SEKAR REPORTER

Court News from Madras High Court

To prevent the frequent inspections of Clubs by the Police on the pretext of suspicion that Club and its members indulging in illegal activities, His Lordship Hon’ble Mr.Justice Krishnan Ramasamy has given certain directions to the State/Police since such inspections and monitoring the activities through CCTV would amount to violation of right to privacy and directed that inspections/rides should be conducted by any police Officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police, or a Police Officer not below the rank of Sub Inspector of Police through warrant issued by any Judicial Magistratre or Deputy Superintenent of Police or Assistant Commissioner of Police.

by ·

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED:  04.02.2022

 

CORAM

 

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

 

W.P.Nos.26397 & 27246 of 2017

and W.M.P.No.28058 of 2017

 

M.M.Nagar Sports & Recreation Centre,

Represented by its Secretary,

P.Kanniappan,

No.10/27, 1st Floor, Singaravelan Street,

Maramalai Nagar,

Kancheepuram District.                       …Petitioner in W.P.No.26397 of 2017

 

M/s.Vadapalani Five Star Sports Club,

Represented by its Secretary,

Mr.L.Subhash,

S/o.Logaiyaa,

No.84-1A, Seepuranam Avenue,

Arcot Road, Chennai – 600 026.     …Petitioner in W.P.No.27246 of 2017

 

Vs.

 

1.The Superintendent of Police,

Kancheepuram District.

 

2.The Deputy Superintendent of Police,

Vandalur Sub-Division,

Kancheepuram District.

 

3.Inspector of Police,

Maraimalai Nagar Police Station,

Maraimalai Nagar,

Kancheepuram District.

 

4.The District Registrar (Admin),

District Registrar Office,

Chengalpattu,

Kancheepuram District.

(R4 impleaded vide order dt. 20.03.2018 in W.M.P.No.7829 of 2018)

 

5.The Director General of Police,

Dr.Radhakrishnan Salai Road,

Mylapore, Chennai – 600 004. …Respondents in W.P.No.26397 of 2017

(R5 suo moto impleaded vide order

dt.29.11.2021 in W.P.No.26397 of 2017)

 

1.The Commissioner of Police,

Office of the Greater Chennai City Commissioner,

Vepery, Chennai – 600 003.

 

2.The Deputy Commissioner of Police,

T.Nagar Police Range,

T.Nagar, Chennai – 600 017.

 

3.The Assistant Commissioner of Police,

Office of R-8, Vadapalani Police Station,

Vadapalani, Chennai – 600 026.

 

4.The Inspector of Police,

R-8 Vadapalani Police Station,

Vadapalani, Chennai – 600 026.

 

5.The Director General of Police,

Dr.Radhakrishnan Salai Road,

Mylapore, Chennai – 600 004. …Respondents in W.P.No.26397 of 2017

(R5 suo moto impleaded vide order

dt.29.11.2021 in W.P.No.27246 of 2017)

 

PRAYER in W.P.No.26397 of 2017 : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, forbearing the respondents from interfering in anyways with the day-to-day affairs and recreational activities of the petitioner society and its members at petitioner’s premises situated at No.10/27, 1st Floor, Singaravelan Street, Maramalai Nagar, Kancheepuram District.

 

PRAYER in W.P.No.27246 of 2017 : Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, forbearing the respondents and his subordinates or any other official tracing power under them, from any manner interfering or disturbing with day to day affairs of the society and also from harassing its members/guests to avail the facilities for playing indoor games of chess, carom, rummy 13 cards, and table tennis, not involving any element of gambling at the premises bearing No.84-1A, Sampuranam Avenue, Arcot Road, Chennai.

For Petitioner               :  Mr.K.M.D.Muhilan

(in both WPs)                Government Advocate

 

For Respondents                     :  Mr.M.Shahjahan

(in both WPs)                Special Government Pleader

 

COMMON ORDER

Writ Petition in W.P.No.26397 of 2017 has been filed, praying to issue a Writ of Mandamus, to forbear the respondents from interfering in anyways with the day-to-day affairs and recreational activities of the petitioner society and its members at petitioner’s premises situated at No.10/27, 1st Floor, Singaravelan Street, Maramalai Nagar, Kancheepuram District.

  1. Writ Petition in W.P.No.27246 of 2017 has been filed, praying to issue a Writ of Mandamus, to forbear the respondents and his subordinates or any other official tracing power under them, from any manner interfering or disturbing with day to day affairs of the society and also from harassing its members/guests to avail the facilities for playing indoor games of chess, carom, rummy 13 cards, and table tennis, not involving any element of gambling at the premises bearing No.84-1A, Sampuranam Avenue, Arcot Road, Chennai.

 

  1. The brief facts in common of both Writ Petitions, are that both the petitioners, viz., M/s.M.M.Nagar Sports & Recreation Centre and M/s.Vadapalani Five Star Sports Club were registered as per the provisions of the Tamil Nadu Societies Registration Act, 1978 and functioning by following rules and regulations and the provisions of the Tamil Nadu Gaming Act, 1930 without involving in any unlawful activities. Both the petitioners clubs were formed under a common intention to promote social activities and intellectual advancement amongst its members, including indoor sports/games, namely, chess, carom, table tennis and playing cards (13 card rummy without stakes), etc.. Further, stringent restrictions are imposed even on members for maintaining discipline and harmony in the petitioners clubs. From the date of establishment to till date, there is no complaint from the respondents and has been complying with all the conditions under various acts and rules thereunder.

