IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 16TH DAY OF OCTOBER 2009/24TH ASWINA 1931 Crl.MC.No. 1516 of 2006 ( ) --------------------------- (CRIME NO. 1516 OF 2006 OF OLLUR POLICE STATION) PETITIONER(S)/6TH ACCUSED: ------------------------- KANNAN, S/O.BALAN, AGED 37 YEARS, PULINKUZHI HOUSE, THAIKATTUSSERY THRISSUR. BY ADV. SRI.K.I.SAGEER COMPLAINANT(S)/COMPLAINANT: --------------------------- STATE OF KERALA, SUB INSPECTOR OF POLICE OLLUR POLICE STATION (CRIME NO.185/2006) REP. BY SUB INSPECTOR OF POLICE HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C. No.1516 of 2006 ------------------------------------------------------------- Dated this the 15th day of October,2009 ORDER This petition is filed to quash the F.I.R. on the basis of which crime is registered against petitioner and others. Petitioner is the 6th accused in the crime. 2. The allegations made against the accused in this case are that petitioner and others were selling lottery tickets in violation of Section 4 of Lottery Regulation Act. They were also engaged in buying single number lotteries of Bhutan Government and police party seized an amount of Rs. 4698/-, a T.V. set, a table and various types of lotteries of Bhutan Government. 3. According to petitioner, he is only a retail dealer of lottery tickets organized by the Government of Bhutan. The authorised wholesale dealer of Bhutan Government lotteries has taken registration under the KGST Act and CST Act and paying sales tax on each draw of such lotteries as provided under the KGST Act. Therefore, no offence is made out against petitioner, it is contended. [Crl.M.C.No.1516/2006] 2 4. Heard both sides. It appears from the petition that the State of Kerala had in November 2003, apparently in exercise of powers under the Kerala State Lotteries and Online Lotteries (Regulation) Rules, 2003 issued a public notification prohibiting the sale of lotteries of other State Governments without permission from the State of Kerala. This was challenged before this Court and as per interim order dated 19.12.2003 in I.A.No.2821/03 in W.A.No.2044/03 a Division Bench of this Court was pleased to hold that the actions of the authorities of State under Rule 24 were prime facie unsustainable and they were restrained from enforcing sub-rule (3) of Rules 24 or from suspending sale of tickets by invoking Rule 24(10). However, the Division Bench dismissed the appeals as per order dated 17.5.2004 and hence the interim order is not in force now. 5. The matter was taken up before the Supreme Court and Supreme Court by an order held that the interim order which were in force during the pendency of the matter before this Court shall continue. However, when retailers of Online lotteries approached this Court in WP(C) No.18547/07 and connected cases seeking an order permitting them to open their shops and a Single Bench of this Court, as per judgment dated 16.8.2004, [Crl.M.C.No.1516/2006] 3 permitted the institution of criminal complaint for violation of Section 4 of Lotteries Act etc., notwithstanding the direction issued by the Supreme Court. It was under such circumstances that cases were registered against retailers. 6. The State of Meghalaya and others challenged the judgment directly before the Supreme Court and the Supreme Court admitted SLP and passed an order that the interim orders of this Court shall continue pending appeal. In such circumstances, this petition is filed to quash the F.I.R. Learned counsel for petitioner submitted that the matter is pending before the Supreme Court and the case is posted to December and therefore the case may be adjourned to some date in December. 7. I am not inclined to allow this prayer since this is a crime of the year 2006 registered about more than 3 years back and the matter is spending for a very long time, only because a decision is awaited in similar matter which is pending before Supreme Court. Learned counsel submitted that petitioner may be permitted to take up the same contentions before lower court and subject to this petition may be disposed of. 8. On hearing both sides, I am satisfied that the crime was registered on the basis of a direction/observation made by a [Crl.M.C.No.1516/2006] 4 Single Bench of this Court to the effect that criminal prosecution can be launched in a case of this nature. Therefore, I do not find any ground to quash the complaint. However, petitioner will be at liberty to raise the same contentions regarding maintainability of the prosecution. I need not keep this case pending, awaiting order from the Supreme Court in the matter. It is needless to say that petitioner will be entitled to the benefit of any order that may be passed by the Supreme Court in the matter. This petition is disposed of. Sd/- K. HEMA, JUDGE. krs.