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1996 Supreme(Del) 475
High Court Of Delhi
M.S.ASSOCIATES - Appellant
Versus
COMMISSIONER OF POLICE - Respondent
Decided On : 05/24/1996
Headnote:Administrative Law - Exercise of power — Executive power of State-It cannot exercise its executive power to do, what it is not legislatively competent to do-Constitution of India-Article 162 and 154.
Constitution of India 1950 - Schedule VII, List II Entry 34 & List I Entry 40 — Ban on State organized Lotteries — Powers of State Government — The State Government, in the absence of legislation by Parliament u/e 40 of List I, cannot ban the Lotteries organized by other States.
Held:
State organized lottery would be outside the regulatory power of any other State under Entry 40 of List I of the Constitution of India. To State organized lottery prohibition would not apply. In the instant case petitioner was selling State organized lottery, thereforee, in view of the Apex Courts decision the prohibition will not apply. This is the implication arising out of the proper interpretation of Entry 40 List I and Entry 34 of List II of the Seventh Schedule of the Constitution of India. Since the lotteries sold by the petitioner if organized by the State of Nagaland and fulfillls the essential ingredients to be called State organized lottery as stipulated by the Apex Court in the case of State of Haryana (Supra). Hence by the impugned notification the sale of this lottery could not be banned. In para 1 of the petition the petitioner had made it clear that it was the sole selling agent in Delhi of the lotteries organized by the State of Nagaland. This fact has not been denied by the respondents in their reply affidavit. thereforee, once it is prima facie proved that petitioner was selling the lotteries organized by the State of Nagaland in Delhi, sale of the same could not be banned. The NCT of Delhi cannot take aid of Section 144 Cr.P.C. and use it as a camouflage in order to over reach the provisions of law thereby prevent to prevent the trade and business of the petitioner.
Criminal Procedure Code 1973 - Section 144 — Scope of — Ban on lotteries — The State Government has no power to ban the State organized lotteries — Exercise of power for this purpose is illegal.
Section 144, Cr.P. C. is primarily to be used to defend accuseds rights because provision of Section 144 are emergent in nature and could be used only when there is apprehension of breach of public peace, disturbance of public tranquillity, danger to human life, health or safety, or a riot, or an affray. It cannot be denied that there may be cases of suicide or murder on account of depression and frustration in not becoming successful. But that by itself is no ground to invoke the provisions of Section 144. That is not the proper remedy. The ban could be imposed by bringing a Legislation in this respect by the Central Government. Moreover sale of State organized lotteries cannot be banned by another State under the garb of Section 144 Cr.P.C.
In umteen number of cases the Apex Court has opined that the State organized lotteres cannot be banned unless by an act of Parliament. thereforee, in the absence of any law on the point, to my mind, the NCT of Delhi could not impose the ban after taking shelter under Section 144, Cr.P.C.
Under Sub-section (4) the State Government is empowered to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Commissioner of Police. This clearly indicate that Parliament never intended or allowed an order under Section 144(1) Cr.P.C. to remain in force permanently. Such an order cannot be called a permanent or a semi-permanent in character. Then the question arises what will happen to such a notification after six months. Can the State Government issue another notification of similar kind to extend the previous one? Does the word notification appearing in proviso means a number of notifications. The answer will be in the negative. Since the proviso to Sub-section (4) of Section 144 itself is of a temporary character, by issuing repeated notification a permanent or semi permanent character cannot be attached to the same. By invoking the provision of Sectin 144 the State cannot ban this trade for all times to come. For that there has to be a legislation which unfortunately in this case is not there. thereforee, the State cannot be permitted to achieve under the garb of Section 144 which it could not achieve through an act of Parliament.
Section 144(4) — Notification by State Government — Meaning of — lt does not means an administrative order on the file — Notification published after the order of Commissioner of Police lapsed — Invalid — The ban imposed by Police Commissioner/State Government becomes inoperative.
