L.P. Barplungpa, Director of State Lotteries vs Director of State Lotteries and Others

The learned Single Judge of this Court has vacated the earlier stay order. By the stay order the learned Single Judge has stayed the investigation against the Petitioner, Director of State Lotteries, Sikkim. This investigation has been started at the instance of the police report made against him and the others. This report has been filed by the Director of State Lotteries, Government of West Bengal and suggests that it is being made against M/s. Playwin, their Directors, Managers, Secretaries, etc. They are selling agents, promoters, traders as well as the Director of state Lotteries, Sikkim and others. It is suggested therein that the accused have entered into criminal conspiracy and running on line lotteries in the State of West Bengal in violation of the provisions of the Section 4 of the Lotteries Regulation Act. 1998. It seems that on the basis of this a criminal case came to be registered and writ petition came to be filed on behalf of the Director of State Lotteries of Sikkim for quashing this F.I.R. as well as the resultant investigation therefore. Initially, there was a stay in the nature of an injunction restraining the authorities from investigation into this matter. However, later on by the impugned order the stay order came to be vacated. Learned Judge pre-dominantly went on the basis of the order passed by the Division Bench in Matter No. 99-100 of 2005.

It must be clarified immediately that the appeals in Matter No. 99-100 of 2005 are not at the instance of the Director but at the instance of the marketing agents and selling agents etc. of those lotteries.

Be that as it may, the Learned Counsel for Appellant urges before us that there would be no point in allowing the investigation to proceed. The Learned Counsel(places two reasons for that, firstly, the Learned Counsel relies on the interim order passed by the Supreme Court of India dated 28.2.2005 in T. Senthil Kumar-v.-Inspector General of Police and Others, wherein the Supreme Court had passed the following order.

Upon hearing Counsel the Court made the following

ORDER

Mr. T.C. Sharma, Adv. accepts notice on behalf of Respondent Nos. 1 to 6. Mr. Ashim Sood, Adv. appearing for Ms. Purnima Bhai, Advocate on record, accepts notice on behalf of Respondent No. 7. Service is thus complete.

Counter-affidavit be filed within two weeks from today and rejoinder any, within two weeks thereafter.

To be listed after four weeks.

In the meantime, prosecution of the Petitioners is stayed.

The learned Senior Counsel very earnestly argues us that in view of the order passed by the Supreme Court of India we also should stay the investigation, prosecution of the Petitioner, the second reason given by the Learned Counsel is that there is nothing incriminating in F.I.R.

The argument of the learned Senior Counsel cannot be acceded to for the following reasons:

a) In the first place, the Supreme Court has not in any manner stayed the investigation against the Petitioner therein appearing before the Supreme Court. We have, been told at the bar and that is not disputed that the persons before the Hon''ble Supreme Court are not the Directors of the State Lotteries but the selling agents or the marketing agents etc. Therefore, what applies to them need not necessarily apply to the Director.

b) Secondly, we may further clarify that even the, Supreme Court has not stayed the investigation against these persons but has stayed prosecution. However, we cannot stay even the investigation against the Director, in view of the clear legal position. The F.I.R. is for an offence u/s 7 and on the ground that the provisions of the Act are breached. That would be covered u/s 7(1) of the Act. Section 8 makes the offences under this Act cognizable and non-bailable. The case of the prosecution appears to be that there has been breach by the Director of Sikkim Lotteries amongst others. Sub-sections (a) and (h) of Section 4 provide that a State government may organise/conduct or promote a lottery, subject to the following conditions, namely:

a) prizes shall not be offered or on any pre-announced number or on the basis of a single digit;

(h) no lottery shall have more than one draw a week.

If we strictly consider these two provisions the breach thereof would not be at the instance of the sells of the ticket or the marketing manager of the ticket but essentially by the Director whose brain-child this lotteries must be presumed to be. If the prizes are offered on the single digit which s a case pleaded by the State or there are more than one draws in a week, then the person directly responsible for this would be the Director Section 7 is very specific in this behalf and suggests:

Where a lottery is organized, conducted or promoted after the date on which the Act is received the accent of the President, in contravention of the provisions of this Act, by any Department of the State Government, the Head of the department shall be punishable with rigourous imprisonment for a term which may extend to two years or with fine or both.

There is no denial that the Petitioner is the head of the department of the Sikkim Lotteries. Therefore, if it is found that the Sikkim Lotteries offer prizes on the basis of a single digit or further if it is found that there are more than one draw in a week. This of course is a prima facie view. In that view it is clear that a Director cannot be on the same pedestral as that of the marketing Agents or the sellers of the lottery tickets. In that view in our opinion, even if the Apex Court has granted the stay of the prosecution of the marketing agents or the sellers of the lottery tickets the same logic would not necessarily be applied to the director who is on a different footing if not a higher pedestral.

As for the second argument we have seen the F.I.R. It contains the ingredients of the offence. The F.I.R. need not be an elaborate document.

In that view we do not wish to stay the investigation and in that view we would dismiss the appeal treating it on the day''s list and also by refusing the stay of the order of the learned Single Judge.

Parties concerned are to act on signed xerox copy of this dictated order or the usual undertaking.