 

  1. While so, the grievance of the petitioners is that the respondents/police, has been interfering with the day-to-day affairs of the petitioners clubs under the guise of inspection and due to which, the petitioners clubs and its members are continuously being disturbed by the respondents/police. In such circumstances, finding no other option, the petitioners approached this Court by way of presenting these Writ Petitions.

 

  1. The learned counsel appearing for the petitoners would submit that the petitioners have been running the recreation centre/sports club as per rules and regulations for the welfare of the members and they used to arrange indoor games of skill, viz., chess, carom, rummy 13 cards and table tennis, etc., while so, the police officials often interfering with peaceful functioning of the petitioners Sports Clubs activities including the playing of indoor games under the pretext of suspicion and thereby causing embarassment to the members of the petitioners clubs who did not involve in any unlawful or immoral or prohibited activies and many of them are prominent persons belonging to different walks of life, and frequent inspection by the respondents/police would cause damage to their reputation in the minds of public, which amounts to violation of fundamental rights guaranteed under Articles 19(1)(c) and 21 of the Constitution of India.

 

  1. According to the respondents/police, the present Writ Petitions have been filed only on apprehensions that the police authorities may take action against the petitioners clubs despite no illegality takes place. The respondents/police never enter into the petitioners clubs without any complaints thereof and only if any complaints are received against the petitioners clubs regarding illegal or immoral activities, the respondents/police are empowered to take stringent action.

 

  1. On earlier occasion, when this matter came up for consideration, this Court passed the following interim order on 21.11.2021:

“2. When the matters are taken up for hearing on the last occasion, the learned Government Advocate for the respondent-Police was directed to verify whether interference of the Police could be stopped in the day-to-day affairs of the club activities of the petitioner, unless and otherwise, the same is required in accordance with law.

“3.Today, when the matter is taken up, the learned Government Advocate for the respondent-Police submitted that the respondent-Police are not often interfering with the day-to-day affairs of the petitioner-Club, only, any complaint is received against any members of the petitioner-Club stating that they are indulging in playing Rummy Cards to punt off money, the respondent-Police used to enter into the premises of the Petitioner-Club for taking legal action, and in the absence of any complaint, there is no necessity for the Police to enter the club.

“4. Refuting such contention, the learned counsel appearing for the petitioner submits that, except few members, who are alleged to have been involved in playing cards, most of the members are visiting the Club only for recreational purpose, and if the respondent-Police is entering into the petitioner- Club for taking action against few of them, the other members, who are regularly visiting the Club are under fear and disturbance, as the presence of the Police in the Club would certainly cause scuffle between the members of the petitioner- Club and the Police.

“5. In view of the above, this Court, in order to give quietus to the said issue, which is also being faced by other Clubs/recreational centers functioning throughout the State of Tamil Nadu, and to strike a balance between the Club and the Police, suggests, as to why cannot a CCTV camera be installed at the facade of the petitioner-Club, or at the entrance of the Club, or otherwise, as decided by the petitioner-Club, without affecting privacy of the Club members, so that, in case, the respondent-Police intends to inspect the Club/Recreational Centre based on any complaint received against any members, on account of their involvement in such immoral activities, can very well take action against them, by monitoring through the CCTV Camera installed at the entrance itself, without, they being entering into the premises of the Petitioner-Club, so that the other members, who are regularly visiting the Club shall not be put to panic or disturbance. By adopting such course, both the immoral or illegal activities, if any, takes place in the Clubs could be deducted and prevented and the relationship between the Police and Club members would also not get affected.

“6.Therefore, this Court, so as to find out whether the suggestion putforth by this Court, could be implemented and to find out whether there is any implications involved in implementing such option, is indispensably in need of the assistance of Director General of Police, for which purpose, this Court suo motu impleads the Director General of Police, Dr.Radhakrishnan Salai Road, Mylapore, Chennai – 600 004, as one of the party respondent to the proceedings, who shall file a concrete report with regard to the suggestion putforth herein, based on which, this Court would pass appropriate orders in the Writ Petitions filed before this Court, which would also apply to all other Club/Recreational centre functioning in the State of Tamil Nadu.

“7. Mr.K.M.D.Muhilan, learned Government Advocate, accepts notice on behalf of the Director General of Police, and the learned Government Advocate is directed to give appropriate instructions to the Director General of Police, who shall file the report as sought for by this Court on the next hearing date.”

 

  1. Pursuant to the above direction, the Director General of Police/5th respondent has filed a detailed common Report, dated 15.12.2021. It is relevant to extract paras 4 to 5 of the Report for understanding the stand taken by the 5th Respondent, which read as under:

“4. In compliance with the present direction of this Hon’ble Court to highlight the“implication involved in implementing” the suggestion put forth by this Hon’ble Court, the following is placed on record, for the kind consideration of this Honourable Court;

