Usha Mehra, J.
(1) Petitioner M/s. M.S.Associateshas assailed the order dated 26th December, 1995, p assed by the Commissioner of Pol ice under Section 144 of the Code of Criminal Procedure (In Short Cr.P.C.) thereby prohibiting lottery trade in Delhi w.e.f. 28th December,1995. This order was passed because it was apprehended that sale of lottery tickets and the connecting activities are likely to cause disturbance of the public tranquillity and public morale and breech of peace and danger to human life and property in the National Capital Territory of Delhi (in short Nct of Delhi). This order was to remain in force for a period of 60 days i.e., up to 25th February^ 996 unless withdrawn earlier. Subsequent thereto the Govern- ment of Nct of Delhi issued a Notification published in Part-IV of Delhi Gazette (Extra Ordinary) dated 28th February, 1996 indicating therein that order of 26th Deember, 1995 made by Commissioner of Police, Delhi shall remain in force for a further period of six months commencing from 26th February, 1996.
(2) Petitioners have felt aggrieved with the impugned Notification dated 28th February, 1996 issued by respondentNo-2 i.e. Nct of Delhi. The said order has been assailed, inter alia, on the ground that no Notification could be issued after the order of Commissioner of Police under Section 144 Cr.P.C. had already come to an end. Since the impugned Notification of 28th February, 1996 was issued after the expiry of the order of Commissioner of Police, thereforee, it is bad in law because by this Notification the Government could not have revived the dead order. Section 144 Cr.P.C. cannot be made operative retrospectively, secondly the business of lottery does not in any way endanger human life, safety or could cause riots or any affray. Nothing has been indicated in the impugned Notification dated 28th February^ 996 that there has actually been any breech of peace or any acts of affray or acts of riots. State organized lotteries cannot be banned under the Law. thereforee, invocation of the provisions of Section 144 Cr,P.C. was by way of a camouflage to overcome the prohibition contained under the law from banning the sale of State organized lotteries.
(3) To appreciate the points raised by Mr. D.C.Mathur, Senior Advocate for the petitioner and refuted by Mr. S.K. Aggarwal, Standing Counsel for the State, we must have a quick glance at the admitted facts of this case. Those are, that petitioner is a sole selling agent in Delhi of lotteries organized by the State ofNagaland. The Joint Director (Lotteries), Government of Nct of Delhi vide letter dated 21st July, 1994 gave permission to the Government of Nct of Delhi to close down Delhi Lotteries w.e.f. 1st January, 1995. Sales tax at the rate of 20% was imposed on the sale of lotteries run by other States w.e.f. 20th December,1994. It was found that inspire of these measures, the menace caused by the lotteries did not abet. Commissioner of Police received reports to the effect that on account of lottery menace which has resulted in spurt in various crimes in Delhi besides unhealthy competition between lottery sellers having ill effect of the addiction of the innocent public, It was found that being lured by the hope of winning the lottery, the young and poor wage earners and working masses, recklessly start gambling till they are finally exhausted. It was in this background that the Commissioner of Police thought that on account of being addicted to lotteries, it will endanger human life and safety. thereforee, by invoking the provision of Section 144 Cr.P.C. he promulgated prohibitory order banning the sale of lotteries in Delhi vide order dated 26th December, 1995. The order of prohibition was to be effective from 28th December, 1995. The prohibitory order issued by the Commissioner of Police under section 144 Cr.P.C. was to be in force for a period two months. In the normal circumstances it would have come to an end on 25th February, 1996. It is the case of the State that this prohibitory order was passed only after receipt of reports from District Deputy Commissioners of Police and D.C.P. (Crime). These reports lead to only one conclusion that there was urgent necessity for promulgation of prohibitory order todeterthepeoplefromcontinuingtoindulge in lotteryaddiction.Numberof cases of murder, suicide, robbery, attempted murder, snatching, gambling, theft, kidnap- ping were registered because of the lottery menace. The loss in lottery leads to a person in extreme financial stress. Since the poor wage earner spents money in lottery and becomes financially tight, with the result either he finishes himself or his family.Thecaseoftheprosecutionassetupisthatitisinthisbackdropthattheorder by the Commisisoner of Police was passed. Thereafter, instead of order being passed by the Commissioner of Police, the Nct of Delhi issued a notification with direction to continue the order of prohibition passed by the Commissioner of Police which is the impugned order in question.
