TENALI NATIONAL CLUB Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The constitutionality of Section 5 of the Andhra Pradesh (Andhra Area) Gaming Act, 1930 hereinafter called the Act is challenged in this writ (petition on the ground that it offends Article 14 of the Constitution.

(2.) The petitioner is a Club represented by its Secretary. The State Government, the Deputy Superintendent of Police, Inspector of Police and Sub-Inspector of Police are respondents 1 to 4 respectively. The 2nd respondent aided by his subordinates raided the club in the midnight of 5/05/1972, entered the Card rooms made a search and seized cash, playing cards and tokens under a mediatornama. On the next day the 4th respondent filed a charge-sheet against some of the members including the Secretary under Sections 8 and 9 of the Act in C. C. Nog. 301 to 305 of 1972 before the Judicial Second Class Magistrates court, Tenali. This writ petition has been filed challenging this raid. The trial of the criminal cases has been stayed by this court pending the writ petition. The principal reliefs sought by the petitioner are (1) to declare that Sections 5 and 13 of the Act are ultra virus of the Constitution and (2) to restrain the respondents from carrying out any further search, seizure or arrest and from interfering with the lawful activities of the petitioner Club. The respondents in their counter save a detailed description of what happened before and at the time of the raid and denied that Sections 5 and 13 are ultra virus. They asserted that when an activity comes within the mischief of the Act, they had every right to carry out searches, seizures, arrests etc. as permitted therein.

(3.) Sri Vasudevapillai in his arguments before us has not questioned the validity of Section 13. He has concentrated all his criticism against Sub-section (1) of Section 5. His principal point is that Sub-section (1), which empowers both salaried Magistrates as well as Police Officers to issue warrants to any Police Officer not below the rank of a. Sub-Inspector to make searches and seizures of gaming houses, is hit by Article 14. Magistrates, who discharge their functions in a judicial manner and Police Officers whose function is to conduct executive duties like maintaining law and order are poles apart. By no stretch of imagination could they be placed in the same class or category. Placing both such officers, who discharge totally different functions from different perspectives, in the same category is wholly repugnant to the principle and policy of Article 14. Further, there are no guidelines in it stating as to who should exercise the powers of issuing the warrants in what circumstances. Thus, the power delegated to the officers is uncanalized and excessive. The whole scheme of Sub-section (1) is basically unreasonable. He has further submitted that Sub-section (1) has been very inartistically worded leaving scope for any amount of ambiguity. When the provision is shrouded in ambiguity, it should be so construed as to safeguard the right of citizens as against arbitrary action of the State. To further strengthen his argument in this connection, he has referred to the presumption contained in Section 9 that any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary is proved, to have been there for the purpose of gaming. When subsection (1) of Section 5 is read and enforced in the light of this presumption, it would result in conferring arbitrary powers on the authority which gives the warrant or the officer who conducts the raid. Learned counsel has very much emphasized on the provision in Section 11-A which enables the Magistrate, who tries the case, to direct any portion of the fine levied under the provisions of the Act not exceeding one-half to be paid to informants and police officers as may have assisted in the detection of the offender. Thus the police officers have an inducement and it is positively unjust and unreasonable to entrust them with the responsibility of issuing such warrants. This is how Section 5 (1) has been assailed before us.