Gujarat High Court
H S Online Marketing Private Limited ... vs State Of Gujarat Through & on 4 March, 2013
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
H S ONLINE MARKETING PRIVATE LIMITED THROUGH DIRECTOR....Petitioner(s)V/SSTATE OF GUJARAT THROUGH C/SCA/2244/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2244 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ H S ONLINE MARKETING PRIVATE LIMITED THROUGH DIRECTOR....Petitioner(s) Versus STATE OF GUJARAT THROUGH & 2....Respondent(s) ================================================================ Appearance: MR SHIRISH R PATEL, ADVOCATE for the Petitioner(s) No. 1 MR ALKESH N SHAH AGP for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 04/03/2013 ORAL JUDGMENT
1. RULE.
Learned AGP Mr. Shah waives service of Rule on behalf of the respondents.
By way of present petition preferred under the provisions of Bombay Prevention of Gambling Act, the petitioner seeks following reliefs :
a) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order direction to the Respondent authorities not to enter and obstruct the business of the Petitioner and its Franchises and also direct them not to consider the Business activity of the petitioner and its Franchises as a Gambling activities;
b) Pending the admission hearing and final disposal of this petition, Your Lordships may direct the respondent authorities not to enter and obstruct the business of the present petitioner and its Franchises and not consider their Business activities as a Gambling Activities.
c) Ad interim relief in terms of Para-b of the prayer clause may be granted.
3. As per the case of the petitioner, the petitioner is the Director of H.S. Online Marketing Pvt. Ltd. Co. at Bhavnagar. The petitioner is having business of all kind of products, sales and service through e-bidding, e-selling throughout the India for selling of Yantras, Pooja, Products, Vastu Products, Religious Artifact, Feng-Shui etc. As per the petitioner, for further growth of business, some promotional and gift schemes were to be implemented in different types of Yantras, which were sold at the price of Rs.11/- per Yantra. The customer is given one ID number on receipt of purchase and that ID is to be fed on the online website of petitioner Company and if such ID is selected in online draw then such person is given silver coin of Rs.100/- as an incentive. The electronic machines or computers kept in the said shop are not objected for gambling or any other illegal activities. The respondents Authorities visited the place of the petitioner and they are creating obstructions in running their business and they are also threatening present petitioner and also to the customers of the petitioner. Therefore, the present petition is filed by the petitioner seeking direction upon the respondents Authorities not to enter and obstruct the business of the petitioner.
4. Learned advocate for the petitioner submitted that the petitioner and its Franchises are not doing any activity, which can be said as illegal and not permissible as the Bombay Prevention Gambling Act or Bombay Police Act. He further submitted that the business activities of the petitioner are run by way of online lucky draw scheme and same is permissible under the law. The petitioner is only offering Silver Coin worth Rs.100/- to the purchaser, whose ID is selected in the online lucky draw as an incentive on their purchase and if the Silver Con is out of stock then the cash amount of Rs.100/- (equal to the price of Silver Con) is given. This incentive scheme is only available to the purchaser of the products of the petitioner and therefore, such activities cannot be considered at all Gambling activity under the law. There are numbers of consumers product available in market which is marketed on Television also and online draw and computer draw are made and same are not considered as Gambling. He further submitted that the petitioner is not doing any activity which is violative of public good and public purpose or which can be said as an offence under the Bombay Prevention Gambling Act and the Bombay Police Act or any other law.
5. He further submitted that one of the Franchise of the petitioner filed one Regular Civil Suit No.7 of 2012 before the Civil Court at Gandhidham, wherein interim relief was granted in favour of the petitioner. He also submitted that here the meaning of gambling is required to be considered and in the meaning of gambling, the element must be of wagering or betting. Here in the activities of the petitioner, the element of wagering or betting is not prima facie established or proved by any manner and the activities of the petitioner is not covered within the meaning of gambling. Here the petitioner being engaged in the selling of things related to the religious and he put the online scheme and by making lucky draw, the purchaser gets silver coin or Rs.100/- in place of silver coin. Therefore, not a single ingredient of gambling is established against the petitioner and, therefore, he prayed not to enter the respondents Authority to enter and obstruct the business of the petitioner.
6. Learned AGP Mr. Shah for the respondents submitted that the activities in form of business made by the petitioner is covered under the meaning of the gambling. Present petitioner obtained interim injunction against the respondents from the lower Court. He further stated that the respondents have right to enter into the business premise of the petitioner. Therefore, he submitted that the petition is required to be dismissed.
7. Perused the petition and documents and considered the submissions made by the parties. First question that arises is as to whether the business activities of the petitioner can be considered as gambling or not.
8. The elements of gambling consists of wagering or betting. Perusal of the definition of gambling would clearly show that there should be an element of wagering or betting to call it gambling. As per the dictionary meaning of gambling also the essential element is wagering or betting. In the well-known show telecasting on Television namely Kaun Banega Crorpati , both these elements wagering and betting are totally missing and, therefore, it can be said that in the game of gambling, said two elements are necessary to prove the gambling and nothing are at stake of the participant. It is only skill game and if the person is successful in answering, the payment is incidental to that and if the answer is wrong, the person is eased out from the competition with whatever money he has earned by answering correct questions. The game of dart is a game of skill. The person who is actually playing the dart game is playing game of skill but the persons who are side betting, for them the game will not be game of skill but it will be game of chance. So the game of dart is not gambling and is not covered by the gambling and is not covered by the Gambling Act.
