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18. Proceeding next to the second of the questions argued before us, I do not think it necessary or expedient to express any definite opinion, on the evidence in this case as to whether or not the defendants are guilty of an offence under Section 294-A, Indian Penal Code. Though the interest of the moment has attempted them to plead that the case falls within Section 294-A, I am sure they would be the first to plead 'not guilty' if they were threatened with a prosecution. It is well settled that it is not sufficient for the purposes of the first part of Section 294-A that the scheme amounts to a lottery; it is further required that the person charged should 'keep any office or place for the purpose of drawing any lottery.' It has frequently been pointed out that the scope of this provision is very much more limited than that of the law in England relating to lotteries. (See the varieties of offences under the English Law referred to in Martin v. Benjamin (1907) 1 K B 64 : 76 L J K B 81 : 51 S J 50 : 23 T L R 53 : 71 J P 30 : 96 L T 197 at page 66 Page of (1907) 1 K.B.--[Ed] and Halsbury, para. 934, in the Article on 'Gaming and Wagering' in Vol. 15). Even in India, the prohibition was wider under Act V of 1844 but when incorporating this portion of the law into the Penal Code in 1870, the legislature has to some extent narrowed it. Under similar Acts in England much discussion has taken place as to the connotation of the word 'keep' in this context and of the words 'office or place.' It is obvious that a certain degree of habitualness or continuity of operation is intended as also a fixed or ascertained locality for the drawing: Marks v. Benjamin (1839) 5 M & W 565 : 151 E R 239 : 9 L J (N.S.) M C 23 : 3 Jur. 1194 : 2 M & Rob 225 : 52 R R 839, Martin v. Benjamin (1907) 1 K B 64 : 76 L J K B 81 : 51 S J 50 : 23 T L R 53 : 71 J P 30 : 96 L T 197, Doggett v. Gatterus (1864) 17 C B (N S) 669 : 34 L J C P 46 : 10 Jur. (N.S.) 1236 : 13 W R 160 : 11 L T (N.S.) 422 : 142 R R 576, Shaw v. Morley (1877) 3 Ex. 137 : 37 L J M C 105 : 11 Cox. C C 128 : 16 W R 763 : 19 L T 15, Bows v. Fenwich (1874) 9 C P 339 : 43 L J M C 107 : 22 W R 804 : 30 L T 524 and Powell v. Kempton Park Race Course Co. (1899) A C 143 : 68 L J Q B 392 : 15 T L R 266 : 63 J P 260 : 47 W R 585 : 80 L T 538. [See also Jenks v. Turpin (1884) 13 Q B D 505 : 53 L J M C 161 : 49 J P 20 : 15 Cox. C C 486 : 50 L T 808].

Wadsworth, J.

24. The first question is whether the kuri or prize chit to which the plaintiff subscribed and which the defendants managed is a lottery. Most of the leading cases on lottery law start from a dictionary definition of the term 'lottery' usually that of Webster, who defines a lottery as a distribution of prizes by lot or chance; and I think it has been held consistently both in England and here that this distribution must not be entirely gratuitous. An attempt has been made to argue before us that a lottery is necessarily a type of wager and that the element of hazard and risk of loss necessarily enters therein. In a sense it is true that whenever a man purchases a chance in a lottery he risks losing the money which he has paid for that chance. But I do not think that it can be said that risk of loss necessarily enters into the contract of every person who joins a lottery. Otherwise it would be obvious that a case like that covered by Willis v. Young (1907) 1 K B 448 : 76 L J K B 390 : 51 S J 28 : 23 T L R 23 : 71 J P 26 : 96 L T 155, could not be a lottery; for in that case, the distribution of medals which supplied the place of tickets was gratuitous. The element of payment entered only to the extent that most of the holders (but not all of them) purchased copies of the newspaper in order to ascertain the result. Similarly, in such cases as the tea packet case, Taylor v. Smetten (1883) 11 Q B D 207 : 52 L J M C 101 : 48 J P 36, or the music hall case, Morris v. Blackman (1864) 159 E R 378 : 2 H C 912 : 28 J P 199 : 10 ur. (N.S.) 520, or the case of the lucky newspaper, Hall v. MacWilliam (1902) 85 L T 239 : 20 Cox. C C 33 : 65 J P 742 : 17 T L R 561, notionally there is a purchase of a chance along with the packet of tea or the music hall ticket or the newspaper as the case may be. But in all these cases the purchaser gets his money's worth apart from the purchase of a chance so that the element of hazard is a very slight indeed.

Although it was admitted by the respondent that the tea was good and worth all the money it is impossible to suppose that the aggregate prices charged and obtained for the packages did not include the aggregate prices of the tea and the prizes. Nor can it be doubted that in buying a package, the purchaser treated and considered it as a purchase of the tea and the coupon, whatever its value might turn out to be.

50. Therefore in so far as he lost the prize he has lost so much of the consideration that went in for it. In Hall v. Mac William (1902) 85 L T 239 : 20 Cox. C C 33 : 65 J P 742 : 17 T L R 561, in an issue of an evening newspaper, worth a half-penny, a prize was ottered for every purchaser of it. Bigham, J., observed as follows:

It is said that in seme way or another no chance is sold because the one ball-penny that is given for the newspaper is said to be exhausted by the receipt of the newspaper by the person who pays the halfpenny. That is not accurate. What the person who buys this newspaper gets for his half-penny is not the mere newspaper, but the chance as well. The two things, the newspaper and the chance, ere sold together.

51. In Kerslake v. Knight (1925) 133 L T 606 : (1925) W N 170 : 94 L J K B 919 : 23 L G R 574 : 23 Cox. C C 27 : 41 T L R 555 : 89 J P 142, this aspect is much more nearly put by Lord Hewart, C.J. It is also a case of a sale of newspaper with a prize. He observes: