ASPs Even If Not Specially Empowered By State Has Authority To Exercise Power U/S 6(1) Of Maharashtra Prevention Of Gambling Act: Bombay HC
The Bombay High Court held that an Assistant Superintendent of Police (ASP) without being specially empowered by the State Government has an authority to exercise power under Section 6(1) of the Maharashtra Prevention of Gambling Act, 1887.
The Aurangabad Bench of the Court held thus in a batch of pleas in which the following issued was referred for adjudication by the bench:
“Whether an Assistant Superintendent of Police - ASP, without having been specially empowered by the State Government - SG, has an authority to exercise power covered by sub-clause (a) to (d) of the Section 6(1) of the Maharashtra Prevention of Gambling Act?”
The Full Bench comprising Justice Mangesh S. Patil, Justice N.B. Suryawanshi, and Justice R.M. Joshi observed, “Submissions of the learned advocates for the applicants that the District Magistrate and the Superintendent of Police and other officers named in clause (ii) even themselves cannot effect/exercise the powers under sub-clauses (a) to (d), is not a correct reading of the provision. As can be seen, all the high rank officials and Magistrates like Commissioner of Police, District Magistrate, Sub-Divisional Magistrate and Superintendent of Police have been conferred with the powers to be exercised in sub-clauses (a) to (d). It is only in respect of their power to further delegate the same, that a distinction has been made between the Commissioner of Police in a Commissionerate area in clause (i) and the Superintendent of Police, District Magistrates and Sub-Divisional Magistrate elsewhere under clause (ii). The former derives the powers to issue warrant by operation of the statute but the latter have not been conferred with this power. They can derive such power only if they are conferred with it by the State Government. This according to us seems to be a plain understanding of these provisions.”
Advocate P.D. Bachate represented the petitioners/applicants while Public Prosecutor A.B. Girase represented the respondents/State.
Brief Facts -
In the case of Dilip Namdev Irale v. State of Maharashtra & Ors. (2019 SCC OnLine Bom 2514), it was held that Deputy Superintendent of Police who had conducted raid on a gambling house, was not specially empowered by the State Government to effect the raid in view of the specific wording of Section 6 of the Gambling Act and the raid was, therefore, illegal. Whereas, in the present matters the division bench, referring to the decision of the Supreme Court in the matter of State of Gujarat v. Lalsing Kishansingh (1980 Cri.L.J. 1413) and a judgment of a division bench in the case of Emperor v. Abasbhai Abdulhussein (AIR 1926 Bom. 195), disagreed with the view expressed in Dilip Namdev Irale case.
The Court had expressed a view that since the raid/search was effected by the Assistant Superintendent of Police, there was no question of he being specially empowered by the State Government to exercise powers covered by sub-clauses (a) to (d). It was also observed that the officers named therein viz District Magistrate, Sub-Divisional Magistrate, Taluka Magistrate or Superintendent of Police or Assistant or Deputy Superintendent of Police, are expressly been empowered to exercise powers under those clauses. Since, in these matters, the raid was effected by Assistant Superintendent of Police, he had the powers and the raid could not be said to be illegal. This is how this reference.
The High Court after hearing the contentions of the counsel said that there cannot be a dispute about the fact that the Gambling Act has been in force for more than a century and a quarter and that it is in this context, to its mind even a reference to the stand of the State Government has some relevance, at least to demonstrate its understanding of the provision of Section 6.
“As can be seen, it is only when the State Government wanted, it has specially empowered the Taluka Magistrate and the Assistant and Deputy Superintendent of Police to issue a warrant for exercising the powers under sub-clauses (a) to (d). The parties have not pointed out any notification of the State Government showing conferment of powers under clause (ii) to the District Magistrate, Sub-Divisional Magistrate and Superintendent of Police to themselves exercise the powers under sub clause (a) to (d). All these notifications (supra) have been issued on the premise that these latter category of officers derive such powers to be exercised under sub-clauses (a) to (d) by virtue of the provision of clause (ii) of Sub-Section 1 of Section 6. It is only when it was decided to empower these officers to issue warrant to the subordinates, that these notifications have been issued”, it noted.
The Court further said that the consistent stand of the State Government over a period of so many years and conspicuous absence of any Government Resolution to demonstrate otherwise, this circumstance of issuing notifications from time to time substantiates its inference.
“Once having understood the provision and the distinction between the clause (i) and clause (ii) of Sub-Section 1 of Section 6 as aforesaid, we prefer to approve the view expressed in the present matters by the division bench in its order dated 20.10.2023 rather than the one expressed in Dilip Namdev Irale (supra)”, it concluded.
Accordingly, the High Court answered the issue referred to it in the affirmative and placed the matters before the appropriate bench for adjudication.
Cause Title- Maroti S/o Gangaram Nandane & Ors. v. State of Maharashtra & Anr. (Neutral Citation: 2024:BHC-AUG:5008-DB)
Appearance:
Petitioners/Applicants: Advocates P.D. Bachate, N.D. Kendre, and V.B. Madan.
Respondents/State: Public Prosecutor A.B. Girase and Addl. Public Prosecutor M.M. Nerlikar.
