Gujarat High Court
Patel Agency Through Proprietor Rajani ... vs State Of Gujarat on 29 March, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/2656/2021 ORDER DATED: 29/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2656 of 2021
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PATEL AGENCY THROUGH PROPRIETOR RAJANI VALLABHBHAI PATEL
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 29/03/2022
ORAL ORDER
1. The present writ-application under Article 226 of the Constitution of India is filed by the writ-applicant seeking the following reliefs :-
"(A) That the Hon'ble court may be pleased to admit this SPECIAL CIVIL APPLICATION.
(B) This Hon'ble court may be pleased to issue appropriate writ, order, or direction to the respondent authorities not to enter and obstruct the business of the present petitioner and his franchises .and also direct to respondent authority not to disconnect the CCTV which is installed at the shop at the time of the raid in the interest of justice.
(C) This Hon'ble court may be pleased to issue appropriate writ order of direction to the police authority that if he is Page 1 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022 C/SCA/2656/2021 ORDER DATED: 29/03/2022 intended to carry out the panchnama the same can be done through videography and police authority may be directed not to seize the articles lying in the retail outlet under the provisions of Bombay Prevention of Gambling Act or Bombay Police Act without following due process of law in the interest of justice.
And/Or This Hon'ble court may be pleased to allow the present SPECIAL CIVIL APPLICATION by directing the police authority for strictly comply with order passed by this Hon'ble court in Special Civil Application No. 2244 of 2013 in the interest of justice.
(D) This Hon'ble Court may be pleased to Direct the respondents that the petitoner may be permitted to start the business in consonance with the terms of agreements and as well as the order passed by this Hon'ble Court in the interest of Justice.
(E) Grant such other and further relief as deemed just and proper by this Hon'ble court in the interest of justice."
2. The brief facts germane for adjudication of the present writ-application are stated thus :-
2.1 It is the case of the writ-applicant that the writ-applicant is holding franchises of M/s. H. S. Online Marketing Pvt. Ltd., Page 2 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022 C/SCA/2656/2021 ORDER DATED: 29/03/2022 a Company incorporated under the Companies Act, and is engaged in the business of marketing and selling Yatras, Pooja Products, Kavach, Rudraksh and other allied products.
2.2 It is further stated that the writ-applicant in order to promote its products and boost sales, conducts a promotional programme in the form of a lucky draw, wherein the customers are given a number alongwith their product/receipt and at regular intervals random numbers are chosen by means of a randomization software and published. The customers bearing receipts/slips with matching numbers, either win one silver coin having a value of approximately Rs.100/- or in case of non-availability of silver coin at the concerned outlet they are paid a sum of Rs.100/-.
2.3 It is further stated that such lucky draw contests are conducted by several popular brands in order to market and increase sales of the respective products. It is stated that since the introduction of the promotional programme, police officials found that M/s. H. S. Online Marketing Pvt. Ltd., and its franchises to be a convenient source for exploitation by means of abusing the powers of the police under the Prevention and Gambling Act. It is further stated that since the writ-applicant does not have nation-wide popularity the police officials try to bully and harass the writ-applicant and its franchises.Page 3 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022
C/SCA/2656/2021 ORDER DATED: 29/03/2022 2.4 It is stated that the writ-applicant approached this Court by filing Special Civil Application No.2244 of 2013 and this Court by judgment dated 4.3.2013 held that the promotional activity undertaken by the writ-applicant did not amount to gambling under the Prevention of Gambling Act.
3. Heard Mr. Shalin Mehta, the learned Senior Advocate assisted by Mr. Nirav C. Sanghavi, the learned advocate appearing for the writ-applicant and Ms. Dharitri Pancholi, the learned AGP appearing for the respondent - State authority.
4. Mr. Shalin Mehta, the learned Senior Advocate assisted by Mr. Nirav C. Sanghavi, the learned advocate appearing for the writ-applicant relied upon the grounds as raised by the writ-applicant in the writ-application.
