TaxTMI 
TaxTMI 
2015 (11) TMI 1698
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....27.07.2005 passed by learned single Judge of the High Court in Writ Petition (C) Nos. 14495, 16063 and 19582 of 2005. 2) Brief facts: (a) The State of Kerala, by notification dated 13.01.2005, issued in exercise of the power conferred by Section 5 of the Lotteries (Regulation) Act, 1998, (in short 'the Act'), prohibited the sale of all computerized and online lottery tickets marketed and operated through vending machines, terminals, electronic machines and tickets sold through internet in the State with immediate effect and declared that Kerala shall be a free zone from online and internet lotteries. (b) By a subsequent notification dated 27.01.2005, the State of Kerala decided to prohibit the sale of all lotteries organized, conducted or promoted by the State as well as by every other State Government in the State of Kerala with immediate effect and declared that the State shall hereafter be a Lottery Free Zone. (c) The State of Kerala, in partial modification of the notification dated 27.01.2005, issued a subsequent notification dated 22.04.2005, permitting the sale of paper lotteries organized, conducted or promoted by every State Government includi....
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....tions, they are being disposed of by this common judgment. Points for Consideration: 4) The sole question for consideration before this Court is whether the State Government can discriminate between the paper lottery and online lottery in pursuance of the provision of Section 5 of the Act. Rival Submissions: 5) Learned senior counsel for the appellants contended before this Court that online lottery is also a lottery, as defined under Section 2(b) of the Act. So, if the State Government intends to prohibit the same, it has to prohibit all the lotteries whether paper or online. The selective prohibition of the sale of online lottery tickets is impermissible, in the light of Section 5 of the Act, as interpreted by this Court in B.R. Enterprises vs. State of U.P. and Others (1999) 9 SCC 700. The distinction drawn by the State Government between paper lottery and online lottery is discriminatory and violative of Article 14 of the Constitution of India. Learned senior counsel further contended that the impugned notification is vitiated by mala fides. It was further alleged that the State Government is being controlled by the paper lottery mafia and under its influence the sale ....
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....d to consider some point or other. 7) Learned senior counsel further contended that this Court, in B.R. Enterprises (supra), has read down Section 5 of the Act, to save it from the vice of unconstitutionality, emanating from conferring unbridled power on the State, which may be termed as abdication of the essential legislative function, by failing to provide guidelines for the exercise of that power. In the said decision, in paragraphs 84 and 87, it was held as follows: "84. In Section 2(b) lotteries are defined to be a Scheme for distribution of prizes by a lot or chance. This definition itself recognizes that even in State lotteries the prizes are to be collected by chance without any skill, hence gambling in nature. Section 3 prohibits that no State lotteries can be organized without the condition stipulated under clauses (a) to (k) of Section 4. Section 4 provides the conditions to be complied with by the State lotteries. To initiate any State lottery it is left to the policy of each State, for this Act is silent. The only control is, in case it decides, then it must follow the conditions as laid down under Section 4. Next comes Section 5 which is subject m....
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.... the question which remains is, if any State decides that it does not want any lotteries but if it feels helpless as having no jurisdiction over the lotteries organized by other States, what is the way out ? This can only be done by Parliament or by entrusting this power on such State desiring so, which has been done through Section 5. In this background, for this helplessness of a State as recorded in Anraj case-I [(1984) 2 SCC 292] the remedy is provided by entrusting this power on the State under the impugned provision. This helps such State to achieve its objective of lottery (gambling) free zone within its territory. A well-concerned remedy. Next question is what could have been the guideline? If State lotteries are gambling and it cannot be terms as 'trade and commerce' at common parlance for any free right under the Constitution. Such right though recognized under Article 298, so other States may continue to enjoy till prohibited by valid law, and if any State wants within its State lottery-free zone and for which the power is entrusted to such State, it cannot be said in this setting and background and the nature of the subject that such a delegation is of its essential leg....
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.... can be exercised by the State while running its own lottery or can be exercised only where such State does not run its own lottery. This leads to two possible interpretations, as referred to above. In view of settled principle of interpretations, the interpretation given by the union to read down the provision has substance. This would mean that the State could only exercise such discretion if it decides not to have any lottery within its territory including its own lottery. In this situation, the delegate is tied down by this limitation which itself is a clear guide to a State hence cannot be said to be unbridled delegation. So even to the first part it cannot be said to be arbitrary or unbridled. So, we have no hesitation to approve the interpretation given by the Union to uphold the validity of Section 5." Relying on the above quoted paragraphs, learned senior counsel for the appellants vehemently contended that the State shall either prohibit the sale of all lotteries or allow the sale of all lotteries in the State. Selective prohibition of a particular type of lottery is impermissible in the light of the above binding judgment. 8) In support of this submission learned seni....
