J N GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner in this case is the sole proprietor, editor printer and publisher of a monthly magazine called "Now India", published from Calcutta. It is stated that through the said magazine the petitioner advertises, promotes and conducts prize competitions under the name and style of 'International Word Competition". In fact, a copy of the magazine is annexed to the petition and marked 'A'. It appears that the magazine is wholly devoted to these prize competitions. It is stated in the petition that the competitions are of two kinds--one is the "Square Word Competition" and the other is the "Pair Word Competition". In the "Square Word Competition", the word puzzle is arranged within a large square divided into and consisting of about 100 small squares. Some of these squares are dead squares and mark the end or commencement of the word arranged horizontally or vertically. Some of the squares are filled in, while others are left blank to be filled in by competitors. The clue is given at the side of the square and words are set out at the bottom of the square which shows that the solution will be either a single word or one of a pair of words set out. In the "pair word competition" about 16 pairs of words are given and the competitors are required to find out the correct word or solution out of each such pair from the clues furnished. It is further stated that with regard to each competition there is an official key solution which is prepared beforehand and kept in a sealed cover, and is published after the closing date of the competition. It is further stated that the first prize of each competition is awarded to the competitor whose solution agrees wholly with the official solution, and failing this, to the competitor whose solution comes nearest to the official solution.

(2.) It is obvious from this description, that very little if any skill is required to answer the puzzles. The words are there in print, and since they contain single as well as double words, the permutations and combinations which can be made from them are almost infinite. One of such combination has been decided from beforehand and is called the 'Official key solution'. In order to succeed in the competition, the particular competitor would have to hit at this solution or come very near it. There can be very little doubt that the competitions are conducted in a manner in which success depends purely on chance and not on skill. In any event, very little skill is required. I may further mention that the competitions contain lurid head lines offering large monetary prizes, one of them being Rs. 20,000/-, another Rs. 30,000/-, the third Rs. 15,000/- and so on. The rules, however, as given at the end of the magazine contain a clause that the prize money was subject to variation proportionately on ground of collection and also on "office, publicities and other expenses and legal dues". Thus these head lines are entirely misleading. As a matter of fact, from the balance-sheet annexed to the petition it appears that the targets are never reached. These prize competitions, so far as the State of West Bengal is concerned, is subject to the provisions of the 'West Bengal Gambling & Prize Competition Act, 1957 being West Bengal Act XXXII of 1957 (hereinafter referred to as the 'Act'). The bill was assented to by the Governor on 7-3-1958 and was published in the Calcutta Gazette on 12-3-1958. It is stated to be an Act to consolidate and amend the law relating to the prevention of gambling and to provide for the control and regulation of prize competitions. Section 1 of the Act came into operation at once, and the remaining provisions were to come into force in such areas and on such dates as the State Government might, by notification in the official gazette, appoint for the purpose. It is stated that y diverse notifications published from time to time, the whole of the Act, except Section 10 thereof, in so far as that section relates to birds, was brought into force in the whole of West Bengal, and certain draft rules called the West Bengal Prize Competition Rules, 1958, have also been published on 24-3-1958. These rules have been framed under the rule-making power conferred by Section 37 of the said Act. The Act is roughly divided into two parts. The first part is contained in Chapter II and deals with the prevention of gambling. In this part "gaming or gambling" includes wagering or betting except wagering or betting upon a horse race, when such wagering or betting takes place in the manner stated, but does not include a lottery. The second part of the Act is contained in Chapter III and is heeded "Control and Regulation of Prize Competitions". In Section 19(d), "Prize Competition" has been defined

(3.) Firstly, it is stated that the business that is being carried on by the petitioner by inviting members of the public to take part in the "International Word Competition" as contained in the magazine "New India", is and must be considered as a 'lottery'. A 'lottery' is expressly excluded from the definition of 'gaming or gambling' as defined in Section 2(1)(b) of the Act. Further, that it had been expressly excluded from the definition of the words "gaming" or "gambling" in the several repealed Acts which are mentioned in Section 18 of the said Act, namely the Howrah Offences Act, 1857, the Calcutta Police Act, 1866 and the Bengal Public Gambling Act, 1867. It is, therefore, argued that so far as lotteries are concerned, they have been expressly excluded from the scope of the said repealing Act and also of the repealed Acts. Further, lotteries organised by Government of India or the Government of a State are a legislative subject under item 40 of list I in the 7th Schedule to the Constitution of India. It is, therefore, argued that lotteries organised by citizens or other persons are not covered by the provisions of the said Act and also do not come within the scope of "betting and gambling", being item No. 34 of List II in the 7th Schedule to the Constitution, but are a legislative subject not enumerated in the List II or in the List III and consequently the Parliament has exclusive power to make Jaws with respect to the same under Article 248 of the Constitution. It is next argued that in any event, it does not amount to gaming or gambling, because the competitions require skill for their solution and must be considered as innocent competitions.