  1. It is submitted that the installation of CCTV cameras in the clubs/recreation centre etc., will be of paramount use and assitance for the police to investigate, provided, the CCTV cameras are installed in all the places, including the playing area and corridors, except the restroom/toilet, since in numerous cases, the offence of gambling takes place in an area which is not covered by the CCTV cameras.
  2. It is submitted that while the suggestion put forth by this Honourable Court for all the clubs/recreation centre to have an earmarked room/space for the purpose of the Police viewing the live/recorded CCTV footage, instead of physically entering the club can be implemented to a certain extent, the same cannot be implemented in all the cases, since in most cases the offender will either try to escape from the scene of occurence or destroy the evidence after moving to an area not covered under CCTV.
  3. It is submitted that depending on the circumstances and in fit cases, the police can initially view the footage of the CCTV instead of entering the cubs/recreation centre, however, if circumstance warrant, the police will neccesarily have to enter the clubs/recreation centre.
  4. It is submitted that while all endeavours can be made for the police not to enter the clubs/recreation centre, the same cannot be implemented in all cases, since the same purely depends on the circumstances prevailing in each case.
  5. It is submitted that in the light of above submission, this Honourable Court may be pleased to direct all the clubs/recreation centre to install CCTV cameras in all the places, including the playing area and corridors (expect the restroom/toilet), so that the necessity to enter the clubs/recreation centre is reduced and only if circumstances warrant, the police enters the clubs/recreation centre. Further, all the clubs/recreation centres may be directed to install CCTV of good vision quality with a minimum of one month footage storage capacity and furnish an electronic copy of the same as and when requied by the investigating agency.”

 

  1. The petitioners has filed objections to the above Report filed by the Director General of Police, Tamil Nadu, which read as under:

“3.  It is submitted that as per 4(A), the CCTVs were sought to be installed in all the places of the club, including the playing area and corridors, except the restroom/toilet, on apprehension that the gambling occurs in areas which are not covered by the CCTV cameras.  Further in 4(B) the fifth respondent had contended that even providing places for the purpose of the police to view CCTV footages in a club will not provide any aid to control the gambling as the offenders will move away.  Further in 4(C) and (D) it is contended by the fifth respondent that the said arrangement of installation of CCTV cameras will not serve the purpose and police will enter the clubs/recreation centre if circumstances warrant.

4.It is respectfully submitted that even in the orders of this Hon’ble Court in the other private Writ Petitions filed previously this Hon’ble Court had while issuing the guidelines had this Hon’ble Court had protected the Right of Privacy by holding that though the respondent police are entitled to take action in the event of illegality that may not vest the right upon them to disturb the association frequently under the guise of inspection without there being any reliable information as to the illegal activities.

5.It is respectfully submitted that members of the clubs/recreation centres, who visit the clubs for various recreational activities cannot be put to continuous watch under CCTV cameras as their Right of Privacy gets infringed. The fifth respondent cannot insist upon installing of CCTV cameras covering the entire club as there are many recreation activities in various clubs (since the present issue is sought for giving quietus on a larger interest), which does not in any way involve gaming activities. Therefore, the prayer of the fifth respondent to install CCTV footages throughout the club may go against the interest of private members.

6.It is submitted that a club member who visits the club for recreational activity cannot be constantly monitored and his presence cannot be continuously recorded on mere apprehension of the police that there are chances for gambling, unless there is a warranting situation or concrete proof. It is submitted that if the presence/activities of the members are monitored throughout their stay in the club (except upon entering/recorded at the time of entrance), this may cause an embarrassment amongst them and force them to stay away. Therefore this may not be in the best interest of the clubs/recreational centres as well as the members.

7.It is submitted that this Hon’ble Court even during the previous orders had held that the police are entitled to take action in the event of illegal activities, in fact section 5 of the Gaming Act strikes a balance at this point. The section contemplates that a police officer not below the rank of Deputy Superintendent of Police to issue warrant to the officer not below the Sub Inspector of Police, if there are reasons to believe any  illegal activity. Therefore even the appraisal about credibility of information about the illegal activity is vest with the officer in the cadre of Deputy Superintendent of Police and as per the recent Bill proposed for amendment in the said Act in 2021, the said power is vested only with the Deputy Superintendent or the Assistant Commissioner of Police as the case may be.

8.It is respectfully submitted that therefore under the pretext of an apprehension about the gaming activities, the police authorities cannot seek to monitor the entire activities in clubs/recreation centres. Therefore the entry of the members can always be recorded and in the event of any credible information the police can identify the persons who had entered the club to secure the miscreants in the event of the information found to be true.”

 

  1. At the outset, in normal circumstances when a Club or recreation centre is functioning lawfully by strictly adhering to the rules and regulations and functioning within the framework of law without resorting to illegal activities, there should be no interference by the police and it is not permissible for the police to enter the club premises as a routine measure. However, if the police authorities have specific information or reasonable doubt that the club or its members indulged in illegal activities and their activities are not in accordance with the law and in violation of the provisions of the Public Gambling Act, 1867/Tamil Nadu Gaming Act, 1930, they can very well enter the club premises, conduct investigation, interrogate the persons who involved in such illegal activities and take appropriate action on merits as per law.

 

  1. But the grievance of the petitioners is that under the pretext of suspicion and the information received that the members of the club are indulging in illegal gaming activities, the police irrespective of their rank even below the rank of Sub Inspector, time and again, entering the club premises and conducting the raids and thereby causing much inconvenience and embarassment to the members of the clubs, among whom, many of the members are respectable and prominent persons. Therefore, in order to give a quietus to this issue and to strike a balance between the Club and police, this Court suggested for installation of CCTV camera at the facade of the club without affecting privacy of the Club members and if any information received by the police regarding involvement of immoral activities by the members of the Club, the police can very well take action against such members by monitoring through CCTV camera installed at the entrance itself without entering into the premises of the Club. Accordingly, the Director General of Police has been directed to file report in this regard.