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....implement the lottery schemes, provide infra- structure and technology, print lotteries and participate in the conduct of draws. Section 4(h) of the Act prohibits holding of draws, more than once in a week. This restriction has been made taking into account the conduct of paper lotteries. But, in online lotteries, 70 to 100 draws are made every day in a week. On the above grounds the respondents prayed for dismissal of the appeals. Discussion: 10) Before going into the validity of the impugned notification, it is fruitful to refer to certain provisions of the Act. The relevant portion of the Statement of Objects and Reasons for framing this legislation is as under: "The conduct of certain types of lottery trade in the country, the malpractices thereof and their impact on the poorer sections of the society has been under scrutiny of the Government for quite some time. The continued prevalence of the popularly known single digit and instant lotteries and the temptation offered by them proved to be the undoing of many families, especially poor daily wagers and low income groups. In spite of the guidelines issued by the Central Government over a period of time as also th....
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....or promoted by every other State. 6. Prohibition of organization etc., of lottery.-The Central Government may, by order published in the Official Gazette, prohibit a lottery organized, conducted or promoted in contravention of the provisions of Section 4 or where tickets of such lottery are sold in contravention of the provisions of Section 5. 7. Penalty.-(1) Where a lottery is organized, conducted or promoted after the date on which this Act receives the assent 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 rigorous imprisonment for a term which may extend to two years or with fine or with both: Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the contravention was committed without his knowledge or that he exercised all due diligence to prevent the commission of such contravention. (2) Notwithstanding anything contained in sub-section (1), where a contravention under this Act has been committed by a Department of Government and it is proved that the c....
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....'). In this background, it is also relevant to quote Section 4 of the Code which reads as follows: "4. Trial of offences under the Indian Penal Code and other laws:- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." Since no provision is made for investigating the offences under the Act, the provisions under the Code will apply to its investigation, by virtue of Section 4(2) of the Code quoted above. 12) It is also relevant to mention the Notifications issued by the State Government from time to time. "Government of Kerala Reg. No. KL/TV(N)/12/2003-2005 KERALA GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY Vol.L Thiruvananthapuram 13th January, 2005 2....
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.... of Kerala with immediate effect. AND WHEREAS the Government of Kerala have decided to prohibit the sale of tickets of all lotteries organized, conducted or promoted by every other State Government also; NOW THEREFORE, in exercise of the powers conferred by Section 5 of the Lotteries (Regulation) Act, 1998 (Central Act 17 of 1998) and all other powers enabling for it, the Government of Kerala hereby prohibit the sale of tickets of all lotteries organized, conducted or promoted by every other State Government including lotteries organized, conducted or promoted by the Government of Kerala in the State of Kerala with immediate effect and declare that the State of Kerala shall hereafter be a Lottery Free Zone. By order of the Governor. P. MARA PANDYAN, Secretary to Government Explanatory Note (This does not form part of the Notification, but is intended to indicate its general purport). Government of Kerala have decided to make the State of Kerala a Lottery Free Zone. This notification is intended to achieve the above object. II G.O.(P) No.11/2005/TD dated, Thiruvananthapuram, 27th January, 2005. S.R.O.No. 74/2....
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....ala Gazette Extraordinary No. 77 dated the 13th January, 2005 prohibiting the sale of computerized and online lottery tickets in the State of Kerala. AND WHEREAS, by Notification No. I issued as G.O. (P)No.11/2005/TD dated 27th January, 2005 and published as S.R.O.No. 73 in the Kerala Gazette Extraordinary No. 169 dated the 27th January, 2005, the Government of Kerala prohibited the sale of tickets of all lotteries organized, conducted or promoted by every State Government including that of State of Kerala and declared the State as a Lottery Free Zone. NOW THEREFORE, in exercise of the powers conferred by Section 5 of the Lotteries (Regulation) Act, 1998 (Central Act 17 of 1998) and in partial modification of the Notification issued as S.R.O. No. 73/2005 dated the 27th January, 2005, the Government of Kerala hereby lift the prohibition partially by permitting the sale of paper lotteries organized, conducted or promoted by every State Government including the State of Kerala provided that the prohibition imposed on the sale of computerized and online lottery tickets organized, conducted or promoted by every State Government shall continue to remain in force and the....
