ORDER
Anil Dev Singh, J.
1. In these two writ petitions the petitioners challenge the order of the Commissioner of Police, New Delhi, dated April 16, 1991 whereby sale of lottery tickets, both State and private have been prohibited in the entire National Capital Territory of Delhi w.e.f. April 17, 1999, under section
144 of the Code of Criminal Procedure. There are two petitioners in Writ Petition No. 391 of 1999. The first petitioner is the Akhil Bhartiya Sarkari Lottery Vyapari Mahasangh, a society registered under the Societies Registration Act, 1860, and the second petitioner is its General Secretary. The members of the society are dealing in the sale of lottery tickets organized by State Governments. In Writ Petition No. 368 of 1999 there is one petitioner. He is Vijay Prakash, who is the sole proprietor of M/s. Vijay Associates. This petitioner too claims to be engaged in the business of sale of lottery tickets organized by the States. He also claims that he has been appointed as stockist for Arunachal Pradesh State lotteries. According to him, he is authorised to sell the tickets of the Arunachal Pradesh State lotteries anywhere in India. Both the petitions highlight the
fact that a Constitution Bench of the Supreme Court of India in State of Haryana Vs. M/s. Suman Enterprises and others, , laid down the minimal characteristics of a lottery which can claim to be “organized” by the State. One out of the three basic and essential requirements of the lottery organized by the State is that the State itself must sell the lottery tickets, though if it considers necessary or proper so to do, sell the same through a sole distributor or selling agent or several agents or distributors under terms and conditions regulated by the agreement reached between the parties. The petitioner (in Criminal Writ Petition No. 368/99) asserts that keeping in the view the said judgment of the Supreme Court an agreement was entered into on October 10, 1997 between the Governor of Arunachal Pradesh and M/s. N.V. Marketing Pvt. Ltd. whereby the latter was appointed as the sole distributor for Arunachal Pradesh State Lotteries for a period of five years. According to clause 3 of the said agreement, M/s. N.V. Marketing Pvt. Ltd. had been authorised to appoint stockists nywhere
in India. The petitioner in W.P. No. 368/99 also alludes to the fact that under clause 3 of the agreement the petitioner was appointed as a stockist for selling tickets of Arunachal Pradesh State Lotteries. The petitioners inter-alia challenge the impugned order as being beyond the scope of Section 144 of the Code of Criminal Procedure (for short “the Code”) inasmuch as the business in question being a lawful one, the said provision could not be utilised to ban the same. They also aver that in any case the conditions for the application of section 144 did not exist at the time of the passing of the banning order. The petitioners also characterize the ban to be violative of their fundamental rights guaranteed by Article 19(1)(g) of the Constitution. These pleas raised in the petition have been reiterated before us by Mr. G.L. Sanghi and Mr. P.K. Goswami, learned senior counsel, appearing for the petitioners. In order to appreciate the pleas of the petitioners it is necessary to set out Section 144 of the Code of Criminal Procedure to the extent it is relevant for the purpose of resolution of the controversy:-
“144. Power to issue order 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 immediate 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 direction is 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.
2. Thus, it is clear that the power under Section 144 of the Code is meant to be exercised to prevent harmful incident, in the nature of obstruction, annoyance or injury to any person lawfully employed, or to combat situations interalia which endanger human life, health and safety or which disturb public tranquillity or cause a riot or an affray. The essence of action under Section 144 is the urgency which requires immediate action. Mr. G.L. Sanghi and Mr. P.K. Goswami, learned senior counsel for the petitioners submitted that an order banning the sale of lottery tickets can never be made in exercise of Section 144 of the Code. We cannot subscribe to this view. We fail to appreciate as to how anything including sale of lotteries which causes or is likely to cause danger to human life, health or safety or causes or is likely to cause disturbance to public tranquillity or riot or an affray would not be covered by Section 144 of the Code. If any pernicious and harmful activity falls in the field of Section 144 of the Code and the situation demands an urgent action the same can be taken thereunder:-
3. The fact that lotteries have a pernicious tendency is evident from the fact that private lotteries were prohibited as far back as in 19th century by means of Private Lotteries Act, 1844. Though the Private Lotteries Act, 1844 was repealed, the same spirit permeating its various provisions has reincarnated in the shape of Section 294-A of the Indian Penal Code. According to Section 294-A whoever keeps an office or any place for he
purpose of drawing any lottery, not being a State lottery, or a lottery authorised by the State Government, is liable to be punished with imprisonment for a term extending to six months or with fine or with both. Section 294-A also makes publication of a proposal to pay any sum, or to deliver any goods or to do or forebear from doing anything for the benefit of any person or any event or contingency relative or applicable to the drawing of ticket, lot, number or figure in any such lottery shall be punished with fine which may extend to Rs. 1000/-. Therefore, under Section 294-A if any person runs a private lottery, he is liable to imprisonment or fine or both. It appears to us that when the Government itself runs a lottery or permits lottery to be run, the lottery is not legitimized but it only exempts that lottery from the operation of Section 294A of the Code.
