MAROTI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In view of incompatible views of the two division benches, following issue has been referred for adjudication by the full bench :

(2.) In the case of Dilip Namdev Irale Vs. State of Maharashtra & Ors.; 2019 SCC OnLine Bom 2514 it was held that Deputy Superintendent of Police who had conducted raid on a gambling house, was not specially empowered by the State Government to effect the raid in view of the specific wording of Sec. 6 of the Maharashtra Prevention of Gambling Act, 1887 (herein after the Gambling Act) and the raid was, therefore, illegal.

(3.) Whereas, in the present matters the division bench by the order dtd. 20/10/2023, referring to the decision of the Supreme Court in the matter of State of Gujarat Vs. Lalsing Kishansingh ; 1980 Cri.L.J. 1413 and a judgment of a division bench of this Court in case of Emperor Vs. Abasbhai Abdulhussein ; AIR 1926 Bom. 195, disagreed with the view expressed in Dilip Namdev Irale (supra). It has expressed a view that since the raid/search was effected by the Assistant Superintendent of Police, there was no question of he being specially empowered by the State Government to exercise powers covered by sub-clauses (a) to (d). It was also observed that the officers named therein viz District Magistrate, Sub-Divisional Magistrate, Taluka Magistrate or Superintendent of Police or Assistant or Deputy Superintendent of Police, are expressly been empowered to exercise powers under those clauses. Since, in these matters, the raid was effected by Assistant Superintendent of Police, he had the powers and the raid could not be said to be illegal. This is how this reference.