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....it is a class in itself. 14) In the case on hand, we are mainly concerned with the provisions of Section 5 and Section 6 of the Act. These two Sections cover different fields. Section 5 deals with prohibition of sale of tickets, whereas Section 6 deals with prohibition of conduct of the lottery itself. So, Section 5 enables the State Government to prohibit the sale of tickets of lotteries run by every other State Government. The grounds on which prohibition of sale of tickets can be made are not detailed under Section 5. But, the same can be gathered from other provisions of the Act and also by reference to the Object and Scheme of the Act. Going by the scheme of the Act, it appears that violation of any of the conditions contained in Section 4 could be a ground for the State Government to prohibit the sale of tickets of a particular lottery, organized, conducted or promoted by any other State Government. If the State Government thinks it fit, it may prohibit the sale of all lottery tickets in the State and make it a lottery free zone. Section 6 empowers the Central Government to prohibit a lottery run by the State Government. The Central Government can prohibit the running of a....
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....ct and lottery tickets are being sold in various lottery playing States in India including the State of Kerala. The State of Sikkim, as pleaded before this Court, substantially depends on the revenue raised by the sale of lottery tickets. It is a north eastern State with no avenues of industrialization. It is the case of the appellants that they started the business of online lottery in the State of Kerala in the year 2003. Online lottery is a tamper proof lottery which has been designed using the aid of modern technology that eliminates all the ills of paper lottery and has greater transparency and is universally recognized as a tamper proof and safe method of conducting lotteries. Modernization led to spurt of computerization, satellite and internet connectivity which bears a great impact on every aspect of life, made things easier and faster and brought in more transparency. Thus began lottery in another form, popularly called "online lottery." The difference in the lotteries of this form is that "online" is free from possibility of any duplication, tamper etc., and is totally transparent. 17) Online lotteries became popular in our country, only recently. It made their presen....
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....hich case the computers makes random generation of numbers itself and transmit them to the central server, which registers the said numbers. In either of the cases after the central server has registered the numbers, it generates a ticket and commands the terminal, which acts like a fax on command and delivers the ticket, which is on an imported thermal paper. The ticket besides containing these numbers contains various codes, details as also bar codes, which ensures against any possibility of any duplication etc. The game is made more interesting and entertaining since the player has option to choose numbers for himself. Like paper lottery in this case also various tickets can be printed and sold as such, however, the same may not sell at all because the player does to like to lose the charm of selecting the numbers himself. However, whatever be the position, all the details regarding the number of tickets sold, their respective playing numbers, the number to tickets sold from each terminal etc. are all available in the central server. The generation of tickets for any particular scheme closes 30 minutes before the holding of the draw and no retail terminal can generate a ticket f....
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....he Parliament on 07.07.1998. At the time of formulating the Act, only conventional paper lottery was being conducted in the country. No online lottery existed at the time of enactment of the Act. The Central Act did not envisage or took into account the online lotteries in the definition clause while stipulating conditions under section 4 of the Act for organizing, conducting or promoting a lottery by a State Government. The conditions stipulated therein are only intended to cover the conduct of paper lotteries. The Government of Kerala has detected the flagrant violations and fraud inherent in the online lotteries and also the illegal activities of the appellants which directly affects more than 15 lakhs people of Kerala who have already been deceived and are being continuously cheated on minute to minute basis. The ill effects of these lotteries had assumed major dimensions in the State. The newspaper reports, petitions from the public and reports from the police reveal the magnitude of its ill effects, which include suicides, divorces, starvation and murders. This created more hardship to the respondent-State. 21) The violations in terms of the Act in the case of Meghalaya, S....
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....nt twice. The findings of the Government of Kerala revealed that the other States, on whose behalf the lotteries are being conducted in Kerala, have least control over them and major source of income from these gambling type of lotteries siphoned by the so-called middlemen who acts in the name of 'sole selling agents'. Similarly, the States of Karnataka and Arunachal Pradesh have stopped the sale of online lotteries as they have admitted the violations pointed out by the State of Kerala. Online lotteries are being conducted under the name of other State Governments, circumventing the provisions of the Act, and also the single digit lotteries through dubious methods adopted by their distributors and agents. In some cases, some lotteries except one digit all other digits will be pre-fixed and the buyer has to choose only a single digit. In some other cases, one digit of two digit number or of three digit number will be changing continuously, but in a pre-determined cyclic manner, which shows that the draw is held only for one digit. It was detected from the lottery terminals that the tickets of States of Meghalaya and Nagaland are being printed one after another from the same termina....