(4) The first point raised by Mr. D.C. Mathur is very interesting and has a far reaching consequences. The question raised is, whether after the expiry of the order passed by the Commissioner of Police the Notification under Section 144, Cr.P.C. could be issued? Section 144 Cr.P.C. is reproduced as under :-
'144.Power to issueorder in urgent cases of nuisance or apprehended danger: 1. In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immedite prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such directions likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot or an affray. 2. An order under this Section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte. 3. An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. 4. No order under this section shall remain in force for more than two months from the making thereof; Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. 5. Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office. 6. The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to Sub-section (4). 7. Where an application under Sub-section (5) or Sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
(5) Drawing my attention to proviso to Sub-Section (4) of Section 144, Cr.P.C., Mr. Mathur contended that the proviso stipulates that the order passed under Section 144 Cr.P.C, is still in existence when the notification was issued. Sub-section (4) of Section 144 makes it absolutely clear that the order as stipulated under Sub- section (1) can only remain in force for two months and not more. However, by providing this proviso the Legislature in its wisdom thought that if the Government considers it necessary that such an order which was passed under Sub-section (1) of Section 144 has tocontinue, then theGovernmentwill issue the notification under Section 2(m) of Cr.P.C. It means thatthe notification must be published in the official Gazette. Relying on this interpretation of the word 'Notification' Mr. Mathur contended that once the Government forms an opinion that order passed under Section 144 has to remain in force, then it must issue the notification the before expiry of that order. Mr. D.C. Mathur further contended that the Notification in fact operates as a saving provision to the life of the order passed under Section 144(1). The order made by the respondent No.1 having expired subsequent notification could not give life to it.
(6) Mr. S.K. Aggarwal, on the other hand while interpreting the words used in the proviso to Sub-section (4) of Section 144 contended that the sentence appearing in the proviso i.e. 'from the date on which the order made by the Magistrate would have, but for such order, expired' clearly indicate that the notification as stipulated can be issued even after the expiry of the order passed under Section 144(1). I am afraid this interpretation urged by the Standing Counsel Mr. S.K. Aggarwal does not cut any ice. The reading of the proviso clearly show that the order of the Magistrate as stipulated under Sub-section (4) of Section 144 would have expired, but for the notification, issued under the proviso to this section. It means the notification has to be issued while the order passed under Sub-section (1) of Section 144 is in existence. I also find no merit in the contention of Mr.Aggarwal that notification need not have been issued during the currency of the order passed under Sub-section (1) of Section 144.
(7) Mr. Aggarwal cannot draw any advantage of the order dated 23rd February, 1996 passed by the Lt. Governor on the file thereby approving the draft notification, because as already pointed outabove the notification in this case would mean the Gazette Notification and not an administrative order passed on the file. Passing of an administrative order and keeping it in the file, by no stretch of imagination can be called a notification. Proviso to Sub-section (4) of Section 144 requires a notification and not an administrative order in the file. An administrative order and Gazette Notification represent two distinct and different aspects. Mere fact that an order was there in the file of 23rd February,1996 approving the draft Notification by the Lt. Governor by itself will not change the legal position. Notification in the Official Gazette is a precondition to save the order passed by the Commissioner of Police. If what Mr. Aggarwal contends is accepted then, to my mind, the word 'notification' used in the proviso to Sub-section (4) of Section 144 will become redundant. The purpose of issuing the notification is that the public should know that the prohibitory order had been passed by the Government thereby extending the order already passed by the Commissioner of Police. That is why in the proviso to Sub-section (4) of Section 144, Cr.P.C. the word 'notification' has been used and not an administrative order. Sections 20 to 22 of the General Clauses Act, deals with the power of issuing notification. Reading of these clauses clearly indicate that no order on the file of the police or for that matter Lt. Governor would constitute an order to be a notification. Hence, the reliance by Mr. Aggarwal on the order passed by the Lt. Governor on 23rd February, 1996 is of no avail to him. It cannot fill up the lacuna caused in the impugned notification issued after the expiry of the order dated 26.12.95 passed by respondent No.l. The notification cannot have retrospective operation. thereforee, the impugned notification on this ground can be said to be bad in law and without jurisdiction. By this notification the Government could not revive the dead order nor this notification could inject life into the order which had already expired.