 

  1. On a perusal of the report filed by the Director General of Police/5th respondent extracted above, it would indicate that the 5th Respondent has taken a stand that all Clubs/Recreation centres may be directed to install CCTV cameras in all the places, including the play area and corridors (except the restroom/toilet) since in most cases the offender will either try to escape from the scene of occurrence or destroy the evidence after moving to an area which are not covered under the CCTV. The report further states that there is no doubt in installing the CCTV cameras in all the clubs/recreation centres will be of a paramount use and assistance for the police to investigate into complaints, provided that, CCTV cameras with good vision quality and with a minmum of one month footage storage capacity, should be installed in all the places including the play area, corridors, except the restrooms/toilets since, in numerous cases, the offence of gambling takes place in an area which is not covered by the CCTV cameras.

 

12.This was objected to by the petitioners, stating that the members of the clubs/recreation centres who vist the clubs for various recreational activities cannot be put into continuous watch under CCTV cameras as their ‘Right to Privacy’ gets infringed. Moreover, on mere apprehension of the police that there are chances for gambling is not appropriate to monitor the presence/activities of the members throughout their stay in the clubs, this would go against the interest of members of the club.

 

  1. Nine Judge Bench of the Supreme Court in the celebrated judgment in the case of “Justice K.S.Puttasamy & Anr vs Union of India & Ors” repoed in (2017) 10 SCC 1 has expanded and broadened the horizon of Article 21 of the Constitution to bring within its ambit the ‘Right to privacy’. The present Writ Petition poses a question that warrants a conclusive finding with regard to resolving the the conflict between the State’s right for surveilance and monitoring and the individual’s right to privacy.

 

  1. The petitioners before this are private clubs/recreation centres who offer various facilities to their members including food and dining, walking and jogging area, swimming pool, outdoor/indoor sports, bar for consumption of alcohol, smoking area and play area. The persons visiting these clubs as the name suggests, go there for recreation or relaxing themselves. A few persons play card games like rummy, poker etc for time pass or as a game of skill and a very few attempt to play these games with punt money/stakes involved. This act of the last category of persons who play these games by betting/wagering might attract the application of the Tamil Nadu Gaming Act, 1930 and the Public Gambling Act, 1867.

 

  1. For understanding the intent and purport of both these pre-constitutional legislation which is more than a century old is extracted below:

Tamil Nadu Gaming Act, 1930

(As Amended by The Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021)

(Received the assent of the Governor on the 23rd april 1930, and that of the Governor-General on the 1st June 1930; the assent of the Governor-General was first published in the Fort St.George Gazette if the 24th June 1930.)

An Act to provide for the punishment of gaming and the keeping of common gaming houses in the State of Tamil Nadu.

 

WHEREAS it is expedient to make provision for the punishment of gaming and the keeping of common gaming-houses in the [State of Tamil Nadu]; and whereas the previous sanction of the Governor-General has been obtained to the passing of this Act; It is hereby enacted as follows:-

 

  1. This Act may be called the[Tamil Nadu]Gaming Act, 1930.
  2. Extent.- This Act extends to the whole of the[State of Tamil Nadu
  3. Definition.- In this Act, unless there is anything repugnant in the subject or context,-

(a) “common gaming-house” means any house, room, tent, enclosure, vehicle, vessel, cyber cafe or any place whatsoever in which instruments of gaming are kept or used for the profi t or gain of the person owning, occupying, using or keeping such house, room, tent, enclosure, vehicle, vessel, cyber cafe or place, whether free of cost or by way of charge for the use of instruments of gaming or of the house, room, tent, enclosure, vehicle, vessel, cyber cafe or the place; and includes any house, room, tent, enclosure, vehicle, vessel, cyber cafe or place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming;

(b) “gaming” does not include a lottery, but includes any game involving wagering or betting in person or in cyber space.

Explanation.— For the purposes of clause (b) and section 3-A, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise, including through electronic transfer of funds, in respect of any wager or bet, or any act which is intended to aid, induce, solicit or facilitate wagering or betting or such collection, soliciting, receipt, or distribution;

(c) “Government” means the State Government;

(d) “instruments of gaming” includes cards, dice, gaming table or cloth, board, computers, computer system, computer network, computer resource, any communication device or any other article used or intended to be used as a subject or means of gaming, any document or electronic record, 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, including through electronic transfer of funds, distributed or intended to be distributed in respect of any gaming;

(e) the words ‘computer’, ‘communication device’, ‘computer network’, ‘computer resource’, ‘computer system’, ‘cyber cafe’, and ‘electronic record’ used in this Act shall have the respective meanings assigned to them in the Information Technology Act, 2000.

3-A. Wagering or betting in cyber space.— (1) No person shall wager or bet in cyberspace using computers, computer system, computer network, computer resource, any communication device or any other instrument of gaming by playing Rummy, Poker or any other game or facilitate or organize any such wager or bet in cyberspace.