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....ate of Sikkim, the same was called for from this office. iv. As per rule 12 of the Sikkim Online Network Lottery Rules, 2001, the tickets will be printed on pre-printed ticket material. On perusal of the tickets of Super-Lotto and Thunder Ball it is seen that the specimen play slips furnished by the Director of Lotteries, Sikkim bear the imprint and logo of PLAYWIN. This shows that the tickets are instantly printed at the retail computer terminal, violating Section 4(b) of the Lotteries Regulation Act, 1998. v. The contractual agreement between the Play Win sub-agent and the distributors was not furnished. So also the names of distributors for certain districts in Kerala were not furnished. vi. The Government has furnished the details of 926 retail outlets operating in the State. But the contractual agreement between the distributor and these retail outlets were not submitted. vii. The marketing Agent under the Sikkim State Lotteries is empowered to set-up the required infrastructure and use of technology for the draw purpose. It is clearly more than what is statutorily permissible under Section 4(c) of the Act. viii. As per Section 4(e)....
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....digit and instant lotteries and the temptation offered by them proved to be the undoing of many families, especially poor daily wagers and low income groups. In spite of the guidelines issued by the Central Government over a period of time as also the guidelines issued in the recent past by this Court, the evil has not been totally eliminated. 24) The relevant provisions of the Act clearly demonstrate that even though all types of lotteries are meant to be regulated by the said Act, online lotteries were not under the contemplation of the Central Government at the time when the Act came into force. It is otherwise also not a disputed fact that online lotteries became popular insofar as India is concerned only recently and in any case after the enforcement of the Act and that is why the Government of India while framing the 2010 Rules specifically defined 'online lotteries'. Having this background in mind, the Scheme of the Act would clearly show that the Government at that stage was concerned with paper lotteries of all kinds. From the preamble of the Act spelled out from the Statement of Objects and Reasons as re-produced hereinbefore, the necessity to bring about legislation i....
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....e community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and the simple. 27) In Words and Phrases, Butterworths, 3rd Edition at page 71, it is stated as follows: "It must not be entirely forgotten in the construction of these Acts of Parliament (see now the Lotteries and Amusements Act, 1976) that the evil which the lottery law has sought to prevent was the evil which existed where poor people with only a few pence to feed their children would go and put these few pence into a lottery and lose them, and this sociologically was a bad thing..." 28) Even in B.R. Enterprises (supra), this Court has held as under: "47. From the references from Dharmashastra, opinions of distinguished authors, references in the Encyclopaedia Britcannica and Boston Law Review and others, we find that each concludes, as we have observed, lottery remains in the realm of gambling. Even where it is State-sponsored still it was looked down upon as an evil. Right from ancient time till the day all expressed concern to eliminate this, even where it was legalized for raising revenue either by the king or in the modern times....
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....3 of the Act ordains that save as otherwise provided in Section 4, no State Government shall organize, conduct or promote any lottery. A State Government has been authorized to organize, conduct or promote a lottery, subject to the conditions enumerated in Section 4 which has already been re-produced earlier. It is absolutely clear that even though the power to legislate on lotteries vests exclusively with the Parliament, the respective States have been delegated this power, but it has to be subject to conditions enumerated in Section 4. By virtue of the provisions contained in Section 12 of the Act, the Government may, by notification in the Official Gazette, make rules to carry out the provisions of the Act. Exercising the powers vested in it by the provisions contained in Section 12, the State of Kerala has framed the "Kerala Paper Lotteries (Regulation) Rules, 2005." 30) Provisions of the Act, in particular, Section 12 of the Act clearly manifest that even though the power to legislate on the subject 'lotteries' is in the exclusive domain of the Parliament, the power to legislate as well has been delegated by the Parliament to the respective States in the country and as ment....
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....e power under Article 298. It further reveals, till Parliament makes any law, the decision to start its lottery or to close it is exclusively within the executive power of each State. This is because it is the policy decision of a State which has to decide as a principle whether it desires to collect in this form the revenue or not. The benefit of Article 298 is, it is extraterritorial, applicable beyond its territory, it is for this State lotteries are places in Entry 40 List I. So in a federal structure, Union has to play a role to coordinate between one State with the other. So by regulation it has to subserve the objectives. The Union cannot force a State to gamble if such a State does not want to gamble. To run its own lotteries or to close it is left on the discretion of each State. It is each State which has to decide its policy and has to be concerned about its subject. In any case, the Union cannot force any State that it must run its own lotteries. But control of State lotteries running in the territory of other States is left on the Union. The State cannot restrict sales of lotteries organized by other States even in its territory unless authorized by the Union. This dif....