4. At this stage is will be apposite to refer to the preamble to the Private Lotteries Act, 1844 which reads as follows:-
“Whereas great mischief has been found to result from the existence of lotteries : (1), it is hereby enacted, that in the Territories subject to the Government of the East India Company, all lotteries not authorised by Government, shall, from and after 31st of March 1844, be deemed, and are hereby declared common and public nuisance and against law; (2), and it is hereby enacted, that from and after the day aforesaid, no person shall, in the said Territories, publicly or privately, keep any office or place for the purpose of drawing any lottery not authorised by Government, or shall have any such lottery drawn, or shall knowingly suffer any such lottery to be drawn in his or her house; and any person so offending shall for every such offence, upon conviction, before a Justice of the Peace or Magistrate, be punished by
fine not exceeding Rs. 5000.”
5. Thus it recognises the fact that lotteries are capable or great mischief. It also declares the lotteries to be a source of common and public nuisance and against law. It may be noted that the mischief due to gambling has limited effect. It is confined to few participants while in the case of a lottery the mischief is wide spread. The Constitution Bench of the Supreme Court in State of Bombay Vs. R.M.D. Chamarbaugwala and another, , while referring to various decisions and ‘dharamashastras’ held as follows:-
“It will be abundantly clear from the foregoing observations that the activities which have been condemned in this country from ancient times appear to have been equally discouraged and looked upon with disfavour in England, Scotland, the United States of America and in Australia in the cases referred to above.
We find it difficult to accept the contention that those activities which encour age a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the heard 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 Art. 19(1)(g).
We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country’s trade, commerce or intercourse to be declared as free under Art. 301. It is not our purpose nor is it necessary for us in deciding this case to attempt as exhaustive definition of the word “trade”, “business” or “intercourse”.
We are, however, clearly of opinion that gambling whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Arts. 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra-commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Art. 19(1)(g) or Art. 301 of our Constitution.”
6. Again the Supreme Court in a recent decision in M/s. B.R. Enterprises Vs. State of U.P. and others, 1999 (3) SCALE 171, while dealing with the vires of the Lotteries (Regulation) Ordinance, 1997, and the nature and character of lotteries has reiterated the view expressed in R.M.D. Chamarbaugwala (supra) and has held as follows :-
“Within the parameter of the aforesaid submission, now we proceed to decide issues of great importance, namely, the nature and character of lotteries, whether they by their very nature even if legitimised could be classified as commercium hence trade and business at the common parlance? or it is distinct class by itself, legalised for a limited purpose, for achieving specialised objective to be used for a temporary period. What is the reason for gambling to be legitimized, if in a given situation it has to be for a wider and purposeful objectives which leads to imposing conditions to reduce its evil consequences as suggested by this Court through Suman Enterprises (supra), adopted through Section 4 of the impugned Act, does it loose its original character of being pernicious. Even if it could be said to have diluted it, could it still be classified as commercium and equated with every other form of trade and commerce? Its effect on its citizens has been cause of concern which had drawn attention of the kings and his subject since ancient time, the Government and the courts of various countries including ours. On the one hand, ometimes, justifying for the benevolent and good cause like charitable purpose and public benefit, but later reiterating even from this stand on account of its pernicious effect on the public at large on account of its condemnation to such a magnitude that it resulted into complete banning of such lotteries. Justification, as in the present case, is for the argumentation of public revenue which swells through voluntary contributions contrary to the exaction through compulsion as in the cases of taxes. This scenario was in the past and in going on not only in this country but other countries of the word also.