(2) Whoever wagers or bets in cyberspace using computers, computer system, computer network, computer resource, any communication device or any other instrument of gaming by playing Rummy, Poker or any other game or facilitates or organizes any such wager or bet in cyberspace, shall be punished with imprisonment which may extend to two years or with fine not exceeding ten thousand rupees or with both.”.

 

  1. Whoever-

(a) being the owner or occupier or having the use of any house, room, tent, enclosure, vehicle, vessel or place, opens, keeps or uses the same for the purpose of gaming –

(i) on a horse-race, or

(ii) on the market price of cotton, bullion or other commodity or on the digits of the number used in stating such price, or

(iii) on the amount or variation in the market price of any such commodity or on the digits of the number used in stating the amount of such variation, or

(iv) on the market price of any stock or share or on the digits of the number used in stating such price, or

(v) on the number of registration or on the digits of the number of registration of any motor vehicle using a public place, or

(vi) on any transaction or scheme of wagering or betting in which the receipt 01 distribution of winnings or prizes in money or otherwise is made to depend on chance; or

(b) being the owner or occupier of any such house, room, tent, enclosure, vehicle, vessel, [cyber cafe] or place knowingly or willfully permits the same to be opened, occupied, kept or used by any other person for the purpose of gaming on any of the objects aforesaid, or

(c) has the care or management of, or in any manner assists in, conducting the business of, any such house, room, tent, enclosure, vehicle, vessel, [cyber cafe] or place opened, occupied, kept or used for the purpose of gaming on any of the objects aforesaid, or

(d) advances or furnishes money for the purpose of gaming on any of the objects aforesaid with persons frequenting any such house, room, tent, enclosure, vehicle, vessel, [cyber cafe] or place,

[shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees, but in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court –

(i) such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees for a first offence;

(ii) such imprisonment shall not be less than six months and such fine shall not be less than seven hundred and fifty rupees for a second offence; and

(iii) such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees for a third and subsequent offences].

(2) Whoever is found in any house, room, tent, enclosure, vehicle, vessel or place referred to in sub-section (1), gaming on any of the objects specified in that sub-section, or present, for the purpose of gaming on any such object shall be punishable with imprisonment which may extend to one month or with fine which may extend to five hundred rupees or with both.

Any person found in any such house, room, tent, enclosure, vehicle, vessel or place Coring any gaming therein on any of the objects specified in sub-section (1) shall be presumed, until the contrary is proved, to have been there for the purpose of gaming on such object.

(3) Whoever is found gaming on any of the objects specified in sub-section (1) in any public street or thoroughfare or in any place to which the public have or are permitted to have access shall be punishable with imprisonment which may extend to three months or with fine which may extend to three hundred rupees, or with both.

4A. Presumption of offence.- (1) Where in any trial of an offence punishable under sub-section (1) of section 4, it is proved that-

(i) slips containing certain digits showing the market price of cotton, bullion or other commodity; or

(ii) accounts which appear to relate to cash received or disbursed for the purpose of wagering or betting on the market price of cotton, bullion or other commodity; or

(iii) news-papers containing publication of such price,

are found in any house, room, tent, enclosure, vehicle, vessel or place, it shall be presumed unless the contrary is proved that such house, room, tent, enclosure, vehicle, vessel or place is used for the purpose of gaming within the meaning of sub-section (1) of section 4.

(2) Where in any trial of an offence punishable under sub-section (2) or subsection (3) of section 4, it is proved that the accused person is found in possession of any of the materials specified in sub-section (1), it shall be presumed unless the contrary is proved that the accused has committed the offence of gaming within the meaning of sub-section (2) or sub-section (3), as the case may be, of section 4.]

5.(1) If any Judicial Magistrate [or any police officer not below the rank of Deputy superintendent of Police or Assistant Commissioner of Police, as the case may be], has reason to believe that any place is used as a common gaming-house/ he may, by his warrant, give authority to 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, any such place, and to arrest all persons found therein and to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein, and to search all parts of such place and also persons found therein.

(2) Any Police Officer having power to issue a warrant under sub-section (1) may, instead of doing so, himself exercise all or any of the powers exercisable under such warrant.

6.Any cards, dice, gaming table or cloth, board [electronic record, computers, computer system, computer network, computer resource or any communication device] or other instruments of gaming found in any place entered or searched under the provisions of tire last preceding section, or on any person found therein shall be evidence that such place is used as a common gaming-house, and that the persons found therein were there present for the purpose of gaming, although no play was actually seen by the Police Officer or any of his assistants.

  1. It shall not be necessary, in order to convict any person of keeping a common gaming-house or of being concerned in the management of any common gaming-house, to prove that any person found playing at any game was playing for any money, wager, bet or stake

8.Whoever opens, keeps or uses, or permits to be used any common gaming-house, or conducts or assists in conducting the business of any common gaming-house or advances or furnishes, money for gaming therein, shall be liable on conviction to fine house, not exceeding [ten thousand rupees], or to imprisonment not exceeding [two years], or to both.

9.Whoever is found gaming or present for the purpose of gaming in a common gaming-house shall, on conviction, be liable to fine not exceeding [five thousand rupees] or to, imprisonment not exceeding [six months]; and any person found in any common gaming-house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been there for the purpose of gaming.

10.On conviction of any person for keeping a instruments common gaming-house or being present therein for purpose of gaming, all the instruments of gaming ordered to found therein may be destroyed by the order of the[Judicial Magistrate], and such Magistrate may order all or any of the other articles seized, or the proceeds thereof, to be forfeited.

