IMPORTANT POINT
A competition in order to avoid the stigma of gambling must depend to a substantial degree upon the exercise of skill. Therefore, a competition success wherein does not depend to a substantial degree upon the exercise of skill is not recognized to be of a gambling nature - Gambling activities from their very nature and in essence are extra commercial although the external forms, formalities and instruments of trade may be employed, and they are not protected either by Article 19(1)(g) or Article 300 of the Constitution

ORDER :

1. Heard Mr. Ashish Dagli, learned advocate for the petitioner and Mr. J.K. Shah, learned APP for the respondents, through video conference.

2. Present petition has been filed by the petitioner - proprietor of Honest Online Marketing, under Article 226 of the Constitution of India, praying for the following main relief:-

“(26)(A). YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent authorities not to enter and obstruct the business of the petitioner and his franchises and also direct them not to consider the business activities of the petitioner and its franchisees as a “gambling activities.”

3. As per the case of the petitioner, the petitioner is the proprietor of Honest Online Marketing, having its registered office at Vadodara. The petitioner is having business of selling, marking and or tread into the product popularly known as “Vastu Pooja Yantra” and business activity of selling of the aforesaid product of the petitioner is that the retail outlet of the petitioner would sell the Vastu Pooja Yantra. Online system has been devised to ensure that a Yantra could be sold to an individual customer along with coupon carrying a gift of silver coin and in the event if the coin is not available, the customer could be given a cash amount worth Rs. 100/-. As a part of the sponsored activity, the online draw would be condu cted at a retail outlet in each city and accordingly, the coupon can be offered to a customer haing a purchase of Yantra. In lieu of silver coin, the company has also arranged to offer an equivalent cash amount i.e. Rs. 100/- in the event if the customer wishes to have case amount in place of silver coin. Meaning thereby, the entire online draw in relation to an activity of selling Yantra Does not in any way involve an element of gambling and that it is a pure marketing scheme to Promote the sale of the product i.e. Yantra.

4. The learned advocate for the petitioner has further submitted that the respondents Authorities visited the place of the petitioner and they are creating obstructions in running their business and they are also threatening present petitioner and also to the customers of the petitioner. Therefore, the present petition is filed by the petitioner seeking direction upon the respondents Authorities not to enter and obstruct the business of the petitioner.

5. Learned advocate for the petitioner submitted that the petitioner and its Franchises’ are not doing any activity, which can be said as illegal and not permissible as the Bombay Prevention Gambling Act or Bombay Police Act. He further submitted that the business activities of the petitioner are run by way of online lucky draw scheme and same is permissible under the law. The petitioner is only offering Silver Coin worth Rs. 100/- to the purchaser, whose ID is selected in the online lucky draw as an incentive on their purchase and if the Silver Con is out of stock then the cash amount of Rs. 100/- (equal to the price of Silver Con) is given. This incentive scheme is only available to the purchaser of the products of the petitioner and therefore, such activities cannot be considered at all Gambling activity under the law. There are numbers of consumers product available in market which is marketed on Television also and online draw and computer draw are made and same are not considered as Gambling. He further submitted that the petitioner is not doing any activity which is violative of public good and public purpose or which can be said as an offence under the Bombay Prevention Gambling Act and the Bombay Police Act or any other law.

6. The learned advocate for the petitioner has further submitted that this Court in the writ petition being Special Civil Application No. 2244 of 2013 by way of passing judgment and order dated 04.03.2013 had come to a conclusion that the element of wagering and betting were totally absent in online d