In this background, now we proceed to consider first, what is the nature and character of the lotteries? What changes, if any, is brought in when lottery becomes States lottery? So far as lotteries are concerned, it can neither be denied nor has been denied that lotteries are a form of gambling. The question next is whether a lottery, which is not a State lottery, if it is gambling, does it loose its character as such when it becomes a State lottery? The lotteries as such are pernicious in nature cannot be denied. However, the submission is, when it cloaks itself with the linen of State authority and is presented as State organized lottery, it looses its pernicious character and what could be said before he puts on the cloak to be res extra commercium becomes commercium. Hence, for this we have to understand, what is trade and business, and what is lottery? Unless their true nature and character is understood, submissions could not be properly appreciated. We are also conscious, the resultant conclusion of it would not be proper if based on views of one or two individual judges but has to be based on what was and is understood at the common law. For this, we have to turn our pages to the ancient history to gather wholesome view as to what was understood then and what is understood now, which is revealed through the ancient texts and various decisions of our courts and courts of other countries.
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When character of both the State organized lotteries and other lotteries remains the same by merely placing the apparel of the State with authority of law, would not make any difference, it remains gambling as element of chance persist with no element of skill……No gambling could be commercium hence in our considered opinion the principle of RMDC case (supra) would equally be applicable even to the State organized lottery. In no uncertain terms the said decision recorded that the constitutional makers could never have conceived to give protection to gambling either under Article 19(1)(g) or it as a trade under Article 301 of the Constitution.”
7. The Supreme Court in the above said decisions, which are locus classicus on the subject, have highlighted the fact that gambling and lotteries encourage spirit or propensity for making easy gain by lot of chance, which leads to loss of hard earned money of a common man. This has the effect of lowering his standard of living and driving him into chronic state of indebtedness which eventually disturbs peace and happiness of his home.
8. Just because the lottery is being run by the State, does not makes it any less pernicious. It also has the propensity like the private lottery to decimate the earnings of the poor classes of people. They in the hope that they might strike the jackpot, keep on spending their hard earned money in buying lottery tickets thereby reducing their financial capacity. This seriously affects their power to acquire bare necessities of life like food, medicine, clothing and shelter for their families.
9. In Sri Madanlal Batra and another Vs. State of West Bengal and others, (Appeal No. 1637/93, decided on 7th September, 1993) a Division Bench of the Calcutta High Court has held such an activity to be pernicious in nature. Having held so the Calcutta High Court upheld an order under Sectrion 144 of the Code imposing ban on the sale of lottery tickets of a State organized lottery. In this regard, the Calcutta High Court laid down as follows:-
“There should be and there can be, no doubt that lotteries are sources of “great mischief”, so much so that the Private Lotteries Act, 1844 (now repealed and replaced by Section 294-A, Penal Code), whereby all private lotteries were declared illegal and were prohibited, declared in the Preamble that “great mischief has been found to result from the existence of lotteries and, therefore, lotteries “are hereby declared common and public nuisance and against law”. It would be trite to say that no one can have any legal right to carry on business, carrying on whereof causes great mischief to the individual and the society and which are “common and public nuisance” and/or “against law”. As far back as 1850, the Supreme Court of Phalen Vs. Commonwealth of Virginia, (12 Law Ed.) 1030 at p. 1033) observed thus:-
“Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with widespread pestilence of lotteries. The former are confined to a few persons and places, but, the latter infests the whole community, it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple”.
These observations were quoted with approval in later American case and also in the leading five-Judge Bench decision of the Supreme Court in State of Bombay Vs. R.M.D. Chamarbaugwala (1957 S.C. 699 at p. 720). Lotteries obviously encourage a spirit of propensity for making easy gain by lot or chance, which lead to the loss of the 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. The aforesaid Supreme Court decision is a clear authority for the proposition that such business relating to lotteries cannot amount to a lawful trade, commerce or intercourse to clothe the persons carrying on such business with any lawful right to do so. Lotteries do and cannot but have an element of gambling, and even if the State has authorised the same or has imposed regulatory measures to control them, the same cannot in any way alter the nature of gambling which is inherently vicious and pernicious.
