M S ASSOCIATES Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) Petitioner M/s M.S.Associates has assailed the order dated 26th December, 1995, passed by the Commissioner of Police under Section 144 of the Code of Criminal Procedure In Short Cr.P.C.) thereby prohibiting lottery trade in Delhi w.e.f. 28th December,1995. This order was passed because it was apprehended that sale. of lottery tickets and the connecting activities are likely to cause disturbance of the public tranquility and public morale and breech of peace and danger to human life and property in the National Capital Territory of Delhi (in short NCT of Delhi). This order was to remain in force for a period of 60 days i.e,. upto 25th February,1996 unless withdrawn earlier. Subsequent thereto the Government of NCT of Delhi issued a Notification published in Part-IV of Delhi Gazette (Extra Ordinary) dated 28th February,1996 indicating therein that order of 26th Decmber,1995 made by Commissioner of Police, Delhi shall remain in force for a further period of six months commencing from 26th February,1996.

(2.) Petitioners have felt aggreived with the impugned Notification dated 28th February, 1996 issued by respondent No.2 i.e. NCT or Delhi. The said order has been assailed, inter alia, on the ground that no Notification could be issued after the order of Commissioner of Police under Section 144 Cr.P.C. had already come to an end. Since the impugned Notification of 28th February,1996 was issued after the expiry of the order of Commissioner of Police, therefore, it is bad in law because by this Notification the Government could not have revived the dead order. Section 144 Cr.P.C. cannot be made operative retrospectively, secondly the business of lottery does not in any way endanger human life, safety or could cause riots or any affray. Nothing has been indicated in the impugned Notification dated 28th February,1996 that there has actually been any breech of peace or any acts of affray or acts of riots. State organised Lotteries cannot be banned under the Law. Therefore, invocation of the provisions of Section 144 Cr,P.C. was by way of a camouflage to overcome the prohibition contained under the law from banning the sale of State organised lotteries.

(3.) To appreciate the points raised by Mr.D.C.Mathur, Senior Advocate for the petitioner and refuted by Mr.S.K.Aggarwal, Standing Counsel for the State, we must have a quick glance at the admitted facts of this case. Those are, that petitioner is a sole selling agent in Delhi of lotteries organised by the State of Nagaland. The Joint Director (Lotteries), Government of NCT of Delhi vide letter dated 21st July,1994 gave permission to the Government of NCT of Delhi to close down Delhi Lotteries w.e.f. 1st January,1995. Sales tax at the rate of 20% was imposed on the sale of lotteries run by other States w.e.f. 20th December,1994. It was found that inspite of these measures, the menace caused by the lotteries did not abet. Commissioner of Police received reports to the effect that on account of lottery menace which has resulted in spurt in various crimes in Delhi besides unhealthy competition between lottery sellers having ill effect of the addiction of the innocent public. It was found that being lured by the hope of winning the lottery, the young and poor wage earners and working masses, recklessly start gambling till they are finally exhausted. It was in this background that the Commissioner of Police thought that on account of being addicted to lotteries, it will endanger human life and safety. Therefore, by invoking the provision of Section 144 Cr.P.C. he promulgated prohibitory order banning the sale of lotteries in Delhi vide order dated 26th December,1995. The order of prohibition was to be effective from 28th December,1995. The prohibitory order issued by the Commissioner of Police under Section 144 Cr.P.C. was to be in force for a period two months. In the normal circumstances it would have come to an end on 25th February,1996. It is the case of the State that this prohibitory order was passed only after receipt of reports from District Deputy Commissioners of Police and D.C.P. (Crime). These reports lead to only one conclusion that there was urgent necessity for promulgation of prohibitory order to deter the people from continuing to indulge in lottery addiction. Number of cases of murder, suicide, robbery, attempted murder, snatching, gambling, theft, kidnapping were registered because of the lottery menace. The loss in lottery leads to a person in extreme financial stress. Since the poor wage earner spents money in lottery and becomes financially tight, with the result eher he finishes himself or his family. The case of the prosecution as set up is that it is in this backdrop that the order by the Commisisoner of Police was passed. Thereafter, instead of order being passed by the Commissioner of Police, the NCT of Delhi issued a notification with direction to continue the order of prohibition passed by the Commissioner of Police which is the impugned order in question.