkur Mandal
Nalgonda District Petitioner
The State of Telangana Rep by its Principal Secretary, Home Department,
Secretariat Hyderabad and 1 another..Respondents
Counsel for the Petitioner:Sri Mohd. Mumtaz Pasha
Counsel for the Respondents :GP for Home (TG)
HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION No.23680 OF 2014
ORDER:
The petitioner sought for a Writ of Mandamus declaring that the seizure effected, by the second respondent-Station House Officer, Police Station Chilkur, Nalgonda District, of the motor vehicle bearing No. AP 24 UDTR 7583 Hero Honda HF Deluxe make and trying to auction the said vehicle
in connection with case S.T.C No.206 of 2014 as arbitrary.
The petitioner who has claimed to have purchased a motorcycle on 16.04.2014 is a post graduate tudent of M. Pharmacy. As per the temporary certificate of registration issued by the Andhra Pradesh Transport Department, the name of the owner of the vehicle is shown as Sri Pendam Narender, the petitioner herein. The vehicle is under hypothecation with Sri Manikanta Auto Finance, Munagala. The invoice raised by Sri Krishna Motors, Miryalaguda, Nalgonda District, authorized dealer of Hero Honda Motor Vehicles issued on 15.04.2014 also disclosed that the vehicle is purchased by the petitioner herein. It is the case of the petitioner that on 17.07.2014, he went to his native village Jerripothulagudem Village in Chilkur Mandal, Nalgonda District and at about 04.00 PM, he went to his agricultural fields on his motorcycle and parked the said motorcycle nearby the fields and went into his agricultural fields. It appears, at about 17.00 hrs on 17.07.2014, the Sub-Inspector of Police, Chilkur Police Station raided the agricultural fields of Sri Gandu Ramayya which are located at the outskirts of Jerripothulagudem Village, where, four persons were found playing cards by betting money. The police have apprehended all the four persons, one of whom is Pendem Venkanna, the father of the petitioner herein. The police seems to have seized cash of Rs.9,820/- and the playing cards and also seized the motorcycle bearing registration No. AP 24 UDTR 7583 and four mobile phones from the spot under cover of a panchanama in the presence of mediators and brought them to the police station at 18.30 hours. A case was booked against the four offenders under Section 9(1) of the Andhra Pradesh Gaming Act, 1974. All the four persons were produced before the learned Judicial Magistrate of First Class, Kodad on 18.07.2014. On the same day, the learned Judicial First Class Magistrate, Kodad, passed orders in S.T.C No. 206 of 2014.
Since the accused have pleaded guilty for the office under Section 9(1) of the Andhra Pradesh Gaming Act, 1974, the voluntary admission of guilt made by them has been accepted and the accused A-1 to A-4 are convicted under Section 252 Cr.P.C and they are sentenced to pay a fine of Rs.250/- each and in default to suffer imprisonment for 15 days. The seized cash of Rs.9,820/- was ordered to be confiscated to the State. The playing cards and one counting paper were ordered to be destroyed after expiry of the appeal time. The unmarked property, including the motorcycle and the four mobile phones seized from the accused were ordered to be confiscated to the State after expiry of appeal time. The accused have paid the fine of Rs.250/- imposed on each of them. It appears, when the petitioner has filed an application in Crl.MP.No.2469 of 2014 in S.T.C.No.206 of 2014 seeking release of the motorcycle, the learned Judicial Magistrate of First Class, Kodad, dismissed the said petition by his order passed on 05.08.2014 setting out that when the accused were convicted and the seized property including the petition schedule property were ordered to be confiscated to the State after expiry of the appeal period and when the confiscation orders are passed in accordance with Section 8 of the Gaming Act, the said application moved by the petitioner seeking release of the motor vehicle as not maintainable. Hence, this writ petition is filed.
The Andhra Pradesh Gaming Act, 1974, henceforth referred to, for short as Act, has been made providing for punishment for gaming and for keeping the common gaming houses in the State. Section 2 defined various expression mentioned in the Act. The expression gaming has been defined
in Subsection 2 in the following words: (2) gaming means playing a game for winning of prizes in money or otherwise and includes playing a game of mutka or satta and lucky board and wagering or betting; except where such wagering or betting takes place upon the horse race-
(i) on the day on which the horse-race is to be run;
(ii) in an enclosure which the stewards controlling the horserace (or race meeting) have, with the sanction of the Government set apart for the purpose; and(iii) (a) with a licensed book maker; or (b) by means of a totalisator; But does not include a lottery;
Subsection (4) of Section 2 defined the expression Instruments of gaming as under: Instruments of gaming includes cards, dice, gaming tables, or cloths, boards or any other article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming and any winnings or prizes in money or otherwise, distributed or intended to be distributed in respect of any gaming. The expression common gaming house is defined in Subsection (1) of Section (2). Clause (2) thereof reads as under:
in the case of any other form of gaming, any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which any instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel or place, whether by way of charge for the use of such house, room, tent, enclosure, vehicle, vessel or place or instruments of gaming or otherwise howsoever;
From the above definitions, it emerges that, playing a game for winning of prizes in money attracts
the expression gaming. Similarly, playing cards and other articles used or intended to be used as a
subject or means of gaming attract the definition of instrument of gaming. A vehicle or a vessel in
which any instruments of gaming are kept or used for the profit or gain of the person owning, such
vehicle, whereby charge for the use of such vehicle or vessel attracts the definition of common
gaming house.
