MANISH KUMAR GUPTA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) 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 PS. 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 -ln -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 (or 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.) 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.WJ.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. 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.