We have no doubt 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 condemned by the courts, including our 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.”
10. When a person purchases a lottery, he makes a gamble and takes a risk in the hope that by investing some money he will be able to get a reward several times more in proportion to what he spent thereon. The result of the lottery ticket does not depend upon the skill of the purchaser thereof but it depends upon chance. The element of gambling is inbuilt in the lottery. Whether it is the lottery run by the State or by a private party, is immaterial. It has great potential for mischief which is capable of adversely affecting the lives of great number of the members of the community to the greatest extent, especially poorer sections of the society.
11. It undoubtedly can wreck havoc to the financial status of the people and can reduce them to a state of penury. Families can face starvation and ruination. People get addicted to the practice or purchasing lottery tickets in the hope that they will strike gold. Their dreams seldom materialise but their lives most of the times and up in disaster, disaster for them and disaster for their families. Such being the position, the business of lotteries in an appropriate case can be banned under Section 144 of the Code provided it creates danger to human life, health and safety. The concept of life in the present times and in its expanded horizon includes all that gives meaning to a person’s life. It does not merely mean a Physiological life. In ‘life’ is comprised everything which makes life worth living, wholesome and elevating. Therefore, the words “danger to human life” cannot be cribbed or limited to mere threat or danger to physical body. Anything which affects the life of a person adversely, for example, something which impoverishes a person, ruins his financial status and peace of his family, and cripples his capacity to acquire food, shelter, medicine and other essentials of life can certainly be considered as something affecting or endangering human life, which is one of the elements needed for exercise of power under Section 144 of the Code.
12. Learned senior counsel for the petitioners drew our attention to the decision of a learned Single Judge of this Court in M.S. Associates Vs. Commissioner of Police and anther (Criminal Writ Petition No. 31 of 1996, decided in May 1996) in support of their submission that sale of lotteries can never fall in the field of Section 144 of the Code. If we may say so with respect, the view that sale of lotteries can not be banned under Section 144 of the Code is not a correct exposition of law.
13. In the instant case the impugned ban has been imposed on the organisation and conduct of lotteries as their adverse effect was so immense that there was apprehension of danger to human life and property. It was also imposed for preventing disturbance of public tranquillity. Since the organisation and conduct of lotteries were causing danger to human life, the provision of Section 144 were clearly attracted. The authority charged with the duty to protect human life and the maintenance of public order could not stand by and watch and not discharge its statutory duty under Section 144 of the Code.
14. At this stage it will be necessary to closely examine the impugned notification. For this purpose, it will be convenient to set out the notification for immediate reference:-
1. Whereas it appears to me that the lotteries both State and Private have found a favourite haven for massive sale of such tickets in the National Territory of Delhi.
2. AND WHEREAS an unhealthy competition between the lottery tickets sellers has developed.
3. AND WHEREAS such lotteries allure thousands of people of different walks of life particularly young, poor wage earners and working masses who engage themselves in such reckless gambling till they are finally exhausted;
4. AND WHEREAS the addiction to lotteries does, seriously affect the living of the persons so addicted and thus, endangers human life and safety and public orders.
5. AND WHEREAS such lotteries encourage a spirit of propensity for making easy gain by lot of chance which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower the standard of living and drive him into a chronic State of indebtedness and eventually disrupts the peace.
6. AND WHEREAS it appears to me from the trend of events that there is imminent apprehension of the disturbance of public tranquillity and breach of peace and danger of human life, property over this unhealthy competition of sale of lotteries and allurement of the people for engaging themselves in this trade.
7. AND WHEREAS consider it necessary to promulgate prohibition order u/s. 144 of the Code of Criminal Procedure, 1973 (Act
2 of 1974) for prevention of such disturbance of public tranquillity and public morale and breach of peace and/or
danger to human life and property.
8. Now, therefore, in exercise of powers conferred upon me under section 144 Criminal Procedure Code, read with Govt. of India, Ministry of Home Affairs, New Delhi Notification No.A-1103643/73(1)-UTL dated 1.7.78, I, V.N. Singh, Commissioners of Police, Delhi do hereby make this written order prohibit from 17th day of April, 1999 and person or persons from selling of lottery tickets, both State and private and all activities connected to it which are likely to cause disturbances of the public tranquillity and public morale and breach of peace and/or danger to human life and property in the entire National Capital Territory of Delhi.