Section 3 has provided penalty for opening a common gaming house. It has provided imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees for the first offence and imprisonment for a term which may extend to one year and with fine which may extend to two thousand rupees for every subsequent offence. Section 4 provided for penalty for being found gaming in a common gaming house. Section 6 provided for an adverse presumption to be drawn where instruments of gaming are found at a place entered or searched under Section 5 by any police officer not below the rank of Assistant Commissioner of Police within the City of Hyderabad and the Deputy Superintendent of Police elsewhere and to presume such a place is used as a common gaming house and that the persons found therein were present there for purposes of gaming although no gaming was actually seen by the police officer or any of his assistants. Section 8 provided for instruments of gaming found at a common gaming house or on or about the person found therein, to be forthwith destroyed or forfeited upon conviction of any such person. Clause (2) of Section 8 also enabled an order to be made upon conviction, all or any of the securities for money and other articles seized, not being instruments of gaming to be sold and the proceeds thereof together with all moneys seized to be forfeited. Section 9 provided for the penalty for gaming.Therefore, all the important provision to be considered in the above case is contained in Section 8,which reads as under: Instruments of gaming etc., found in a common gaming house may be ordered to be destroyed or forfeited on conviction:-On conviction of any person for opening, keeping or using or permitting the use of a common gaining house, or gaming therein or being present for the purpose of gaming, the convicting magistrate, (i) may order all the instruments of gaming found therein or on or about the person found therein, to be forthwith destroyed or forfeited; and (ii) may order a. all or any of the securities for money and other articles seized, not being instruments of gaming, to be sold and the proceeds thereof with all moneys seized to be forfeited; or b. any part of such proceeds, and other moneys to be paid to any person appearing to be entitled thereto.
Section 8 has provided for two separate components. The first dealt with the instruments of gaming found at the common gaming house or on or about the person found therein. Upon conviction of such a person, such instruments of gaming may be ordered to be destroyed or forfeited. While the second limb provided for all or any of the securities for money and other articles seized, not being instruments of gaming to be sold and the proceeds thereof with all moneys seized to be forfeited. Therefore, for the second limb of Section 8 to come into play, the charge that must be laid against the accused should clearly bring out, that the various other articles which have also been seized at the common gaming house and or on or about the person found therein are actually the articles which are used as security for money. Then, they can be ordered to be forfeited upon being satisfied that such articles are used as security for money by the person who was convicted. Further, Clause (ii)(b) enables any part of such proceeds can be paid to any person appearing to be entitled thereto. In other words, before any articles which are seized or ordered to be forfeited, they must be specifically charged as to have been used as a security for the money by the person who is found indulging in the act of gaming and who has been convicted under Section 9 for that offence. In the instant case, the four accused persons in S.T.C.No.206 of 2014 have undoubtedly been convicted for the offences under Section 9 of the Act. But, there is no charge laid against them that the motorcycle and the four cell phones seized at the common gaming house are used by any or all of them as securities for money. In the absence of any such charge laid against the accused, the learned Judicial Magistrate of First Class, Kodad, could not have ordered them to be forfeited. Further, the motorcycle is clearly owned by the petitioner. May be it must have been found at the common gaming house which was raided by the police and further may be that the first accused is none other than the father of the writ petitioner. But, so long as no charge is laid that this motor vehicle is used as a security for money, it could not have been ordered to be forfeited by the Magistrate, under Section 8 of the Act. Admittedly, the motorcycle and the four cell phone instruments are not attracted to the definition of instruments of gaming. Hence, so long as the articles are not used as securities for money, Clause (ii) of Section 8 does not get attracted. Assuming for the sake ofargument, that after conclusion of trial, as per Section 452 Cr.P.C, the Court may make such order for the disposal, by destruction or confiscation of any property which is produced before it, but then such property should have been used for the commission of any offence. Thus, so long as the property produced before the Court is not alleged to have been used for commission of any offence, as is also required, incidentally by Section 8 of the Act, such property is liable to be delivered to the person entitled to possession thereof. Therefore, the order passed by the learned Judicial Magistrate of First Class, Kodad, on 18.07.2014 in ordering forfeiture of the motor vehicle and the four cell phones went beyond his jurisdiction. To that extent, the order passed by the learned Judicial Magistrate of First Class, Kodad on 18.07.2014 in S.T.C.No.206 of 2014, is unsustainable and accordingly, the order of the learned Judicial Magistrate of First Class, Kodad in S.T.C. No.206 of 2014, to the extent of ordering for forfeiture of the motor vehicle bearing registration No. AP 24 UDTR 7583 and the four cell phones is set-aside being unsustainable and accordingly, in order to serve the ends of justice, the second respondent-police is directed to restore them to their originalowners immediately.
To the extent indicated supra, the writ petition stands allowed. No costs.
_______________________________ NOOTY RAMAMOHANA RAO, J 22.09.2014