[11. Games of mere skill.- Nothing withstanding anything contained in this Act, Sections 3A and Sections 5 to 10 of  shall  apply to games of mere skill if played for wager, bet, money or other stake.]

 

  1. The provisions of the Public Gambling Act, 1867 which was the legislation based on which the Tamil Nadu Gaming Act came to be enacted has provisions which are almost verbatim identical to the provisions mentioned above. A reading of the preamble would show that the reason for the enactment of the Tamil Nadu Gaming Act was to impose punishment for gaming and the keeping of common gaming houses. Section 5 of the Act provides power to any Judicial Magistrate or any police officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police who has a reason to believe that any place is used as a common gaming-house/ he may, by his warrant, give authority to any Police Officer not below the rank of Sub-Inspector, to enter with such assistance as may be found necessary, by night or by day, any such place, and to arrest all persons found therein and to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein, and to search all the parts of such place and also persons found therein.

 

  1. Section 11 categorically spells out that the provisions of the Act does not apply to games of skill wherever played, thus permitting persons to play game of cards like rummy etc without stakes only using their skills for recreation or time pass. An analysis of the preamble and the definition of gaming includes wagering, betting and playing of games in a gaming house for the profit or gain of the person owning, occupying, using or keeping such house and it was the intention of the Legislature to penalise and punish persons who are involved in betting, wagering and playing games using money which are not games of skill.

 

  1. Despite sufficient safeguards being available under the Tamil Nadu Gaming Act, it is the stand of the 5th Respondent that CCTV’s have to be installed in all places of a Club since it is apprehended by the Police that in most of cases the offender will either try to escape from the scene of occurence or destory the evidence after moving to an area not covered under the CCTV. It is adjunct to point out that the 5th Respondent in its report has taken pains not only to place on record his submission but also to appraise this Court about the judicial pronouncements of the Division Bench and Learned Single Judges of this Court. Though it seems like the 5th Respondent seems to be well aware of the decisions of this Court, for reasons best known seems to have either forgotten or not taken note of the law of the landmark judgment declared by the Constitution Bench of the Supreme Court in “Justice K.S.Puttasamy & Anr vs Union of India & Ors (2017) 10 SCC 1.

 

  1. It is trite in law that suspicion howsoever strong it may be cannot take the place of proof. But the view taken by the 5th Respondent that since they suspect that gambling or gaming by wagering/betting can take place in any part of the club and therefore CCTV cameras have to installed in all areas of the entire club seems to only indicate the doubting Thomas mindset of the Police. Once when the statute makes it amply clear that a procedure is to be followed, the insistence of installing CCTV in all areas to supposedly catch hold of the wrong doers will not bode well with the dictum laid down by the Supreme Court.

 

  1. Today many persons including families visit clubs and avail facilities like swimming pool, dining and restaurants, walking area, indoor and outdoor games, steam bath and for using Bar facilities. They come to unwind and spend some quality time with friends and family. To cast a doubt on every single person entering the club thinking that they might commit an offence and subject them to complete CCTV Surveillance does not have any rational or objective basis. To brand the every single person entering a club capable of committing an offence of gaming for profit/betting/wagering is indicative of the narrow and archaic mindset of the Police. Prevention and detection of crime is the primary responsibility of the Police and there is no doubt that they shall exercise their powers as stipulated by law to perform these functions. But to traverse beyond the legal framework and to presume or assume that every person might commit an offence warranting the monitoring of each and every activity of an individual in a recreational club is something quite disturbing and this kind of a mindset of the Police appears to be the root cause for all human right violations and harassments that is taking place. To take a stand that right to privacy must be superseded by suspicion of the Police is certainly untenable.

 

  1. This takes us to the seminal issue involved in the present writ petition as to whether the Police can insist that recreation clubs to install CCTV cameras in all the places, including playing area and corridors (except Restroom and toilet) ignoring the right to privacy. As stated earlier the Supreme Court in Justice K.S.Puttasamy & Anr vs Union of India & Ors (2017) 10 SCC 1 has unequivocally held that the ‘right to privacy’ is an essential part of Article 21 of the Constitution of India, wherein, His Lordship Dr.D.Y.Chandrachud J., in his opinion candidly held that in para 297 that:

“297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”

 

  1. The dissenting opinion of Subba Rao, J., in “Kharak Singh v. State of U.P” reported in AIR 1963 SC 1295 which remained a minority opinion for more than 5 decades was approved by the Constitution Bench in Puttasamy’s Case wherein his Lordship dealt with the issue of surveillance is extracted hereunder:

 

“29. This leads us to the second question, namely, whether the petitioner’s fundamental right under Art. 19 (1) (d)is also infringed. What is the content of the said fundamental right? It is argued for the State that it means only that a person can move physically from one point to another without any restraint.’ This argument ignores the adverb “freely” in cl. (d). If that adverb is not in the clause, there may be some justification for this contention; but the adverb “freely” gives a larger content to the freedom Mere movement unobstructed by physical restrictions cannot in itself be the object of a person’s travel. A person travels ordinarily in quest of some objective. He goes to a place to enjoy, to do business, to meet friends, to have secret and intimate consultations with 0thers and to do many other such things. If a man is shadowed, his movements are obviously constricted. He can move physically, but it can only be a movement of an automation. How could a movement under the scrutinizing gaze of the policemen be described as a free movement? The whole country is his jail. The freedom of movement in cl. (d) therefore must be a movement in a free country, i. e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do. We would, therefore, hold that the entire Regulation 236 offends also Art. 19 (1) (d)of the Constitution.”

