IMPORTANT POINT
The main legal point established in the judgment is that the powers of Magistrates and police officers to exercise specified powers under the Maharashtra Prevention of Gambling Act are demarcated in Section 6(1), and the distinction between the powers of different officers indicates the authority to exercise these powers without the need for special empowerment by the State Government.

JUDGMENT :

Mangesh S. Patil, J.

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

“Whether an Assistant Superintendent of Police - ASP, without having been specially empowered by the State Government - SG, has an authority to exercise power covered by sub-clause (a) to (d) of the Section 6(1) of the Maharashtra Prevention of Gambling Act ?”

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 Section 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 dated 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.

4. We have heard the learned advocate Mr. P.D. Bachate along with Mr. N.D. Kendre and Mr. V.B. Madan, learned Public Prosecutor Mr. Girase assisted by Additional Public Prosecutor Mr. Nerlikar.

5. It would be apposite to reproduce the provision in its entirety. Section 6 of the Gambling Act reads as follows :

“6. (1) It shall be lawful for a police officer—

(i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub-Inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the Commissioner of Police, and

(ii) elsewhere not below the rank of Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf, and

(iii) without prejudice to the provision in clause (ii) above, in such other area as the State Government may, by notification in the Official Gazette, specify in this behalf, not below the rank of a Sub-Inspector and empowered by general order in writing issued by the District Magistrate,

(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming-house.

(b) to search all parts of the house, room or place which he shall have so entered when he shall have reason to suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not.

(c) to take into custody and bring before a Magistrate all such persons.

(d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein :

Provided that no officer shall be authorised by special warrant unless the Co