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2007 DIGILAW 110 (JHR)

Manish Kumar Gupta v. State of Jharkhand

2007-02-22

D.K.SINHA

body2007
Order The instant Cr. Revision application is directed against the order impugned dated 14.1.2004 passed by Sri Abhas Verma, Judicial Magistrate, Dhanbad in Jharia P.S. Case No. 334 of 2002 (G.R. Case No. 2658 of 2002) whereby and whereunder the discharge petition filed by the petitioners was refused. 2. The prosecution story in brief is that the Officer-in-charge of Jharia police Station conducted raid in the house of the petitioner No.1, Manish Kumar Gupta on 13.10. 2002 on the tip off that he was selling the lottery tickets of different States illegally and in course of search he found that the petitioner No.1 was sitting with the petitioner No.2 with large number of lottery Tickets of different States with the intention to sell the tickets. In course of extensive search as many as 36,000 tickets of Sikkim State lottery and 120600 tickets of Bhutan lottery besides, a calculator and Rs.51/- in cash were recovered in presence of the independent witnesses, which were seized, and seizure list was prepared. On demand, no licence or any authority was produced by the petitioner for the sale of those lottery tickets of Bhutan and Sikkim which was an offence under sections 290/294A of the Indian Penal Code as well as under sections 3 and 4 of the Bihar Ban on Lotteries Act, 1993. 3. Mr. Jai Prakash, the learned counsel for the petitioners submitted that the prosecution of the petitioners for the alleged offence is unwarranted and uncalled for which amounts to miscarriage of justice. 4. Advancing his arguments Mr. Jai Prakash submitted that in the year 1993 the State of Bihar had promulgated Bihar Ban on Lottery Act, 1993 prohibiting dealing in business of lottery in the State of Bihar by reason of section 3 of the said Act. Section 4 of the said Act provided penalty in contravention of provisions of the Act prescribing punishment of imprisonment. Such Act was challenged before the Hon'ble Patna High Court on the ground of legislative incompetence of the State of Bihar for such enactment and the Full Bench of the Patna High Court in C.W.J.C. Nos. 6657,6881,6929 and 6958 of 1993* held the Bihar Ban on Lottery Act, 1993 as ultra vires of the Constitution of India, in so far as the Lotteries organized by the Central Government or any other State Government is concerned, as the State lacked legislative competence to do so. 6657,6881,6929 and 6958 of 1993* held the Bihar Ban on Lottery Act, 1993 as ultra vires of the Constitution of India, in so far as the Lotteries organized by the Central Government or any other State Government is concerned, as the State lacked legislative competence to do so. Admittedly, the State of Bihar or the State of Jharkhand do not organize, conduct or promote lottery (tickets) of the State in view of the decision of the Full Bench of the Patna High Court. The action of the State of Jharkhand in prosecuting the petitioners in violation of the Act having been declared as ultra vires is absolutely without jurisdiction and misuse of the process of law. The prosecution parties have no authority to put any hindrance in the business of the petitioners in pursuing the sale of lottery tickets. 5. Advancing his argument the learned counsel submitted that in the year 1998 the Parliament enacted Lotteries (Regulation) Act, 1998 and Section-5 of the said Act speaks:- "A State Government may, within the State, prohibit the sale of tickets of a lottery organized, conducted or promoted by every other State." 6. Mr. Jai Prakash further submitted that Section 290 of the Indian Penal Code has got no relevancy at all to prosecute the petitioners which relates the public nuisance. As regards the relevance of Section 294A of the IPC is concerned, it speaks:- . " Whoever keeps any office or place for the purpose of drawing any lottery (not being a State lottery) or a lottery authorized by the (State Government) shall be punished with imprisonment of either description for a term which may extend to six months or with fine or with both" 7. There is no allegation against these petitioners that any of them was keeping any office or place or drawing of lottery. Moreover, on the face of special statute namely Lotteries (Regulation) Act, 1998 the provision of general law i.e. IPC is not applicable in the matter. 8. On the point of law Mr. Jai Prakash submitted that the petitioner No.1 Manish Kumar Gupta had earlier moved before this Court in W.P.(C) No 6063 of 2002 with the prayer that the respondents should be directed not to interfere with his business of selling of lottery tickets organized by other States. In the instant police case, for which the present Cr. Jai Prakash submitted that the petitioner No.1 Manish Kumar Gupta had earlier moved before this Court in W.P.(C) No 6063 of 2002 with the prayer that the respondents should be directed not to interfere with his business of selling of lottery tickets organized by other States. In the instant police case, for which the present Cr. Revision application has been preferred, a Bench of this Court in W.P.(C) No. 6063 of 2002 by order dated 16.1.2004 observed:- "In view of the Division Bench Judgment, reported in 1994(1) BLJR 702 , stated above, the Bihar Ban on Lotteries Act having itself been declared ultra vires, there is no reason as to why unnecessarily the business of the petitioner should be banned and that too when the Jharkhand Government has not come out with any law in this regard. In that view of the matter, a writ of Mandamus is issued directing the concerned Respondents not to interfere with the sale of lottery tickets by the petitioner organized by other States. Since this writ petition is not concerned with the criminal cases, therefore, this order will not affect the criminal trial. This order is therefore confined only to the writ of Mandamus issued aforesaid". 9. Mr. Jai Prakash pointed out that similar issue fell for consideration before, this Court and the learned Single Judge in WP(Cr.) 200 of 2004 relying upon the \ decision of another Bench of this Court in W.P.(C) No. 6063 of 2002 (Manish \Kumar Gupta vs. State of Jharkhand and Anr.) allowed the Criminal writ petition and discharged the petitioner quashing the entire criminal prosecution arising out of Jharia P.S. Case No. 244 of 2002. The present case of the petitioners is also squarely covered by the aforesaid decision. 10. Having regard to the facts and circumstances of the case it would not be out of place to mention that inspite of several opportunities to the Opposite party-State of Jharkhand to file counter affidavit showing the stand of the State government on the issue, no counter affidavit has been filed. Even the learned APP did not appear to place the prosecution case, I find substance in the arguments for the petitioners and the case of the petitioners is squarely covered by the decision of a Bench of this Court in W.P.(Cr.) 200 of 2004 passed on 10.4.2006. 11. Even the learned APP did not appear to place the prosecution case, I find substance in the arguments for the petitioners and the case of the petitioners is squarely covered by the decision of a Bench of this Court in W.P.(Cr.) 200 of 2004 passed on 10.4.2006. 11. In the result, since offence instituted against the petitioners is in the nature of summons trial, they are acquitted in Jharia P.S. Case No. 334 of 2002 corresponding to G.R. No. 2658 of 2002 and their criminal prosecution pending in the court of Sri Abhas Verma, Judicial Magistrate, Dhanbad is set aside. 12. For the reasons stated above this Cr. Revision application is allowed.