 

  1. The above words of the Subba Rao.J., conveys a deep meaning. When a person becomes a member of a club and intends to spend time in the club’s premises to relax or unwind with friends and family, he/she expects that his private space is not intruded. To tell him that all acts of his whether playing or swimming or walking or eating or drinking would all be under the scrutinizing gaze of the policemen through the CCTV’s that can be accessed anytime would not only make his right to privacy redundant but also offend and deprive his cherished right for the sake of an alleged offender who might be playing games for money or betting or wagering. The legal maxim “necessitas publica est major quam privata” which means that ‘Public necessity is greater than private necessity’ is an aspect the Court can look into if overwhelming public interest overrides private interest of a few individuals. However here suspecting that a handful of persons might be doing betting or wagering, putting the entire persons present in the club under scrutiny does not have any real or rational nexus.

 

  1. Today gambling has started taking place in hi-tech fashion where there are so many sites and applications online which make people spend much of their hard earned money. When they lose their money, the Police sometimes have no clue as to how to trace these anonymous persons who probably might be sitting even in a different country. As the Courts have repeatedly held that law has to adapt itself to the changing social and societal needs, the Tamil Nadu Gaming Act or the Public Gambling Act are legislations of the Victorian era which have not completely adopted with new amendments from time to time. Those days there were exclusive gambling dens or gaming houses where even innocent people visited and lost huge monies leading to devastating effects on them and their family. But now this concept of gaming houses or gambling dens is not present and only in a few clubs which are under the control of suspicious and unethical elements, gambling takes place. The Police have all powers to take action against these kind of offenders and proceed in accordance with law and this Court would not put any fetters on the power of the Police to take action in this regard. Though the Tamil Nadu Gaming Act provided wide powers to the Police, strict conditions are imposed under Section 5 of the Act that provides power to any Judicial Magistrate or any police officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police who has a reason to believe that any place is used as a common gaming-house/ he may, by his warrant, give authority to any Police Officer not below the rank of Sub-Inspector, to enter with such assistance as may be found necessary, by night or by day, any such place, and to arrest all persons found therein and to seize all instruments of gaming and all moneys and securities for money and articles of value reasonably suspected to have been used or intended to be used for the purpose of gaming which are found therein, and to search all the parts of such place and also persons found therein. The word ‘reason to believe’ finding place in Section 5 cannot be construed casually and there must be real and substantial reasons based on material available.

 

  1. Our Constitution and more specifically the wide spectrum of rights conferred by the golden triangle i.e Article 14, 19 and 21 is the reason why our nation remains as the largest democracy in the world. Any attempt to trample such rights would not be permitted by this Court as there is a constitutional obligation vested on us to protect the rights of the citizens from excessive or arbitrary State action. Here the submission made by 5th Respondent that CCTV’s should be in all places except restrooms appears not to be a reasonable restriction as mandated under Clauses (2) to (6) of Article 19. Thus, I am unable to accept the submission made by the 5th Respondent seeking direction that CCTV’s be installed in all areas of the Club except restrooms as this would clearly be violative of the right to privacy of all other members and visitors in the Club.

 

  1. However, as regards the grievance of the petitioner Clubs that under the pretext of suspicion or under the guise of information received that the members of the club are indulging in illegal gaming activities, the police irrespective of their rank even below the rank of Sub Inspector, time and again, entering the club premises and conducting the raids and thereby causing much inconvenience and embarassment to the members of the clubs, among whom, many of the members are respectable and prominent persons and damaging their reputation is concerned, it is pertinent to note that the Legislature in its wisdom, in order to safeguard the interest of the members of the Clubs/recreation centres, has incorporated Section 5 in the Tamil Nadu Act, 1930, which specifically insists upon that a Police Officer not below the rank of Sub-Inspector of Police being permitted through a warrant to search a place by any Police Officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police who has reason to believe that any place is used as a common gaming-house, can enter the Clubs/recreation centres, by night or by day, any such place and to arrest all persons found therein and to seize all instruments of gaming and all moneys.  Therefore, as per Section 5(1), inspection/raid of Clubs/recreation centres has to be necessarily conducted by a Police Officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police or by a Police Officer not below the rank of Sub Inspector of Police through warrant issued by any Judicial Magistratre or Deputy Superintenent of Police or Assistant Commissioner of Police.

 

  1. Ours is a democratic society and every citizen and association of citizens has right of privacy. If that privacy is getting invaded indiscriminately, then there would be an end for all the democratic way of life and the rule of the law.  However, under the guise of privacy, no citizen or association of persons can indulge in illegal or unlawful activities. At the same time, under the guise of suspicion, no police officer straightway walk into the place, make a raid and search without reason to believe that such place is used as gaming-house. For instance, gaming which includes wagering or betting to the extent it is defined in the Act, is forbidden by it. Simply, because a police officer thinks that some gaming is going on in a place, he cannot make a search of it. When a person’s private life or his privacy is sought to be interfered with, it should be done with a sense of responsibility.  That is why the search which is permitted under Section 5 is circumscribed by very many limitations and precautions, which are clearly intended to safeguard the interests of the citizen.

