TaxTMI 
TaxTMI 
2004 (12) TMI 730
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....it deems fit and proper in the circumstances of the case. 3. This Court issued Rule Nisi and in W.P. MP. No. 8332/97 on 4-4-1997 directed the respondents not to interfere with the lawful activities of the petitioner's society. 4. The petitioner is a registered society with Registration No. 114/97 and contains life members and ordinary members. The activities of the petitioner include providing cultural and recreational facilities to its members and guests such as indoor games like shuttle, gym, swimming pool, billiards, indoor auditorium, card room and open place wherein the game of tambola is conducted. It is stated that the petitioner has been carrying on its activities from the date of registration by obtaining necessary licence/ permission from the authorities. It is also stated that in so far as provision of card room by the petitioner is concerned, the petitioner is equipped with a card room for its members and guests and in the card room the petitioner permits the game of rummy only. The game of rummy is played on stake and also the game of syndicate (pool game). It is specifically averred that the petitioner does not allow any other game of cards other than the game o....
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....that on 19-5-1997 at 22-30 hours, the respondents received reliable information that members of the petitioner-society were playing 52 cards by betting money (kothamukkala play) which is an offence under Sections 3 and 4 of the A.P. Gaming Act, 1974, Act 27 of 1974, hereinafter referred to as "Act" for the purpose of convenience, and the petitioner-society is not permitted to allow its members to play the said game. It is further averred in the counter affidavit that thereupon on obtaining permission from the 3rd respondent i.e., Assistant Commissioner of Police, Vijayawada, his predecessor Sub-Inspector of Police Sri D.N.V. Prasad along with his staff raided the petitioner's society on 19-5-1997 at 22-30 hours and arrested 46 persons while they were playing 52 cards by betting money which is prohibited under the Act and in the presence of mediators the S.I. of Police seized the 52 playing cards (Kothamukka) and an amount of Rs. 19,500/- from the 46 persons and arrested them on the spot and later they were released on bail. It is further stated that on 20-5-1997 at 1.30 hours, the S.I. of Police registered Cr. No. 245/97 under Sections 3 and 4 of the A.P. Gaming Act a....
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.... sub-clause (ii) any premises or place belonging to or occupied by a club, society, or other association of persons, whether incorporated or not, which is used or kept for purposes of gaming shall be deemed to be a common gaming house. Section 2(2) of the Act defines 'gaming' as hereunder: "gaming means playing a game for winnings or 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 a horse-race- (i) on the day on which the horse-race is to be run; (ii) in an enclosure which the stewards controlling the horse-race 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; Explanation: - For the purpose of this clause- (i) wagering or betting shall be deemed to comprise the collecting or soliciting of bets, the receipt or distribution of winnings or prizes in money or otherwise in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, solic....
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.... being concerned with the care or management of a common gaming house, to prove that any person found therein as gaming for money, wager, bet or stake. Section 4 of the Act dealing with Penalty for being found in a common gaming house reads as hereunder: Whoever is found gaming or present for the purpose of gaming, in a common gaming house, shall, on conviction, be punishable with imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees, or with both. Explanation:- For the purpose of this section, any person found in any common gaming house during gaming therein shall be presumed to have been present there for the purpose of gaming. Likewise, Section 5 of the Act dealing with Power to grant warrant to enter a common gaming house, etc., reads: (1) If any salaried Judicial or Executive Magistrate, or any police officer not below the rank of an Assistant Commissioner of Police within the areas under the jurisdiction of the Commissioner of Police, Hyderabad and a Deputy Superintendent of Police elsewhere, has reason to believe that any place is used as a common gaming house, he may by his warrant give authority to any police offic....
