K L MANSUKHANI Vs. SENIOR INSPECTOR OF POLICE

JUDGEMENT

(1.) RULE. Respondents waive service. By consent heard forthwith.

(2.) THESE are three petitions out of a Group of petitions wherein the petitioners have prayed for quashing the proceedings in Criminal Cases launched against them or for directions not to prosecute. For the purpose of convenience out of these 3 petitions chosen, one is one from Mumbai and the others are from Thane. The facts in the Mumbai case are similar to all other cases.

(3.) BARE facts which are essential for deciding the issues in controversy need to be stated, which are as follows:-In Writ Petition No. 700 of 1998, it is the case of the petitioner, that he is conducting Video Parlours since 1987 at various places in mumbai. One such parlour was raided by the Police attached to malwani Police Station on 27th April, 1998 at about 5. 30 p. m. A case has been filed against the petitioner before the Metropolitan Magistrate's 42nd Court, borivali, being L. A. C. Case No. 788 of 1998, it is alleged by the petitioner that the prosecution case is that on 27th April, 1998 a bogus customer was sent to the Video Parlour with a view to seize the machines in the Parlour. 11 persons being associates of the petitioner were arrested with the marked currency notes which were handed over to the bogus customer. The Video Machines along with nickel counters and cash were seized. It is alleged that the petitioner is being prosecuted under the provisions of Section 4 (a) and 5 (a) of the Bombay Prevention of Gambling Act. The petitioner has been shown as an absconding accused in the said case. The petitioner has also relied on certain past events on support of his petition. It is alleged that on 11th May. 1982 the commissioner of Police, Bombay. Had issued a letter to one Shri D. P. Punitar that there was no objection for operating wall machines in public places or in the shop. Subsequent to that several persons had installed electronic machines and were carrying on the business. No entrance fee was charged to the customers who desired to play on the video Game. They were, however required to buy tokens which could not be exchanged back for money Some time thereafter, it is alleged the Police started harassing the owners of such machines on the ground that the machines were used for gambling purpose. This Court in Writ Petition No. 12453 of 1983 exarnied the machines and had restrained the Respondent from preventing the use the machines, unless found to be used for gambling. The said order was confirmed in Appeal No. 622 of 1983 by order dated 23rd August, 1983 passed by the Division Bench of this court. After that the police insisted on taking action under the provisions of the Bombay Police Act. 1951 on the allegation that no license had been taken under the said Act. Another petition came to be filed being writ petition No. 1616 of 1988 on the Original Side of this court. The contentions raised therein was that license was not necessary and was not prescribed under the Act for operating the Video games Parlour. The petition was admitted and interim relief was granted restraining the respondents, their agents and servants from in any manner directly or indirectly seeking to restrain or preventing the petitioners from operating the machines. It is then alleged that in spite of all these orders the Police started instituting prosecutions against the owners of Video Parlours under Section 4 (a) and 5 of the Bombay prevention of Gambling Act. Forty petitions came to be filed which were disposed of by a common judgment dated 22nd October, 1992 in criminal Writ Petition No. 580 of 1998 (by Dudhat J. ). On the facts of the case it is contented by the petitioners that there is no offence committed under the Bombay Prevention of Gambling Act and the Video machines operated by the customers was a game of skill. It is further contended that there is no evidence to show that the machines had been used as an instrument of gaming and hence registration of case is contrary to law. Various grounds had been taken and reference is made to various orders of this Court as well as orders of the Apex Court which shall be adverted to later on.