Judgment

SARKARIA, J.:- This appeal by special leave is directed against a judgment, dated November 15/16, 1973, of the High Court of Gujarat. The material facts are as under:

2. On June 23, 1973, a Police Sub-Inspector made a report to the District Superintendent of Police, Rajkot, to the effect that the premises known as Rajkot Yuvak Sahakar Mandal. situated at Mochhi Bazar Road, near Krishna Cinema, Rajkot was used as a common gaming house and gambling was going on therein. The Deputy Superintendent of Police, after making an inquiry, was satisfied about the contents of the report and he issued a warrant under Section 6 of the Bombay Prevention of Gambling Act (hereinafter referred to as the Act) and sent it to the Police Sub-Inspector, Rajkot, for execution in accordance with law. The Sub-Inspector then reached the aforesaid premises in the early hours of June 24, 1973 at 4 a. m. He found 10 persons, including the respondent herein, in the premises. They had all gathered there for the purpose of gambling, and gambling was actually going on by play of cards, and tokens of various designs, which were used to indicate the different points, were also found there. All the ten persons were arrested in respect of offences under Sections 4 and 5 of the Act. The instruments of gaming were also seized.

3. On the following morning at 7 a. m., the petitioner and his companions submitted an application to the Police Sub-Inspector who was the first respondent before the High Court, requesting him to enlarge them on bail. The Sub-Inspector did not consider their bail applications nor did he pass any order thereon. At about noon, however, the respondents were produced before the Magistrate, who released them on bail. The Sub-Inspector did not consider their bail applications and release them on bail because he was prohibited from doing so by a Circular Order issued by Shri P. H. Jethwa District Superintendent of Police. Rajkot, directing all the Police Sub-Inspectors not to release persons arrested in respect of offences under Sections 4 and 5 of the Act on bail, because in the Form of the warrant prescribed under Section 6 of the Act, it is mentioned that the arrested persons should be produced before the Magistrate. The Circular Order. further directed that the arrested persons under the Act should be produced before the Magistrate. The Circular further warned that if any Police Officer violated these directions, he would expose himself to disciplinary action. This Circular order (Ex. B) was impugned by a writ petition under Article 226 of the Constitution before the High Court.

4. Two main contentions were raised before the High Court. First, that offences under Sections 4 and 5 of the Act are cognizable and bailable. Consequently, under Section 496 of the Code of Criminal Procedure. 1898, the Police Officer arresting the respondents was duty bound to enlarge them on bail. The impugned Circular, being contrary to the statutory provisions, is illegal and ultra vires. Second the impugned Circular is violative of Article 14 of the Constitution, inasmuch as it discriminates between persons similarly situated. The second ground was not pressed before the High Court.

5. The first contention prevailed with the High Court. In conclusion, it held that the Police Officer had the power or the authority to enlarge the arrested persons on bail. Its reason was as under :

"When the legislature empowers an officer to delegate any authority to do certain acts to another it necessarily implies that the original authority can do such acts itself. Consequently, when the Commissioner of Police and certain other officers mentioned in Section 6 are authorised to issue special warrant for search of the premises where gambling is going on, for the seizure of the articles therein or take into custody and bring before the court such persons who may be found therein, such officers can themselves do such acts."

Referring to Section 4 (1) (f) of the Code of Criminal Proce