9. This order stand remain in force for a period of 60 days that is upto 15th June, 1999 unless withdrawn earlier.
10. Any person contravening this order shall be punished under Section 188 of the Indian Penal Code.
11. This notice cannot be served individually; on all concerned, the order here is by passed ex parte, and
12. This order shall be published for the information of public through press and by affixing copies on the notice board of the office of all district DCSP/ADL DCSP, ACSP tehsil office all police stations concerned and the office of the MCD.”
15. As is apparent the notification records the circumstance which urgently required preventing the sale of lottery tickets, both State and private, and all activities connected therewith which were likely to cause breach of peace, danger to human life and property in the National Capital Territory of Delhi.
16. As is also clear from the notification, the lottery business was banned in order to save thousands of people from different walks of life, particularly wage earners and working masses, from engaging themselves in reckless gambling in the form of purchase of lottery tickets. The notification also takes note of their addiction of lotteries thereby seriously affecting their lives. It also refers to the fact that lotteries encourage man’s spirit of propensity for making easy gain which leads to loss of his hard earned money. This tends of lower the standard of living of already impoverished common man and drives him into a chronic state of indebtedness which eventually disrupts his peace. The impugned order takes into account the trends or events which caused imminent apprehension of the disturbance of the public tranquillity and breach of peace and danger to human life.
17. Mr. Kirat N. Raval, learned Additional Solicitor General, submitted that the Commissioner of Police before passing the impugned order evaluated the trends and events based on the material received by him regarding the emergent situation created by sale of lottery tickets. Learned Additional Solicitor General stated that the material was available for our perusal. Our attention was also invited to the following averments in the counteraffidavit :-
“That the averments made in para 4 of the petition are denied. The answering respondent however, submitted that the prohibitory order under Section 144 Cr.P.C. were issued being intelligence report was received that the sale of lottery tickets is causing problem to the maintenance of public order is the streets. The buyers of the tickets are congregating in front of the lottery shops and indulging in betting on single digit i.e. one of the digits of the number borne by each lottery tickets. Through the sale of lottery, the settlers are whetting gambling instincts of economically weaker sections of society, thus bringing ruination of their families and also promoting criminal tendencies among them”.
18. Learned senior counsel for the petitioners, however, submitted that the order cannot be allowed to be improved upon or explained by an averment or an assertion made in an affidavit or by production of some material which is not incorporated therein. In support of their submission, they relied upon the decisions of the Supreme Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, , and Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, .
19. We have considered the rival contentions of the learned senior counsel for the parties on this aspect of the matter. It seems to us that it was not necessary for the Commissioner of Police of incorporate in the impugned notification the material or in other words the evidence which impelled him to conclude that the trends and events indicated imminent danger to human life, health and safety etc. Since the members of the community engaged themselves in gambling in the form of purchase of lottery tickets thereby obviously reducing their capacity to acquire food, shelter, medical care,
which are necessities of life for their family, Section 144 of the Code was rightly invoked by the Commissioner of Police. Even in Madhu Limaye Vs. Sub Divisional Magistrate, Monghyr and others, , which was relied upon by learned senior counsel for the petitioners, it has been held that nuisance, namely, danger to human life, health and safety have no doubt to be abated and prevented. It also recognised that key note of the power comprised in Section 144 of the Code is of free society from menace of serious disturbance of a great magnitude. It was precisely for these reasons that the impugned notifications was issued.
20. Mr. G.L. Sanghi and Mr. P.K. Goswami, learned senior counsel for the petitioners, submitted that power under section 144 can be exercised in defense of legal rights and lawful performance of statutory duties, rather than in suppressing them. They submitted that the impugned order suppresses the legal rights of the petitioners. The learned counsel relied upon the decision of the Punjab and Haryana High Court in Municipal Committee, Dhanaula Vs. District Magistrate, Sangrur and another, , and the decision of the Supreme Court in Madhu Limaye’s case (supra). The principle of law adumbrated in the said decisions in un-exceptional. The submission of the learned counsel however, over looks the fact that the sale of lottery tickets to the members of the community affected their right to life enshrined in Article 21 of the Constitution and the order was passed in defense thereof.