(8) Turning to second limb of Mr. Mathur's argument that State organized lotteries cannot be banned by a State and, thereforee, the respondent No. 2 availed the provisions of Section 144 Cr.P.C. as a camouflage. I find force in this submission of Mr. Mathur. Section 144, Cr.P.C. is primarily to be used to defend accused's rights because provision of Section 144 are emergent in nature and could be used only when there is apprehension of breach of public peace, disturbance of public tranquillity, danger to human life, health or safety, or a riot, or an affray. It canned be denied that there maybe cases of suicide or murder on account of depression and frustration in not becoming successful. But that by itself is no ground to invoke the provisions of Section 144. That is not the proper remedy. The Bank could be imposed by bringing a Legislation in this respect by the Central Government. Moreover sale of State organized lotteries cannot be banned by another State under the garb of Section 144 Cr.P.C. Mr. S.K. Aggarwal when confronted with this proposition fairly conceded that Central Government has not passed any Legislation, inspire of the recommendation made by the Nct of Delhi. In umpteen number of cases the Apex Court has opined that the State organized lotteries cannot be banned unless by an act of Parliament. thereforee, in the absence ctf any law on the point, to my mind, the Nct of Delhi could not impose the ban after taking shelter under Section 144, Cr.P.C. Reference in this regard can be made to the decision of the Supreme Court in the case of Acharya Jagdishwaranand Avadhuta v. Commissioiner of Police, Calcutta &e; Am. : 1983CriLJ1872 where Supreme Court held that no ban can be put on the lotteries organized by the State or by the Government of India.
(9) Power under section 144 should ordinarily be used in defense of legal rights and the lawful performance of statutory duties, rather than in suppressing them. Reading of the impugned notification does not indicate nor spell out the grounds or emergency for extending the ban. So far as the sale of lotteries organized by the State are concerned Supreme Court in the case of State ofHaryana v. Mis Suman Enterprises and Ors. : (1994)4SCC217 held that the same cannot be banned. It is only the lotteries authorised by the State which can be banned. For that also there has to be a proper legislation. Apex Court observed in that case that if any State organises its lotteries and satisfies the essential features indicated by the Apex Court, that alone will qualify the lottery as the one organized by the State. State organized lottery would be outside the regulatory power of any other State under Entry 40 of List I of the Constitution of India. To State organized lottery prohibition would not apply. In the instant case petitioner was selling State organized lottery, thereforee, in view of the Apex Court's decision the prohibition will not apply. This is the implication arising out of the proper interpretation of Entry 40 List I and Entry 34 of List Ii of the Seventh Schedule of the Constitution of India. Since the lotteries sold by the petitioner is organized by the State of Nagaland and fulfillls the essential ingredients to be called State organized lottery as stipulated by the Apex Court in the case of State ofHaryana (Supra). Hence by the impugned notification the sale of this lottery could not be banned. In para I of the petition the petitioner had made itclearthatitwas the sole selling agent in Delhi of the lotteries organized by the State 'of Nagaland. This fact has not been denied by the respondents in their reply affidavit. thereforee, once it is primafacie proved that petitioner was selling the lotteries organized by the State of Nagaland in Delhi, sale of the same could not be banned. The Nct of Delhi cannot take aid of Section 144 Cr.P.C. and use it as a camouflage in order to over reach the provisions of law thereby prevent to the trade and business of the petitioner.
(10) Para I of the Order of 26th Deccmber,1995 issued by the Commissioner of Police, Delhi, shows that respondent banned the complete set of lotteries in Delhi i.e. private as well as State organized. Para I of the order reads as under :-
'PARAI. Whereas it appears to me that the lotteries both State and Private have found a favourite heaven for massive sale of such tickets in the National Capital Territory of Delhi.'
Whereas in para 8 it is stated that :-
'PARA8. Now, thereforee, in exercise of powers conferred upon me under Section 144 Criminal Procedure Code read with Govt. of India, Ministry of Home Affairs, New Delhi's Notification No.O-11036'/3/73(i)-UTL dated I.7.1978,1, Nikhil Kumar, Commissioner of Police, Delhi do hereby make this written order to prohibit from 28th December, 1995 any person or persons from selling lottery tickets, both State and Private and all activities connected to it which are likely to cause disturbances of the public tranquillity and public morals and breach of peace and/ or danger to human Ilife and property in the entire National Capital Territory of Delhi.'