9. There is no element of betting or wagering in the business conducted by the petitioner. The definition of gaming, therefore, does not get attracted to his business. It is not a "common gaming house"
as defined under the respective Acts. The essential requirement to bring any game within the definition of gaming as defined under the Act is completely lacking.
10.
" Gaming place" means any place, room, building, vehicle, vessel, tent or location which is used for any of the following :
Making and settling bets; receiving, holding, recording or forwarding bets or offers to bet; conducting lotteries or policy games; playing games of chance for money or other property; or playing gambling devices. 'Game' includes a contrivance which has for its object to furnish sport, recreation, or amusement.
11. 'Gaming' has been defined as : to play any game, whether of skill or chance for money or money's worth; and the act is not less gaming because the game played is not in itself unlawful and whether it is involved or did not involve skill. Gaming, therefore, is an inclusive definition which includes a game of chance and skill combined or a pretended game of chance or of chance and skill combined. Gaming house would mean any house, room, tent etc. whether enclosed or open or any place whatsoever in which the instruments of gaming are kept or used for profits or gain by the person occupying, using or keeping such house, room, tent etc. whether by way of charge or otherwise. The instrument of gaming would include any article used or intended to be used as a subject of means of gaming, any document used or intended to be used as a register or record or evidence of gaming, the profits of any gaming or any winnings or prizes in money or otherwise distributed or intended to be distributed or money's worth in gaming. Place would include building or a tent etc. whether permanent or temporary or any area whether enclosed or open. Place of public amusement means any place where any gain or means of carrying on the gain is provided in which the public are admitted and includes a road or a street or a way whether a thoroughfare or not and a landing place in which the public are granted access or have a right to resort or over which they have a right to pass. The elements of gaming are the presence of prizes or consideration, chance and prizes are reward and games includes a contrivance which has for its object to furnish sport, recreation or amusement. Amusement would mean diversion, pastime or enjoyment or a pleasurable occupation of the senses, or that which furnished it. A common gaming house is a place or public place kept or used for playing therein any game of chance, or any mixed game of chance and skill, in which the organiser keeps one or more of the players. It is also a place in which any game is played, the chances of which are not favourable alike to all the players. Gaming is to play any game whether of skill or chance for money or money's worth and the act is not less gaming because the game played is not in itself unlawful and whether it involved or did not involve skill.
12. In certain games, certain operations are to be performed to enable the gamester to play the game, the persons taking part in such operations must be deemed to be 'gaming' or actually assisting in the gaming. "To game", therefore, is to play any game, whether of skill or chance, for money or money's worth. It is playing of the game for money or money's worth whether the game be lawful or not. No game can be a game of skill alone. In any game in which even great skill is required, chance must play a certain part. Even a skilled player in a game of mere skill may be lucky or unlucky, so that even in a game of mere skill chance must play its part. But it is not necessary to decide in terms of mathematical precision the relative proportion of chance or skill when deciding whether a game is a game of mere skill. When in a game the element of chance strongly preponderates, it cannot be a game of mere skill. Therefore, it is not practicable to decide whether a particular video game is a game of skill or of mixed skill and chance. It depends upon the facts, in each case.
13. I have perused the decision in the case of State of Bombay Vs. R.M.D. Chamarbaugwala reported in AIR 1957 SC 699, wherein Hon ble Supreme Court has observed as under:
A competition in order to avoid the stigma of gambling must depend to a substantial degree upon the exercise of skill. Therefore, a competition success wherein does not depend to a substantial degree upon the exercise of skill is not recognized to be of a gambling nature. Gambling activities from their very nature and in essence are extra commercial although the external forms, formalities and instruments of trade may be employed, and they are not protected either by Article 19(1(g) or Article 300 of the Constitution. It is difficult to accept the contention that those activities which encourage a spirit reckless propensity for easy gain by lot or chance, which lead to the loss of hard-earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject matter of a fundamental right guaranteed by Article 19(1)(g) of the Constitution.
14. Here in the present case, the petitioner is Pvt. Ltd. Company registered under the Companies Act. The petitioner is having the selling outlet agreement for running the business of all kind of products, sales and service through e-bidding, e-selling throughout the India for selling of Yantras, Pooja Products, Vastu products, Religious Artifact, Fang-shui etc. related and allied products and promotion activities. Thereafter, for further growth of business, some promotional and gift schemes were to be implemented and on purchasing the items sold by the petitioner, the customer is given ID number on receipt of purchase and that ID is to be feed on the online website of the petitioner Company and if such ID number is selected in online draw then such person is given silver coin of Rs.100/- as an incentive and in case of the coin is not available then a reward of Rs.100/- is given to the purchaser. Therefore, looking to the nature of business, it is not established that there is element of wagering or betting and said elements are necessary to prove that the petitioner is engaged in such game connected to the gambling. Therefore, the petitioner is not doing any act which is opposed by public policy or illegal. One similarly situated person filed a Regular Civil Suit No.7 of 2012 before the Civil Court, Gandhidham, wherein interim relief is granted by the Civil Court. Therefore, I am of the opinion that the business of the petitioner is not attracting any kind of element or ingredients of gambling and therefore, it cannot be said to be gambling and by way of online draw the petitioner is only awarding Silver Coin of Rs.100/- and in lieu of Silver Coin, Rs.100/- is rewarded to the winner.
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.
(Z.K.SAIYED, J.) YNVYAS Page 9 of 9