PUBLIC PROSECUTOR Vs. KBKALKURA

JUDGEMENT

(1.) The accused and another were running a lottery which was a gigantic swindle, in that the only substantial prize fell necessarily to the agent who sold the largest number of tickets. The ticket bearing the highest number among those sold by that agent was a number upon which all the other lucky numbers were, based. The holders of those lucky numbers received a small prize of one rupee. The accused were tried by the Joint Magistrate of Coondapur, who found that the appellant was conducting a lottery and was guilty of offences punishable under both parts of Section 294-A, Indian Penal Code. In appeal, the Sessions Judge of South Kanara held that although it was true that the appellant was conducting a lottery and had cheated the public on a large scale, he was not guilty under either part of Section 294-A, Indian Penal Code, because he had not been keeping an office or place for the purpose of drawing a lottery and had not been publishing any proposal to pay any sum ... on any .... contingency relative .... to the drawing of any ticket, lot, number, or figure in any such lottery. He therefore allowed the appeal and acquitted the appellant. The Crown has preferred the present appeal, contending that the Joint Magistrate was right and the Sessions Judge wrong.

(2.) The learned Joint Magistrate argued that one must not interpret the word "drawing" in Section 294-A, Indian Penal Code too strictly. He was of opinion that the question as to how exactly the winning ticket number was drawn or determined is immaterial so long as this was done or determined by the accused in a regular office kept by him for that particular purpose. He thought the section really means that once the fact of the scheme being a lottery is accepted, the word draw signifies the manner in which the element of chance in it is determined by the act of the promoters of that lottery. If the learned Magistrate was right, this word "drawing" would have no significance at all and would be equivalent to "conducting". Both the learned Sessions Judge and the learned Magistrate, in analysing the cases bearing upon the subject, have discussed whether the section refers to a physical drawing or not; but it seems immaterial to me what sort of drawing it was, whether physical or otherwise, provided that there was a drawing. In the present case there admittedly was no drawing of any sort at all, whether physical or otherwise.

(3.) There has been no decision of this High Court on the interpretation of the word "drawing" in Section 294-A; but the matter has received considerable attention at the hands of Judges of other High Courts. The leading case on the subject is a judgment of Shadi Lal and Le-Rossignol, JJ., in Emperor Mukandi Lal A.I.R. 1917 Lahore 93. The same question arose there because in one of the lotteries under discussion there was no drawing, the lucky numbers being calculated arithmetically. The learned Judges remarked: The word drawing , we think, is used in the section in its physical sense, and when the section was enacted in 1870, it seems probable that the only form of lottery envisaged by the Legislature was a lottery run on the usual lines, in which the winning numbers are actually drawn out of an urn, box, or other receptacle. When something is made an offence which was not formerly an?offence, men will naturally exercise their ingenuity in circumventing the law, and that is no doubt a reason why so many ingenious methods of ascertaining lucky numbers have since the enactment of this section been devised. This case was followed in Emperor Gurbaksh Singh A.I.R. 1934 Lahore 840, by a single Judge of the Lahore High Court and considered and approved in Emperor Syed A.M. Vazirally (1928) I.L.R. 53 Bom. 57, which was a decision of a Bench. There, a firm?of cigarette vendors were anxious to advertise a. new brand of cigarettes and published the fact that certain packets of cigarettes would each contain a five rupee note. They sent ten five rupee notes to the manufacturers to put in certain packets at random. The learned Judges approved of Emperor Mukandi Lal A.I.R. 1917 Lahore 93, and agreed that the section contemplated a physical drawing. That decision was also followed in an earlier Bombay case, King-Emperor Rachappa Murigeppa Shabedi A.I.R. 1925 Bom. 26. The matter was also carefully considered in O. D. Harder Emperor A.I.R. 1934 Sind 149. There is thus a substantial consensus of opinion in two High Courts and a Chief Court that the word "drawing" in Section 294-A cannot be ignored and must be given its natural meaning.