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....avings of games of skill and the same reads as hereunder: "Nothing in this Act shall apply to games of skill only wherever played." 7. In Hari Singh v. Emperor 1907 Cri.L.J. 421 (Calcutta D.B.) a Division Bench of Calcutta High Court while dealing with Section 10 of the Gaming Act (II.B.C. of 1867) and Ring game held: "If a game is one of skill, it is not an offence under the Gaming Act; if it is a game of mere chance, it is; where the chief element of a game is one of skill, the game is not an offence, although there is an element of chance in it." In Ram Newazlal v. Emperor AIR 1914 Cal. 532 (D.B.) a Division Bench of Calcutta High Court held that the games of skill spoken of in Section 10 of Gambling Act (2 B.C. of 1867) obviously refer to games where there are two parties pitting their skill against each other and therefore a ring game kept for the profit of a man who does not play himself and does not pit his skill at all against anybody cannot fall within the exception to Section 10 of the Act. In Emperor v. Kallappa Gurappa Kotagunshi MANU/MH/0053/1939 (D.B.) a Division Bench of Bombay High Court while dealing with Section 13 of Bombay Prevention of....
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....n some observations of the learned Judicial Commissioner of Sind in AIR 1937 Sind 99 (Mahomed Hassan v. Emperor AIR (1937) Sin 99). The Court was there dealing with a game called Corinthian bagatelle, not a card game, and the observation of the learned Judicial Commissioner, on which the Sessions Judge relied, was as follows (p.99): .........no game can be a game of skill alone, that to any game in which even great skill is required, chance must play a certain part, and we think there is force in this argument. Even a skilled player in a game of mere skill may be lucky or unlucky, so that we think that even in a game of mere skill chance must play its part. But we do not think that it is necessary to decide in terms of mathematical precision the relative proportion of chance to skill when deciding whether a game is a game of mere skill within the provisions of Section 13. We are satisfied in this particular case that it cannot be said that the game before us is a game of mere skill, because it is quite clear to us that the elements of chance most strongly preponderate. We think therefore on the point that the game is a game of mere skill." It is not very clear I think that....
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....e shown that the game in question is a game of mere skill - the word "mere" in the context meaning "pure" or "unmixed". The pivotal word in the section is "mere". If this is borne in mind, it becomes plain that in order to attract the exception, the question whether a given, game that was being played in a common gaming house is a game of chance or a game of skill, or is a game in which chance or skill predominates, is rather academic, but the true test is whether the game is one of more skill, that is to say, a game of pure skill. If that be the correct criterion, by no stretch of imagination can the game of rummy be regarded as a game of mere skill. Obviously the attention of Mirza J. was not drawn to the precise language of Section 11; otherwise, the learned Judge would not have referred the question to the Bench in the way he did. In an unreported judgment in Criminal Revision Case No. 71 of 1962 (Andh.Pra) to which Mirza J. has adverted, Sharfuddin Ahmed, J. too appears to have overlooked the key word "mere" in Section 14 of the Hyderabad Gambling Act (now called the Andhra Pradesh (Telangana Area) Gambling Act No. II of 1305 ....
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.... assess the relative strength of each element with mathematical precision and it is bound to be more or less a matter of speculation. In the instant case, however, considering the fact that even at the commencement of the game, it might be possible to secure a win, the preponderance of chance is too obvious to bring it within the purview of a game of skill. Moreover, as mentioned above, the evidence on record is consistently to the effect that it is more a game of chance than of skill and on a relative assessment it can be safely concluded therefrom that it is 75 per cent a game of chance and 25 per cent of skill". While the ultimate conclusion of Sharfuddin Ahmed, J. that "rummy" does not fall within the category of exempted games, is obviously right, we are of the opinion that the test adopted by the learned Judge is not the correct one. As we have indicated above, the truce test if whether the game in question is a game of mere skill, that is, pure skill, or to put it in a different form, whether the element of chance, if any, is so slight that the game can be said to be a game of pure skill. The point to note is that the test whether sill or chance is the domi....