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.... give directions to the State Government for carrying into execution the provisions of this Act, Rule or Order. Sections 11 and 12 are the rule-making power entrusted to the Central and the State Governments respectively. Section 13 repeals the Ordinance. Thus, the whole Act makes clear that the subject it is dealing with is gambling in nature. The object of the Act is not to control the policy decision of each State to start or to close its lotteries, but to regulate it in case a State decides to run its own lottery through modalities and conditions laid down therein. Emphasis of the whole Act is to abide by the conditions strictly if you want to run a lottery. Thus, regulation is through conditions to eliminate even the remotest possibility of malpractices by providing stringent measures for its compliance. Perusal of the Act reveals, the scheme of the Act is limited in its application, and it admits the subject it is dealing is gambling in nature. As we have said, the decision to collect or not to collect revenue through State lotteries is exclusively within the policy decision of the State and for this, neither the Union nor Parliament interferes nor is there any indication und....
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.... It is inbuilt and inherent in the provision itself in view of the scheme of the Act and nature of subject in issue. If interpretation as given on behalf of the State of Tamil Nadu is accepted that delegation of power is absolute, then the submission that such delegation is unbridled without any guideline carries great weight. Submission for the State of Tamil Nadu is that the lotteries may be prohibited in phases, viz. while running its own lotteries yet prohibiting other lotteries, may be as a public policy, for law and order, for political reasons, morality, etc. For surviving such an interpretation given by Mr. Ganguli, Parliament should have provided some guidelines. Such an interpretation falls into the trap of the submission that this delegation is unbridled. So, if there are two interpretations, the interpretation which upholds the validity should be accepted. So, the interpretation as given by Mr. Ganguli cannot be accepted." "85. There are two parts of the attack of the delegation of power to the State under Section 5. The latter part, by which it can prohibit sale of lottery tickets organized by every State which leaves no scope of any discretion on the States to discrim....
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....it has to decide to run its own lotteries to augment its revenue in the larger interest of the public which if weighed with the evil consequences on its subject, the public welfare gains more by running it then the evil consequence on its subject has to give way till the situation changes by finding a better way for this additional source or evil consequences inflicting on its subject overweighing. This exercise has to be by each State, the Union not coming in its way. It is for each State to decide what is its public welfare and what constitutes an injury to the public interest. Rattan Chand Hira Chand vs. Askar Nawaz Jung holds, what constitutes public interest or welfare would depend upon the time. The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of injury. 86. So, whenever a State decides to run or not to run its lotteries it is the State which has to decide as a public policy in the public interest. Once such a decision is taken to have its State lottery-free zone, the entrustment of power by Parliament cannot be said to be ultra vires. 87. We find on plain reading of Section 5, it empowers th....
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....rt further observed that if a State may want it to be a lottery-free zone, it could not be said that such delegation would be of essential legislative power. The only guideline necessary in such a delegation is to see that the State does not pick and choose one State from the other, which guideline is already provided in the Section. If the ban is applied to all the States and also the State banning lotteries, the contention that delegation was excessive, uncanalised and unbridled would lose its sting. We are satisfied that by virtue of the provisions contained in Section 12 of the Act, the Centre has delegated its power to legislate with regard to lotteries to States and further that there is specific delegation with regard to ban of lotteries of other States by virtue of the provisions contained in Section 5 of the Act. This delegation of legislative power of the principal to the delegatee would not amount to abdication of legislative power by the Centre and it would not be without any guidelines and would be sustainable in law if the concerned State may ban a lottery in its own State and of other States as well. What is true with regard to the total ban of lotteries of other Sta....
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....utable to the modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other field of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them." 36) In State vs. S.J. Choudhary (supra), this Court in paragraph 10 had referred to a passage contained in statutory interpretation by Francis Bennion, Second Edition for holding that the Indian Evidence Act, 1872 is by its very nature is an "ongoing Act". Paragraph 10 of the judgment is reproduced below:- (2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded i....
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....(an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law."" 38) With the ongoing development in the field of science and technology, even though the online lotteries were not in vogue in 1998 when the Parliament had passed the Act, it came into existence at a later point of time. The principles laid down by this Court in B.R. Enterprises (supra) would apply to the paper lotteries which were in existence at that point of time. The principles laid down therein would also apply to online lotteries or internet lotteries by treating them as a separate class. The principle laid down therein is that if the State Government has to prohibit any lottery organized, conducted or promoted by every other State, it has to prohibit the sale of its own lottery also. Meaning thereby, if a paper lottery is being prohibited by a particular State then that paper lottery has to be prohibited as a whole. Likewise, if online or internet lottery is to be prohibited by a....