IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 24704 of 2009(G) ----------------------------------------- PETITIONER(S): --------------------------- DEVDHAN LOTTERY SERVICES (DLS), 40/8942, CRH BUILDINGS, M.G.ROAD, ERNAKULAM, COCHIN-682 035, A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER JOY JOHN. BY MR.M.K.DAMODARAN, SENIOR ADVOCATE, MR.O.V.MANIPRASAD. RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. CITY POLICE COMMISSIONER, KOCHI CITY, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION MR.V.G.GOVINDAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24704/2009 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION FROM THE JYOTHIS PROJECT. P2: COPY OF THE NOTICE DTD. 03/07/2007 OF THE 2ND RESPONDENT. P3: COPY OF THE LETTER DTD. 08/08/2007 OF THE PETITIONER FIRM TO THE 2ND RESPONDENT. P4: COPY OF THE NEWS ITEM APPEARED IN VEEKSHANAM DAILY DTD. 23/08/2007 AND MALAYALA MANORAMA DAILY DTD. 07/07/2007. P5: COPY OF THE LETTER DTD. 23/08/2007 FROM THE GENERAL MANAGER OF THE PETITIONER FIRM. P6: COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DTD.30/08/2007. P7: COPY OF THE LETTER DTD. 31/08/2007 SUBMITTED BY THE PETITIONER FIRM. P8: COPIES OF THE LETTERS ISSUED BY VARIOUS MEMBERS OF THE PROJECT OF THE PETITIONER. P9: COPY OF THE PETITION DTD. 14/05/2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.24704 OF 2009 ------------------------------------------- Dated this the 17th day of September, 2009 JUDGMENT “C.R.” 1.The petitioner seeks to quash Exts.P2 and P6 and seek a direction that the respondents shall not interfere with the functioning of the JYOTHIS project of the petitioner firm. 2.Heard senior Adv.M.K.Damodaran for the petitioner and Adv.V.G.Govindan Nair, Director General of Prosecution. 3.On 3.7.2007, the Commissioner of Police, Kochi City issued Ext.P2 notice to two persons, who, the petitioners, a firm, states, are its partners. The contents of Ext.P2 notice refer to certain activities of a scheme called JYOTHIS project. It is stated therein that on preliminary enquiry, the said scheme is found to be similar to the “LIS” scheme and that the activity of JYOTHIS project would tantamount to infraction of the provisions of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978, Section 420 IPC and Section 45 of the WPC.24704/09 Page numbers Reserve Bank of India Act. The said notice apparently makes a comparison to state that the activity of JYOTHIS project is virtually the modus operandi involved in the subject matter of Cr.No.672/06 of the Ernakulam Central Police Station which stands chargesheeted before the court of the Chief Judicial Magistrate, Ernakulam. It is also submitted by the learned Director General of Prosecution that the petitioner operates from the same premises from where the persons involved in Cr.No.672/06 had operated. The petitioner, on the other hand, denies it and also takes the stand that it has nothing to do with any other transaction and that the petitioner is an independent entity. 4.The apprehension of the commission of a cognizable offence provide sufficient ground for a preventive exercise by the police. The existence of such power is traceable to the various statutory provisions, in particular, to those in Chapter XI of the Cr.PC and to Section 29 of the Kerala Police Act, 1960. So much so, the power to prevent the commission of an offence, WPC.24704/09 Page numbers when exercised bonafide, is not be subjected to judicial intervention or interdiction, if the prevention or prohibition is on sustainable grounds. 5. The right to carry on an activity which is not forbidden by law and referable to the fundamental rights guaranteed under Part III of the Constitution of India can be subjected only to constitutionally permissible limitations. This is also part of the guaranteed fundamental rights. The right to information of the ground on which the prohibition is imposed, inheres in the person prohibited and this carries with it the right to be heard in opposition to a prohibition or a preventive action and to have a decision thereon, stating the reasons therefor. This also trickles from Part III of the Constitution of India. Therefore, when the person prohibited shows the ground as to why the prohibition ought not to have been made or shall not continued, it is the bounden duty of the State, including the police authority exercising the police power as noticed above, WPC.24704/09 Page numbers to consider the objections and conclude as to whether it is justifiable to continue the prohibition or prevention. 6.Ext.P2 is issued in July, 2007. The petitioner has placed materials before the Commissioner of Police as per Ext.P3 on 8.8.2008 and has also ultimately requested for a decision by making Ext.P9 representation, though, in between, the petitioner had attempted to carry on the business; but later stopped and apologised, as evidenced from Ext.P7. Hence, by now, it is abundantly necessary that the request of the petitioner to revoke the prohibition invoked some time in 2007 needs to be considered by the competent authority. For the aforesaid reasons, without expressing anything on the merits of the matter, the second respondent Commissioner of Police is directed to take up Ext.P9 and any other representation from the petitioner, pending in that regard; give the petitioner an opportunity of being heard and issue a decision in accordance with law. Let this be done within an WPC.24704/09 Page numbers outer limit of 45 days from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.17/9.