Recently, Bombay High Court passed an order quashing the writ petition filed by Mumbai-based Nasir Patel, without accusing Poker as “gambling” or “illegal.” On 8th September 2016, Patel was arrested along with 29 others from an apartment in Goregaon for playing poker, during a police raid. The police filed an FIR against him under Sections 4(A) and 5 of the Maharashtra Prevention of Gambling Act.

Patel filed a writ petition along with his lawyer  Ram Mani Upadhyay on the basis of three arguments-

  • Poker was being played in private premises for entertainment purpose without any betting
  • Legally, if poker is played at private premises, there is no requirement of any license whatsoever
  • Poker is a skill based game and doesn’t involve luck. Thus it doesn’t fall under Maharashtra Prevention of Gambling Act.

The major unrest in the poker community started as they seemed to notice some verbal observations made by the bench of judges during the hearing on 28th March 2018. The bench noted that poker involves luck since the players are unaware of their hole cards and the community cards flipped on the board. Although the final judgement copy was not immediately released, such an observation was mentioned in the official order. This could cast a doubt on the legality of hosting such games (both offline and online) for the residents of Maharashtra. Needless to say that such decision can prove detrimental to the industry already running in troubled waters.

When the industry operators were gearing up to file a petition against such judgement in the apex court, Patel took to noted Senior Counsel Amit Desai as the last resort to turn the judgement around. The matter was brought out on 2nd of April, again, in front of the same bench of judges. Desai argued at length based on the following points-

  • International acceptance of poker as a game of skill
  • Acceptance of poker as a game of skill by the Kolkata and the Karnataka High court.
  • Association of the Chess Grandmaster, Vishvanathan Anand, with the Indian Poker League as its brand ambassador.

Desai was able to convince the bench to quite an extent. And thus, observations were modified in the final judgement. The new judgement released on 4th April said:

“The above writ petition has been filed for quashing of the L.A.C. being No.177 of 2016 registered with Goregaon Police Station, for the offences punishable under Sections 4(A) and 5 of the Maharashtra Prevention of Gambling Act, 1887.

The gravamen of the allegations is contained in the said F.I.R. It is alleged that the Petitioner herein is one of the accused who was found playing the game of “Cards”. We have perused the F.I.R. which gives the description as to how the said game is played. On such perusal, we find that in the said game, as described in the F.I.R., there is no element of skill and it appears to be purely a game of chance and the winner is chosen on the basis of cards, which are received by him on distribution in the said game and the winner also receives the prize in cash on the said basis.”

Having regard to the said aspect, prima facie, we find that the ingredients of the offence under the Prevention of Gambling Act, 1887 is made out. Therefore, we do not deem this a fit case to exercise our writ jurisdiction under Article 226 of the Constitution of India. The Writ Petition is accordingly dismissed.”

It is evident here that the main matter in debate is the activities of the accused at the time of the incident especially those pertaining to the Maharashtra Prevention of Gambling Act, 1887.

Observation from Maharashtra Prevention of Gambling Act, 1887:

“Common Gaming House: Any house, room or place whatsoever in which such gaming takes place or in which instruments of gaming are kept or used for such gaming;

In the case of any other form of gaming, any house, room or 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 or place by way of charge for the use’ of such house, room or place or instrument or otherwise howsoever.

In this Act, ” place” includes a tent, enclosure, space, vehicle, and vessel.

 

4. 2[(1)] Whoever

(a) Opens, keeps or uses any house, room or place for the purpose of a common gaming house,

(b) being the owner or occupier of any such house, room or place knowingly or willfully permits the same to be opened, occupied, kept or used by any other person for the purpose aforesaid,

(c) has the care or management of, or in any manner assists in conducting the business of, any such house, room or place opened, occupied, kept Qt used for the purpose aforesaid,

(d) advances or furnishes money for the purposes of gaming with persons frequenting any such house, room or place,

Shall, on conviction, be punished with imprisonment which may extend to two years and may also be punished with a fine.”

It is clear that the main issue was whether the accused were running a common gaming house for monetary benefits or not. Patel’s petition is however quashed by the High court but he can still appeal the final order.

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