Full Bench Clarifies Police Powers Under Maharashtra Gambling Act, Holds ASP/DySP Do Not Need Special Empowerment for Personal Actions

Mumbai: In a significant ruling resolving a conflict between two division benches, a Full Bench of the Bombay High Court has held that an Assistant Superintendent of Police (ASP) or Deputy Superintendent of Police (DySP) possesses the inherent authority to exercise powers of entry, search, seizure, and arrest under Section 6(1)(ii) of the Maharashtra Prevention of Gambling Act, 1887, without requiring special empowerment from the State Government for personal action.

The decision, rendered by a Full Bench comprising Justice Mangesh S. Patil , addressed a reference necessitated by incompatible views expressed by different division benches regarding the interpretation of Section 6(1) of the century-old Act.

The Conflicting Views

The issue arose from conflicting interpretations of Section 6(1)(ii), which governs the powers of police officers and magistrates in areas outside Commissionerates.

• In Dilip Namdev Irale Vs. State of Maharashtra & Ors. (2019 SCC OnLine Bom 2514) , a division bench had held that a Deputy Superintendent of Police who conducted a raid was not specially empowered by the State Government, rendering the raid illegal based on the specific wording of Section 6.
• Conversely, in the present matters, another division bench, referring to the Supreme Court decision in State of Gujarat Vs. Lalsing Kishansingh (1980 Cri.L.J. 1413) and a pre-independence Bombay High Court judgment in Emperor Vs. Abasbhai Abdulhussein (AIR 1926 Bom. 195) , disagreed with the Dilip Namdev Irale view. This bench opined that since the raid was effected by an ASP, there was no requirement for him to be specially empowered by the State Government to exercise the powers under clauses (a) to (d) of Section 6(1). They held that officers named in clause (ii), including ASP/DySP, are expressly empowered for personal action.

The reference was made to the Full Bench to resolve this judicial divergence.

Arguments Presented

Advocates for the applicants argued that a plain reading of Section 6(1)(ii) clearly mandates special empowerment by the State Government for ASPs/DySPs to exercise the powers under sub-clauses (a) to (d). They highlighted the difference in wording between clause (i) (Commissionerate areas, where the Commissioner is expressly empowered to issue warrants or act personally) and clause (ii) (elsewhere), suggesting a legislative intent not to grant direct personal power to officers under clause (ii) unless specially empowered. They relied on several past judgments, including pre-independence rulings and a single bench judgment of the Bombay High Court.

The learned Public Prosecutor, supporting the view taken in the referring order, contended that the distinction between clause (i) and clause (ii) lies only in the power to issue warrants to subordinates. He argued that Magistrates, Superintendent of Police, ASPs, and DySPs mentioned in clause (ii) themselves possess the power to take action under sub-clauses (a) to (d). Special empowerment is needed only if they wish to issue warrants authorizing subordinate officers to exercise these powers, a power automatically vested in the Commissioner under clause (i). He cited State Government notifications empowering certain officers under clause (ii) to issue warrants, arguing this demonstrates the State's understanding that personal power under (a)-(d) already exists.

Full Bench's Interpretation and Reasoning

Applying the cardinal principle of plain meaning interpretation, the Full Bench held that Section 6 does not leave room for doubt regarding the legislature's intention. The court analyzed the structure of Section 6, noting that clauses (i), (ii), and (iii) demarcate the officers authorized to act under sub-clauses (a) to (d).

The Bench found that the apparent distinction between clause (i) and clause (ii) is precisely regarding the power to issue warrants to subordinates .

"The only distinction between clauses (i) and (ii) apparently is to the effect that a Commissioner of Police under clause (i) and the District Magistrate, the Sub-Divisional Magistrate and the Superintendent of Police under clause (ii) derive the power to take steps under sub-clause (a) to (d), however, under clause (ii) Taluka Magistrate and the Police Officers mentioned therein cannot issue warrant to the sub-ordinates to exercise the powers under sub-clauses (a) to (d) unless they are specially empowered by the State Government, which power vests in the Commissioner of Police under clause (i)."

The court explicitly rejected the argument that officers in clause (ii), including ASP/DySP, cannot themselves exercise the powers under (a)-(d).

"Submissions of the learned advocates for the applicants that the District Magistrate and the Superintendent of Police and other officers named in clause (ii) even themselves cannot effect/exercise the powers under sub-clauses (a) to (d), is not a correct reading of the provision."

The Bench reinforced its interpretation by drawing support from the principle established in Emperor Vs. Abasbhai Abdulhussein , which suggested that an officer empowered to issue a warrant for an act can also perform that act personally. Though State of Gujarat Vs. Lalsing Kishansingh primarily interpreted clause (i), the Full Bench found its reasoning, which concluded the Commissioner had personal power as he could authorize subordinates, could be applied by analogy to officers under clause (ii) like the Superintendent of Police, and by extension, ASP/DySP for their personal actions.

Furthermore, the court noted the consistent practice of the State Government over many years, which has issued notifications only to specially empower Taluka Magistrates and Assistant/Deputy Superintendents of Police to issue warrants to subordinates. The absence of notifications empowering District Magistrates, Sub-Divisional Magistrates, or Superintendents of Police to exercise the powers under (a)-(d) themselves suggested the State's long-standing understanding that these officers already possessed such inherent personal power under clause (ii).

Conclusion

Based on this analysis, the Full Bench preferred the view expressed by the division bench in the present matters over the view in Dilip Namdev Irale .

The court answered the referred issue in the affirmative, holding that an Assistant Superintendent of Police - ASP, without having been specially empowered by the State Government, has the authority to exercise power covered by sub-clause (a) to (d) of the Section 6(1) of the Maharashtra Prevention of Gambling Act, provided he performs the action personally.

The matters will now be placed before the appropriate bench for final adjudication in accordance with this Full Bench decision.

The ruling brings clarity to the powers of senior police officers under the Act, affirming their ability to conduct raids and take necessary actions against illegal gambling establishments personally, even in areas outside Commissionerates, without needing specific government notification for each such action.