IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 1ST DAY OF DECEMBER 2011/10TH AGRAHAYANA 1933 Crl.MC.No. 1901 of 2004 ( ) --------------------------- PETITIONER(S)/ACCUSED:: ---------------------- RAJESH MATHEW, S/O. M.T.MATHEW, AGED 26 YEARS, RESIDING AT NELLUNILKUM THADATHIL KALATHOOR P.O., KOTTAYAM (PROPRIETOR, THEKKEKARA FORTUNES SUPER LOTTO, PALA ROAD, ETTUMANOOR KOTTAYAM-686 631). BY ADVS.SRI.P.SANJAY SRI.A.PARVATHI MENON COMPLAINANT(S)/COMPLAINANTS:: ----------------------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE ETTUMANOOR POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR. 2. DISTRICT LOTTERY OFFICER, KOTTAYAM. BY ADV. PUBLIC PROSECUTOR SRI.NOUSHAD THOTTATHIL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ds Crl.MC.No. 1901 of 2004 ( ) APPENDIX PETITIONERS EXHIBITS: A1: COPY OF THE ORDER IN I.A.NO.2821/03 IN W.A.NO.2044/03 DATED 19.12.03. A2: COPY OF THE ORDER IN C.A.NO.3089/04 & 3090/04 DATED 17.05.04 OF THE HON'BLE SUPREME COURT. A3: COPY OF THE NOTICE DATED 18.05.04. A4: COPY OF THE RECEIPT DATED 18.05.04. A5: COPY OF THE FIR IN CRIME NO.209/04 OF ETTUMANOOR POLICE STATION. A6 COPY OF THE ORDER IN CRL.M.A. 7144/04 IN CRL.M.C. 1677/04 DATED 6.07.04. RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE ds P.S. GOPINATHAN, J. - - - - - - - - - - - - - - - - - - - Crl.M.C. NO.1901 OF 2004 - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2011 O R D E R This petition under Section 482 of Code of Criminal Procedure is filed by the first accused in Crime No.209 of 2004 of Ettumanoor Police Station seeking an order to quash Annexure A5 Information Report. 2. The petitioner has been running an outlet for sale of online lotteries run by the State Government of Sikkim, Misoram etc. State of Kerala issued an ordinance banning the sale of online lottery tickets run by the other State Governments. Later the ordinance was substituted by the Kerala State Lotteries and Online lotteries (Regulation)Rules, 2003 (Kerala Rules) (herein after referred to as 'the Rules') Despite the ban imposed by the Rules, the petitioners and others carried on the sale of online lottery tickets. State Government, thereupon searched all such outlets where Crl.M.C.No.1901/2004 -2- online lotteries of other states were being sold, seized tickets and sealed the shop rooms. The petitioner and others challenged the validity of the Rules with a plea that the Rules are ultra vires the Constitution and the Lottery Regulation Act, 1998. 3. One of the writ petitions is W.P.C. No.35368 of 2003. Though interim stay against implementation of the Rules was granted, by judgment dated 17/11/2003, that writ petition was dismissed by the learned Single Judge. Aggrieved by the judgment, an appeal was filed as writ appeal No.2044/2003. The Division Bench also granted a stay of implementation of the Rules. But the writ appeal was subsequently dismissed. Thereupon, all the outlets of such lottery agents were sealed by the State Government. 3. Against the judgment dismissing the writ appeal, some of the petitioners preferred special leave petitions which were admitted. In civil appeal No.3089 of 2004, status ante judgment in writ appeal was ordered to be maintained. On the basis of that interim order, petitioner Crl.M.C.No.1901/2004 -3- requested the authorities to open the outlet by notice in writing. The authorities did not heed. Thereupon the petitioner forcefully opened the sealed outlets, entered the shop room and started business. As against that, the above case was registered alleging offences under Sections 183, 187, 188 and 447 of the Indian Penal Code. 4. According to the petitioner, in the light of the order of the Supreme Court, which is still in force, the prosecution launched is illegal and not sustainable. With these pleadings Annexure A-5 was sought to be quashed. 5. I have heard Adv. Sri. P. Sanjay and learned Government Pleader Sri. N. Noushad Thottathil. It is admitted by the learned Government Pleader that some of the parties, being aggrieved by the registration of the case, approached the Apex Court. Apex Court initiated contempt proceedings and the Chief Secretary was summoned. Chief Secretary appeared and submitted that the case was registered by mistake and what ever was done would be undone. It is also submitted that yet another First Crl.M.C.No.1901/2004 -4- Information Report was quashed by this Court by order in Crl.M.C. No.616/2006 and that in the light of the above order and the circumstances stated, Annexure A-5 FIR is liable to be quashed. I find no reason to decline the relief. In the result, while allowing this petition, Annexure A-5 FIR in crime No. 209/2004 of Ettumanoor police station, would stand quashed. Sd/- P.S.GOPINATHAN, JUDGE. //True copy// P.A. to Judge ds