Safiya Malik

The Kerala High Court has dismissed a petition filed under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash criminal proceedings against two petitioners in connection with the sale of Bhutan Government lottery tickets without the requisite seal or logo. The court stated that the prosecution was legally sustainable and rejected arguments attempting to link the case to other judicial decisions concerning the sale of lotteries from different states.

The petition was filed by Shahul Hameed and Shamnad, who were accused in C.C. No. 543/2005, pending before the Judicial First-Class Magistrate Court-II, Neyyattinkara. The case originates from Crime No. 464/2004, registered at Parassala Police Station, Thiruvananthapuram. According to the prosecution, on September 10, 2004, at approximately 3:10 p.m., the accused were engaged in the sale of Bhutan Government lottery tickets at the business establishment named "Vasantham Lotteries," situated in Kaliyikkavila. The lottery tickets allegedly did not bear the mandatory imprint or logo of the Bhutan Government, violating Section 4(b) of the Lotteries (Regulation) Act, 1998, which is punishable under Section 7(3) of the same Act.

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The first accused, Shahul Hameed, was the proprietor of Vasantham Lotteries, while the second accused, Shamnad, was an employee at the establishment. The prosecution contended that the accused knowingly engaged in the sale of lottery tickets that lacked the necessary official markings, thereby violating statutory provisions designed to regulate the sale and distribution of lotteries.

The petitioners contended that the prosecution was not maintainable, citing judicial precedents regarding the Kerala Government's ban on lotteries from other states. They relied on prior Supreme Court judgements, including Crl.M.P.No. 922/2012 and Civil Appeal No. 3088/2004, arguing that the case against them was legally untenable. The defense maintained that the proceedings against them were arbitrary and unsustainable in law.

Additionally, the petitioners challenged the manner in which the investigation was conducted. They argued that the search and seizure operations at their business premises were conducted without adhering to the due process of law. It was contended that the investigating authorities failed to comply with the procedural safeguards mandated under the Lotteries (Regulation) Act, 1998, and the Code of Criminal Procedure, 1973.

The Kerala High Court examined the submissions and rejected the petitioners' claims, clarifying that the prosecution was unrelated to the general ban on lotteries imposed by the State Government. The court stated:

"The crime involved in this case was registered not in connection with the sale of lotteries belonging to other States in violation of the ban imposed by the State of Kerala. Rather, the prosecution case is based on the sale of Bhutan Government lotteries without the necessary imprint and logo, as required under Section 4(b) of the Lotteries (Regulation) Act, 1998."

The court further observed that the essential issue in the case pertained to non-compliance with statutory requirements rather than the broader policy framework governing state lotteries. The accused were not prosecuted for selling an unauthorized lottery but rather for failing to adhere to the statutory mandate requiring the imprint of the issuing government on the tickets.

The petitioners' reliance on Supreme Court judgments was also deemed misplaced. The court recorded:

"The decisions of the Apex Court and this Court which the petitioner has quoted in this petition are having no relevancy in the facts and circumstances of this case."

Regarding the petitioners' argument that the police search at the lottery shop was unlawful, the court found it unpersuasive. The search was conducted on September 10, 2004, whereas the Supreme Court judgement they cited was delivered on November 4, 2009. The court thus observed:

"The search involved in this case was conducted about five years prior to the Apex Court's order dated 04.11.2009 in Civil Appeal No. 3088/2004. Furthermore, the subject matter of the Supreme Court case is unrelated to the present crime, which pertains to the sale of lotteries without the required imprint and logo."

The court also referred to a previous order in Crl.M.C.No. 1775/2010, which had stayed proceedings pending the Supreme Court’s decision on the sale of lotteries from other states. The High Court clarified that the earlier stay was based on a misunderstanding of the facts, stating:

"The learned Single Judge had proceeded on the premise that this case related to the sale of lotteries from other States in violation of the Kerala Government's ban. However, as has been made clear, the prosecution is based on the sale of Bhutan Government lotteries without the required imprint and logo. Thus, the stay order in Crl.M.C.No. 1775/2010 has no bearing on the present case."

The court further noted that the Lotteries (Regulation) Act, 1998, establishes strict requirements for the operation of lotteries, including provisions that prohibit the sale of tickets that do not bear the official seal or mark of the issuing authority. The purpose of these regulations is to ensure transparency and prevent fraudulent practices in lottery sales. The court recorded:

"The requirement for the imprint and logo of the issuing government on lottery tickets is a fundamental regulatory provision aimed at maintaining the integrity of lottery operations. The absence of such imprints creates a risk of unauthorized and fraudulent lottery sales."

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Furthermore, the court stated that the petitioners could not evade prosecution merely by arguing that the search was conducted before a Supreme Court judgement clarifying aspects of inter-state lottery regulations. The High Court stated that the accused must stand trial to determine whether the alleged violation under Section 4(b) of the Lotteries (Regulation) Act, 1998, was committed.

Concluding that the prosecution was valid and legally sustainable, the Kerala High Court dismissed the petition, stating:

"Needless to say, that the request in this petition to quash the proceedings in C.C.No.543/2005 in the files of the Judicial First Class Magistrate Court-II, Neyyattinkara, cannot be allowed. In the result, the petition is hereby dismissed."

Advocates Representing the Parties

For the Petitioners: C.G. Bindu, Advocate; Ajitha C.G., Advocate; K.J. Saranya Raj, Advocate.

For the Respondents: Sangeetharaj N.R., Public Prosecutor.

Case Title: Shahul Hameed & Another v. State of Kerala & Others

Neutral Citation: 2025:KER:18445

Case Number: Crl.M.C.No. 2062/2020

Bench: Justice G. Girish

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