' S.H.O. Police Station Faqir Abad had received information that Abdur Rauf and other petitioners herein were using the house of Jamil Khan D.S.P. As a gambling den although they had obtained the said house on rent for their own residence. He, therefore, obtained a search warrant on 13-10- 1989 from the Illaqa Magistrate and carried out a raid of the said house on 14-10-1989 at 14-00 hours. The S.H.O. Found the petitioners busy gambling inside the house. He arrested them. He also recovered an amount of Rs,785 and some instruments of gambling and a set of playing cards therefrom. Subsequently he sent a complaint under section 6 of the N.-W.F.P. Prevention of Gambling Ordinance, 1978 (hereinafter referred to as the Ordinance) in the Court of the Illaqa Magistrate and also forwarded the petitioners for trial. By the petition in hand the petitioners have challenged the said action as being abuse of process of Court and have prayed for quashment of the complaint under section 561-A, Cr.P.C.
2. It has been contended by the learned counsel for the petitioners that under the provisions of section 8 of the Ordinance the S.H.O. Is not empowered to carry out a search of any place about which he has reason to believe that it is being used as a common gaming house and that the action taken by him was illegal and without lawful authority.
3. In order, to appreciate the point raised by the learned counsel for the petitioners it is expedient to reproduce below the provisions of section 8 of the Ordinance:-- "8. Power to enter and search.-- If a District Magistrate, Sub-Divisional Magistrate, Magistrate of the First Class upon information and after such enquiry as he thinks necessary, has reason to believe that any place is used as a common gaming-house, or that an offence under section 6 is being committed at or in any place, he may--
(a) eater such place at any time with such assistance as he may require and using such force as may be necessary: ' Provided that, if such place is in the actual occupancy of a woman who, according to custom, does not appear in public, the officer so entering such place shall give notice to her that she is at liberty to withdraw and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing may enter the place;
(b) search such place for any instruments of gaming kept or concealed therein, and also the person of all those who are found in that place, except the women;
(c) seize and take possession of gaming moneys and securities fur 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 or upon any person found therein; and
(d) take into custody all persons, except women, found in that place whether or not then actually gaming."
It shall be seen that the aforesaid provisions of the Ordinance are distinguishable from the general provisions of search of any premises made under section 103 of the Code of Criminal Procedure.
Whenever any place is liable to search or inspection in connection with any offence, a Police Officer is competent to carry out such search or inspection after obtaining a warrant of search from a Magistrate under the provisions of sections 102 and 103, Cr.P.C. However, the search to be carried out under the provisions of section 8 of the Ordinance is a - search of a different kind. This is a search under a special law and the authority to carry out a search has been specifically provided therein. It shall thus be seen that if a search of a premises is to be made in connection with an offence of gambling then it is only the District Magistrate or the Sub-Divisional Magistrate or a Magistrate of the First Class who is competent to make such a search, although in carrying out such search he may require such assistance as he may deem necessary for carrying out the search. It is now an established principle of law that if an action is to be taken in a particular manner and by a particular authority specified in any law then that action has to be taken in that particular manner and by that particular authority and not otherwise. If such an exercise is not undertaken in accordance with the provisions of the said section then the whole exercise becomes illegal and without lawful authority.
4. Although under the provisions of section 103, Cr.P.C. a Police Officer is competent to make a search of a premises in connection with an offence reported to him but the Ordinance being a special law, the provisions for search of any premises made out in section 8 thereof are to be complied with in letter and spirit. The Ordinance being a special law will override the provisions of Code of Criminal Procedure which is a general law and the Ordinance provides particular authorities which only are competent to carry out a search in order to find out if any place or premises is being used as a common gaming-house. The District Magistrate or the Sub-Divisional Magistrate or the Magistrate First Class may, when making a search of a premises for the purposes of section 8 of the Ordinance, require police assistance in carrying out the job but a Police Officer would not in his own right be competent to make out such a search under section 8 of the Ordinance. The procedure adopted by the S.H.O. Police Station Faqir Abad for the search of the house occupied by the petitioners was entirely against the provisions of section 8 of the Ordinance and was illegal and without lawful authority. It was a gross abuse of process of the Court.
Subsequently the S.H.O. Attempted to justify his action by converting the said warrant of search as a warrant under section 100, Cr.P.C. But that was an exercise in futility and totally unjustified. The S.H.O. Committed an illegality and in order to justify the same he committed another illegality.
Perhaps the Legislature in its wisdom has not given this power to a Police Officer in so far as the offence of gambling is concerned the underlying idea being to prevent the misuse of this power by him.
5. The action impugned in the petition in hand was a gross abuse of process of Court and the complaint based upon it is untenable and in the interest of justice it is expedient to quash the same. The petition in hand is accepted and the complaint filed against petitioners by S.H.O. Police Station Faqir Abad is quashed.
Complaint quashed.