Proviso to Sub-section (4) of Section 144 requires a notification and not an administrative order in the file. An administrative order and Gazette Notification represent two distinct and different aspects. Mere fact that an order was there in the file of 23rd February, 1996 approving the draft Notification by the Lt.Governor by itself will not change the legal position. Notification in the Official Gazette is a precondition to save the order passed by the Commissioner of Police.
The purpose of issuing the notification is that the public should know that the prohibitory order had been passed by the Government thereby extending the order already passed by the Commissioner of Police. That is why in the proviso to Sub-section (4) of Section 144, Cr.P.C. the word "notification" has been used and not an administrative order.
( 1 ) PETITIONER M/s M. S. Associates has assailed the order dated 26th December, 1995, passed by the Commissioner of Police under Section 144 of the Code of Criminal Procedure In Short Cr. P. C.) thereby prohibiting lottery trade in Delhi w. e. f. 28th December,1995. This order was passed because it was apprehended that sale. of lottery tickets and the connecting activities are likely to cause disturbance of the public tranquility and public morale and breech of peace and danger to human life and property in the National Capital Territory of Delhi (in short NCT of Delhi ). This order was to remain in force for a period of 60 days i. e,. upto 25th February,1996 unless withdrawn earlier. Subsequent thereto the Government of NCT of Delhi issued a Notification published in Part-IV of Delhi Gazette (Extra Ordinary) dated 28th February,1996 indicating therein that order of 26th Decmber,1995 made by Commissioner of Police, Delhi shall remain in force for a further period of six months commencing from 26th February,1996.
( 2 ) PETITIONERS have felt aggreived with the impugned Notification dated 28th February, 1996 issued by respondent No. 2 i. e. NCT or Delhi. The said order has been assailed, inter alia, on the ground that no Notification could be issued after the order of Commissioner of Police under Section 144 Cr. P. C. had already come to an end. Since the impugned Notification of 28th February,1996 was issued after the expiry of the order of Commissioner of Police, therefore, it is bad in law because by this Notification the Government could not have revived the dead order. Section 144 Cr. P. C. cannot be made operative retrospectively, secondly the business of lottery does not in any way endanger human life, safety or could cause riots or any affray. Nothing has been indicated in the impugned Notification dated 28th February,1996 that there has actually been any breech of peace or any acts of affray or acts of riots. State organised Lotteries cannot be banned under the Law. Therefore, invocation of the provisions of Section 144 Cr,p. C. was by way of a camouflage to overcome the prohibition contained under the law from banning the sale of State organised lotteries.
( 3 ) TO appreciate the points raised by Mr. D. C. Mathur, Senior Advocate for the petitioner and refuted by Mr. S. K. Aggarwal, Standing Counsel for the State, we must have a quick glance at the admitted facts of this case. Those are, that petitioner is a sole selling agent in Delhi of lotteries organised by the State of Nagaland. The Joint Director (Lotteries), Government of NCT of Delhi vide letter dated 21st July,1994 gave permission to the Government of NCT of Delhi to close down Delhi Lotteries w. e. f. 1st January,1995. Sales tax at the rate of 20% was imposed on the sale of lotteries run by other States w. e. f. 20th December,1994. It was found that inspite of these measures, the menace caused by the lotteries did not abet. Commissioner of Police received reports to the effect that on account of lottery menace which has resulted in spurt in various crimes in Delhi besides unhealthy competition between lottery sellers having ill effect of the addiction of the innocent public. It was found that being lured by the hope of winning the lottery, the young and poor wage earners and working masses, recklessly start gambling till they are finally exhausted. It was in this background that the Commissioner of Police thought that on account of being addicted to lotteries, it will endanger human life and safety. Therefore, by invoking the provision of Section 144 Cr. P. C. he promulgated prohibitory order banning the sale of lotteries in Delhi vide order dated 26th December,1995. The order of prohibition was to be effective from 28th December,1995. The prohibitory order issued by the Commissioner of Police under Section 144 Cr. P. C. was to be in force for a period two months. In the normal circumstances it would have come to an end on 25th February,1996. It is