 

  1. As observed above, if any search is to be conducted straightway by a police officer, he should not be below the rank of a Deputy Superintendent of Police or Assistant Commissioner of Police. Such an officer is certainly an experienced and responsible person. He can either issue a warrant or conduct the search by himself. But then he cannot do either indiscriminately. He must have reason to believe that the place which is permitted to be searched is used as a common gaming house.

 

  1. In the light of the above discussion and taking into consideration that a balance has to be struck to protect an individual’s privacy and ensure that the offences are not committed inside the premises of the clubs/recreation centres, this Court feels it appropriate to issue the following directions keeping in mind the dictum of the Supreme Court in Puttasamy’s Case (cited supra) as well as the provision, particularly, Section 5 of Tamil Nadu Gaming Act, 1930:

 

(i) The petitioners shall install within a reasonable period , CCTV cameras, at the places of entry and exit of the club and play areas wherein game(s) is / are played by the members. The CCTV footage of atleast prior 30 days’ period shall be made available by the petitioner to the jurisdictional police, as and when called upon to do so provided the request made by the Police is for the specific purpose in accordance with law.

 

(ii) The petitioner shall not permit any activity by any of its member(s), by indulging in gaming punishable under the Tamil Nadu Gaming Act, 1930 or the Public Gambling Act. The member(s) shall not be allowed to play any kind of game(s) with stakes or make any profit or gain out of the game(s) played inside the Club premises.

 

(iii) The petitioner shall put proper mechanism in place and shall ensure that no game(s) is played in any unlawful manner by the member(s). If the jurisdictional police find the game(s) played is/are contrary to any law and in violation of the settled practice, it is open to them to take action against the petitioner and the offenders, in accordance with law and in the event they intend to enter the club, then the same can be done only after satisfying the requirements of Section 5 of Tamil Nadu Gaming Act, viz.,

 

  1. a) no police officer straightway walk into the place, make a raid and search without reason to believe that such place is used as gaming-house;
  2. b) any police Officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police, or a Police Officer not below the rank of Sub Inspector of Police through warrant issued by any Judicial Magistratre or Deputy Superintenent of Police or Assistant Commissioner of Police, has reason to believe that any place is used as a common gaming-house, shall conduct raid/inspection by entering the Clubs/recreation centres, by night or by day, any such place and to arrest all persons found therein and to seize all instruments of gaming and all moneys.
  3. c) in the event of any police officer below the rank of rank of Deputy Superintendent of Police or Assistant Commissioner of Police, or a Police Officer not below the rank of Sub Inspector of Police without warrant, under the guise of suspicion or information received that the members of the clubs or clubs are indulging in illegal activities, attempts to enter the premises would be construed that the said Police Officer making an attempt to enter or entered the club premises without his official capacity, in such case, the concerned Management of Clubs/recreation centres can very well object to it and take recourse in the manner known to law.

 

(iv) The Police shall endeavor to the maximum extent not to enter the club premises unnecessarily thereby causing inconvenience to other members and get all information using the details available in the CCTV footages.

 

(v) The Police shall not attempt to access the footages other than the footages required thereby infringing the right to privacy of other members who are in no way connected or involved.

 

(vi) The jurisdictional police in accordance with Section 5 (1) of the Tamil Nadu Gaming Act, 1930 shall have liberty to visit premises on receipt of any information about any unlawful activity being carried on in the petitioner’s premises and take further action strictly in accordance with law.

 

(vii) The respondents are directed not to interfere with the lawful recreational activities carried on by the members of the petitioner’s – Club/Association.

 

(viii) It is made clear that this order would not come in the way of the jurisdictional police invoking the relevant provisions of the Act and taking action in accordance with law, if the member(s) of the petitioner is/are found to have indulged in any unlawful or immoral activities.

 

  1. With the above said directions, these Writ Petitions are disposed of. No costs. No costs.  Consequently, connected WMP is closed.

 

04.02.2022

 

suk

 

Index  : Yes

Internet : Yes

Speaking order

 

 

 

To

 

1.The Superintendent of Police,

Kancheepuram District.

 

2.The Deputy Superintendent of Police,

Vandalur Sub-Division,

Kancheepuram District.

 

3.Inspector of Police,

Maraimalai Nagar Police Station,

Maraimalai Nagar,

Kancheepuram District.

 

4.The District Registrar (Admin),

District Registrar Office,

Chengalpattu,

Kancheepuram District.

 

5.The Director General of Police,

Dr.Radhakrishnan Salai Road,

Mylapore, Chennai – 600 004.

 

6.The Commissioner of Police,

Office of the Greater Chennai City Commissioner,

Vepery, Chennai – 600 003.

 

8.The Deputy Commissioner of Police,

T.Nagar Police Range,

T.Nagar, Chennai – 600 017.

 

9.The Assistant Commissioner of Police,

Office of R-8, Vadapalani Police Station,

Vadapalani, Chennai – 600 026.

 

10.The Inspector of Police,

R-8 Vadapalani Police Station,

Vadapalani, Chennai – 600 026.

 

KRISHNAN RAMASAMY, J.

 

suk

 

 

 

 

 

 

 

 

 

 

 

 

 

W.P.Nos.26397 & 27246 of 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

04.02.2022

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