4.1 Mr. Shalin Mehta, the learned Senior Advocate relied on the judgment dated 4.3.2013 delivered in the Special Civil Application No.2244 of 2013 and submitted that considering the said judgment appropriate direction be given to the respondent authority.
5. Ms. Dharitri Pancholi, the learned AGP appearing for the respondent - State authority on instructions produced on record the report dated /3/2022 from the Superintendent of Police, Rajkot. The said report is taken on record.
6. The report dated /3/2022 reads thus :-
Page 4 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022C/SCA/2656/2021 ORDER DATED: 29/03/2022 "No. RP-72/SCA/2656-21/ /22 Date : /03/2022 To The Government Pleader Gujarat High Court Sola, Ahmedabad Sub :: Report in the matter of SCA No. 2656/21 before the honourable High Court of Gujarat.
In reference to the subject noted above this is to state that, in the matter of SCA No. 2656/21 before the honourable High Court the following offence is registered by the Rajkot Rural District against H.S. Retail Proprietor Mr. Rajni @ Kalu Vallabh Patel [Patel Agency].Sr. No. 1
Police Station / Crime Reg. / Section :
Dhoraji Police Station Crime Reg. No. 178/2019 Gambling Act section 4, 5.
Name of Agency : Patel Agency Date : 21/11/2019 In the above offence the accused was calling people from outside and shown online sticker on the T.V. Screen and Page 5 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022 C/SCA/2656/2021 ORDER DATED: 29/03/2022 supplied print for Rs. 11/- and every 15 minutes held online prize draw and the persons caught were given cash instead of silver coin and was found to be carrying on activities contrary to his application and facts, therefore raid was carried out and offence registered under the Gambling Act section 4, 5.
In the matter of said offence panchanama is drawn as per the provisions of Criminal Procedure Code, and the muddamal is seizd. Thus, in the name of marketing and online sales there is breach of condition / breach of rules and thus committed offence, this came to the attention and at the time of raid CCTV camera was running then not to close and if found necessary then to send DVR to FSL for analysis and for drawing panchanama as per the provisions of CRPC the officers / employees are issued instructions.
Moreover, as per this office letter No. RB-72/SCA2244/13/Amalvari/22 dated 19/03/22 the police officers are issued instructions to implement the judgment in the SCA No. 2244/13 and 12048/16 by the honourable High Court of Gujarat.
Sd/- illegible 21/03 [Balram Meena] Superintendent of Police Rajkot Rural District, Rajkot"
The grievance of the writ-applicant as prayed for in the writ-application stands redressed.
6.1 In the judgment dated 4.3.2013 delivered in the Special Page 6 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022 C/SCA/2656/2021 ORDER DATED: 29/03/2022 Civil Application No.2244 of 2013, the Court held at para-15 as under :-
"15. In the business, the petitioner has invested huge amount, which has been borrowed from his friend and relatives. Therefore, considering the nature of business and the investment made by the petitioner and especially, since there is no element of gambling as defined in the Act, following order is passed :
(a) The respondents Authorities are directed not to obstruct the business of the petitioner in any manner and his business is not considered as activity of Gambling.
(b) It is required to be noted that though the business activities of the petitioner, as described in the petition, cannot be considered as gambling, the respondent Authorities have right to enter into the business premises of the petitioner, in discharge of their duty. Therefore, the prayer made by the petitioner to restrain the respondents from entering into premises of the petitioner cannot be granted and it is rejected.
In view of the above, the petition is partly allowed. Rule is made absolute to the aforesaid extent."
6.2 In view of the report dated report dated /3/2022 from the Superintendent of Police, Rajkot read with the ratio as laid Page 7 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022 C/SCA/2656/2021 ORDER DATED: 29/03/2022 down by the Coordinate Bench of this Court in the Special Civil Application No.2244 of 2013, it appears that the grievance as raised by the writ-applicant in the present writ- application stands redressed. Consequently no further orders are required to be passed.
6.3 The parties are directed to abide by the report dated /3/2022.
7. In view of above, the present writ-application stands disposed of with the above direction.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 8 of 8 Downloaded on : Sat Dec 24 13:52:01 IST 2022