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....e will now refer to some of this illustrative cases cited at the Bar. In an early English case in Jenks v. Turpin (1884) 13 QBD 505 in considering the question whether the game of "baccarat" is a game within the category of games of mere skill, Hawkins J. observed as follows at page 524. "The unlawful games, then, now are, ace of hearts, pharaoh, basset, bazard, passage, roulet, every game of dice except backgammon, and every game of cards which is not a game of mere skill, and, I incline to add, any other game of mere chance. Does baccarat come within this category? The description of the game given by Mr. Russell satisfies me that it does. It is a game of cards. It is a game of chance; and though, as in most other things, experience and judgment may make one player or banker more successful than another, it would be a perversion of words to say it was in any sense a game of mere skill. It is therefore, in my opinion, an unlawful game within the meaning of the statute." In Dalton v. Adelphi Club Ltd. (1938) All.E.R. 556 in repelling the contention that the game of "stud poker" is not a game of mere chance but is a game in which skill predominates....
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....ey 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, pingpong, 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 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 wer....
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....7 it was held at para 16 as hereunder: "It is thus obvious that the game of Rummy is not a game of mere chance, but a game which is preponderantly a game of skill. It may include an element of chance and it would nevertheless be a game of 'mere skill" within the meaning of Section 15 of A.P. Gaming Act, 1974. Thus, the applicability of Sections 3 and 4 of A.P. Gaming Act, 1974, is excluded insofar as it relates to the game of Rummy. Once it has to be held that the provisions of the Act are not applicable, whatever may be the stakes involved in playing such game would not be of any consequence." In Twin Cities Cinema Cultural Centre (Formerly Twin Cities Club) v. Commissioner of Police 2002(5)ALT805 it was held as hereunder: "The prayer in the Writ Petition is as follows: ".........to issue writ of mandamus or any other appropriate writ, order or direction and direct the respondents to forbear from interfering/obstructing the petitioner Cultural Centre from conducting the card room where the members and guests of the petitioner Cultural Centre are allowed to play the game of rummy with stakes/syndicate (13 card game)." Therefore, the police....
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....ned Sessions Judge made two points: He first referred to Section 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 of the authority of two cases decided by the Madras High Court and one of the Andhra Pradesh High Court that the game of Rummy was a game of skill and therefore the Act did not apply to the case". This Court held the game of Rummy to be a game of mere skill on the following reasoning (at p.828 of AIR): "We are also not satisfied that the protection of Section 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 memorized 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 ga....
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....lt of the race. The better has the opportunity to exercise his judgment and discretion in determining the horse on which to bet. The pari-mutuel method or system of betting on a horse race does not affect or determine the result of the race. The pari-mutuel machine is merely a convenient mechanical device for recording and tabulating information regarding the number and amount of bets (Utah State Fair Ass'n v. Green (supra)), and from this information the betting odds on the horses entered can be calculated and determined from time to time during the process of betting. The recording and tabulating of bets could be done manually by individuals, but the pari-mutuel machine is more convenient and faster method. The fact that a better cannot determine the exact amount he may win at the time he places his bet, because the odds may change during the course of betting on a race, does not make the betting a mere game of chance, since the better can exercise his reason, judgment, and discretion in selecting the horse he thinks will win. Horse racing, like foot racing, boat racing, foot ball and baseball, is a game of skill and judgment and not a game of chance. Utah State Fair Ass'....
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....owise resorted to therein. Such games are not prohibited by the statute. But there are other games (in) which, although they call for the exercise of much skill, there is an intermingling of chance. The result depends in a very considerable degree upon sheer hazard. These are the games against which the statute is directed, and horse racing is not included in that class." In D. Krishna Kumar v. State of A.P. 2002(5)ALT806 it was held that the game of rummy is mainly and preponderantly a game of skill and Sec. 15 of the Act would come into operation and so none of the Sections 2 to 14 of the Act apply to the game of rummy wherever played. In the decision referred (6) supra, no doubt the Madras High Court held that it does not follow that because a club also provides for games like tennis, it ceases to be a "common gaming house" if it otherwise satisfies the conditions found in Section 3 of the Madras Gaming Act. It is no doubt true that the Division Bench of this Court in the decision referred (9) supra had not referred to the prior precedents. But however, the view expressed by the Division Bench is in conformity with the ratio laid down by the Apex Court in the dec....