(11) Reading of this order of 26th December,1995 as a whole and paras 1 & 8 in particular, would show that Commissioner of Police did not draw any distinction between private lottery and State organized lottery. He passed the impugned order ignoring the distinction drawn between the two by the Supreme Court and the consequences which flow from the same. Vide impugned notification dated 28.2.96 the Government of Nct of Delhi also fell to the same error. It did not draw any distinction between a State organized lottery and a private lottery. Notification prohibits both set of lotteries which under the law Government could not do. The impugned notification cannot stand the test of law hence is liable to be quashed.
(12) The question which arises for consideration is whether order passed under Section 144 is permanent or semi-permanent in nature. Under Sub-section (4) the State Government is empowered to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Commissioner of Police. This clearly indicate that Parliament never intended or allowed an order under Section 144(1 ) Cr.P.C. to remain in force permanently. Such an order cannot be called a permanent or a semi-permanent in character. Then the question arises what will happen to such a notification after six months. Can the State Government issue another notification of similar kind to extend the previous one? Does the word notification appearing in proviso means a number of notifications. The answer will be in the negative. Since the proviso to Sub-section (4) of Section 144 itself is of a temporary character, by issuing repeated notification a permanent or semi perma- nent character cannot be attached to the same. By invoking the provision of Section 144 the State cannot ban this trade for all times to come. For that there has to be a legislation which unfortunately in this case is not there. thereforee, the State cannot be permitted to achieve under the grb of Section 144 which it could not achieve through an act of Parliament.
(13) Contention of Mr. Aggarwalthat the power to alter or amend or extend the notification lies with the State Government who after considering all the material available on record may extend the life of the order by issuing fresh notifications in the larger public interest. This argument of Mr.Aggarwal can neither be supported from the reading of Section 144, Cr.P.C, or from the long list of cases decided by the Apex Court. Reliance by Mr. Aggarwal on the observation of the Calcutta High Court in the case of Sh. Madanlal Batra &Anr. v. State of West Bengal, Cri. A. No. 1637/93 decided on 17th September, 1993, is of no help to him. There the Court opined that 'if lotteries are source of great mischief and had to be declared by the concerned Legislature to be 'common and public nuisances' and has been con- denined by the Courts including Apex Court as something which have all the vices which may go in ruin persons indulging therein, no Court should be a party to the continuance of such activities.' These observations were made without discussing the legal position as that Court was not dealing with the State organized lotteries. From the judgment it appears that it was a daily lottery ticket, may be a private lottery. Whreas we are concerned with the State organized lottery. thereforee, on the facts ofthiscasenoassistancecan be had from the observations in Madanlal Batra's case.
(14) Allahabad High Court in Criminal Writ No.l013/96 decided on 2.4.1996 in similar circumstances dealing with State organized lottery concluded that the same could not be banned by the State Government. In the present case also since the petitioner is selling the State organized lottery, hence the Nct of Delhi could not have banned it even by resorting to the provision of Section 144 Cr.P.C. If the Nct of Delhi could not have banned the State organized lottery otherwise, it cannot do so under Section 144, Cr.P.C. No doubt the purpose may be laudable, but we cannot loose sight of the fact that it must be done within four walls of the law. State cannot be allowed to flaut law by adopting dubious means. In the garb of larger public interest it cannot be allowed to violate the law. Similarly, Rajasthan High Court in the case of State of Assam v. State of Rajasthan Single Bench Civil Writ No. 28/96 decided on 3.5.96 held that State organized lotteries cannot be banned by a State as it falls under the Entry 40 List I Seventh Schedule of the Constitution of India. Central Government alone is competent to legislate on the same. No State Govern- ment has legislative or executive power to impose a ban on the sale of ticket of a lottery organized by the State Government or the Government of India as the case may be. The State Gov'-rnment has power to legislate under Entry 34 List Ii Seventh Schedule of the Const^ution of India regarding 'betting and gambling' but the lotteries organized by a State Government or the Government of India have been specifically taken away from the said Entry and have been placed in Entry 40 List I Seventh Schedule of the Constitution of India, which cannot be banned by such notification. Short in this regard can be had to the decision of Supreme Court in the case ofH. Anraj and Ors. v. State ofMaharashtra, : [1984]2SCR440 .
(15) As already observed above, the fact that the lotteries sold by the petitioner are State organized lotteries, hence the same could not be banned by the impugned notification. Even otherwise once the order of respondent No.1 had expired, the respondent No. 2 could not resort to the notification to inject life to a dead order.
(16) For the reasons stated above, the petition is allowed and the impugned notification dated 28th February, 1996 is hereby quashed.