21. Learned counsel for the petitioners also submitted that the power comprised in Section 144 is a judicial or quasi-judicial power and could
not be delegated to an administrative authority like the Commissioner of Police. We do not agree with the submission of the learned counsel. In Gulam Abbas Vs. State of U.P., , it was held that an order made under section 144 of the Code cannot be regarded as a judicial or quasi-judicial order. The order is of an administrative nature.
22. It also needs to be noticed that the rights protected by Article 19(1) are not absolute. The limitations are stated in Clauses (2) to (6) of Article 19. The rights guaranteed in Article 19(1)(a) to (g) are to be
read alongwith the qualifications contained in Clauses (2) to (6) of Article 19. The right to practice any profession or carry on any occupation, trade or business does not extent to practicing profession or carrying on an occupation, trade or business which is inherently vicious and pernicious. It does not entitled a citizen to carry on trade or business activi-
ties which are immoral and criminal. These are res extra commercium, i.e., they are outside commerce. May be the interest of a citizen lies in carrying on trade or business which is pernicious but demands of public interest have to be given primacy and they over ride individual interest.
23. Since the business of sale of lottery tickets is of a pernicious nature, no person has a legal or a fundamental right in it. There is good authority for the proposition that trade or business which is noxious or
pernicious in nature, is not covered under Article 19(1)(g) and 21 of the
Constitution. The Apex Court in M.J. Sivani and others Vs. State of Karna-
taka and others, , was confronted with the question as to whether regulation of video games violates the fundamental right to trade or business or avocation guaranteed under Article 19(1)(g) and 21 of the
Constitution. In this regard it held as follows:-
“….No one has inherent right to carry on a business which is injuries to public danger to the community may be totally prohibited or be permitted subject to such conditions or restrictions as would prevent the evils to the utmost.
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…It its exhibition is found obnoxious or injurious to public welfare, it would be permissible to impose total prohibition under Article 19(2) of Constitution. Right to life under Art. 21 does protect livelihood, but its deprivation cannot be extended too far or projected or stretched to the avocation, business or trade injurious to public interest or has insidious effect on public morale or public order. Therefore, regulation of video games or prohibition of some of video games of pure chance or mixed chance and skill are not violative of Article 21 nor is the procedure unreasonable, unfair nor unjust.”
24. A Full Bench of this Court in M/s. Ivory Traders and Manufacturers Association and others Vs. Union of India and others, ,
held that no one had a right to deal in ivory or article made therefrom as such a pernicious activity cannot be treated to be a business or trade in the sense in which it is used in Article 19(1)(g) of the Constitution.
25. It will be a sad day when people will be allowed to carry on noxious or pernicious trade or business as a matter of right in the name of freedom to practice any profession or to carry on any occupation, trade or business. When under Section 30 of the Indian Contract Act, 1972 wagering agreements have been declared to be void, it does not stand to reason how a person can claim to have a fundamental right to engage in sale of ticketsof State run lotteries. Since the petitioners do not have any right much less a fundamental right to carry on the business of lotteries, the writ
petitions are liable to be dismissed on this score alone.
26. We would also like to clarify that though the State organized lottery is a subject which falls within entry 40 of List 1 of the 7th Schedule of the Constitution and a law with regard thereto is in the exclusive domain of the Parliament, the impugned ban has been imposed in exercise of the administrative power conferred on the authority under section 144 of the Code as the activity in question comes within its field of operation. Once the elements or ingredients for the application of section 144 stood satisfied the administrative authority was justified in imposing the ban on the running of state lotteries within the N.C.T. of Delhi. This power comprised in section 144 of the Code has nothing to do with Entry 40 of List I.
27. In view of the above discussion, we are of the opinion that the menace of lotteries falls within the filed of operation of section 144 of the Code and the Commissioner of Police in view of the factors recorded in the impugned notification was justified in banning the private and the State lotteries. We also hold that the petitioners have no legal or fundamental right to deal in lotteries.
28. Accordingly, the writ petitions are dismissed.