High Court Division
(Special Original Jurisdiction)
M Moazzam Hussain J
Md Badruzzaman J
Jafar Ullah (Md) …….
…………Petitioner
Secretary, Ministry of Home Affairs and others. …………. Respondents
Judgment
June 18th, 2014
Public Amusement Act, 1933
Section 2
If the program is for public amusement it needs be held in the “place of public amusement” as defined under Section 2 of the Act and the place needs be notified as such by the Government and no person can open or keep open places of public amusement without, or otherwise than in conformity within the condition of, a license to be granted by the Deputy Commissioner.
The Nupun Khela including 1-10, 1-8, Dice and Howji are varied forms gambling. The words ‘gambling’ and ‘gaming’ appearing in the Public Gambling Act, 1867, are synonymous by connotation. Whoever found present in the ‘common gaming-house’ for the purpose of gaming, no matter playing for money, wager. stake or otherwise, is
punishable under the Act. (18 & 22)
Penal Code (XLV of 1860) Section 294A
Lotter-Lottery’ is a form of gambling punishable under Section 294A of the Code with exceptions provided therein. . …. (22)
Public Gambling Act (Ill of 1867) Section 3
Owning, keeping or having charge of common gaming-house as contemplated under Section 3 of the Act, is an offence and punishable under the law. .. …. (22)
Contract-contract being made for an unlawful purpose is void ab initio and is unenforceable. . ….. (17)
Momtazuddin Ahmed Mehedi with Shahabuddin Ahammad, Advocates-For the Petitioner.
Md Motahar Hossain, DAG with Samarendra Nath Biswas, AAG Purabi Rani Sharma, AAG-For the Respondents.
Judgment
M Moazzam Hussain J: This Rule Nisi was issued asking the respondents to show cause as to why a direction shall not be given to them not to interfere with the indoor games, namely, Nipun Khela 1-10, 1-8, Charchari, Dice, Howji and cultural programs conducted by the petitioner at Bangladesh Muktijodhya Welfare Club, Naogaon Branch premises, Naogaon, without due process of law.
2. The case of the petitioner, in brief, is that he is the Area Chief of Naogaon Muktijodhya Welfare Club, a local branch of the Bangladesh Muktijodhya Welfare Club. On 1-6-2013 he entered into a lease- agreement with Bangladesh Muktijodhya Welfare Club under which the Welfare Club has given him permission to conduct indoor games including Nipun Khela ie, 1-10, 1-8, Charchari, Dice, Howji and cultural programs in the premises of the Naogaon Muktijodhya Welfare Club, at Naogaon. As per terms of the agreement the petitioner is permitted, amongst others, to organize and conduct indoor games which includes 1-10, 1-8, Charchari, Dice, Howji Khela and cultural programs.
3. Further case of the petitioner is that the agreement gives him lawful authority to conduct his business of those games in the specified premises of the Club initially for five years renewable from time to time. His business is absolutely lawful and the law enforcing agencies have no right to disturb or interfere with his business. But he could not conduct the lawful business as the local police were frequently interfering with his business. Interference into a lawful business of any person is illegal. Therefore, the respondents need be directed not to interfere with the petitioner’s lawful business.
4. Respondent No. I, through the Ministry of Home, contested the Rule by filing affidavit-in opposition. The contesting Respondent has raised a number of contentions which by a close reading boil down to two propositions relevant for disposal of this Rule. First, Nipun Khela which includes 1-10, 1-8, Charchari, Dice, Howji and the like are gambling punishable under the Public Gambling Act, 1867 as well as under the Penal Code. Secondly, Bangladesh Muktijodhya Welfare Club or any other body or organization has no authority to permit by contract or otherwise any person or body to offer such games to be played by members of general public or to keep any common gaming-house for such games.
The lease agreement seeking to authorize illegal acts is itself illegal and the Welfare Club has exceeded its jurisdiction in executing the agreement. The agreement being illegal on the face of it the petitioner cannot claim immunity from action against him if he is found to be engaged in activities punishable under law.
5. Mr Momtaz Uddin Mehdi, learned Advocate appearing for the petitioner submits that the games indicated in the petition are mere games of innocent recreation and amusement which have nothing to do with gambling as contemplated in the Public Gambling Act. His further contention is, if such games are stopped or prohibited rural youth will be diverted to anti-social activities creating law and order problem. Mr Mehdi, however, did not say anything about the competence of the Muktijodhya Welfare Club or for that matter any other club or organization in permitting any person to be involved in indoor games coming within the meaning of gambling.
6. Mr Motahar Hossain, learned DAG, on the other hand submits that the games organized and offered by the petitioner to be played in his club premises are pure and simple gambling punishable under sections 3 and 4 of the Public Gambling Act, 1867. Since there is element of lottery in the games they are also punishable under Section 294A of the Penal Code. He referred to a circular dated 13-10-1998 issued by the Government asking the local administration to take steps against lottery offered by various trading houses for promotion of their business in the form of lucky-coupon, lucky draw, prizes etc. He contended that since the Nipun Khela, 1-10, 1-8, Dice, Howji sought to be conducted by the petitioner and keeping common gaming-house for the purpose are punishable under law the Muktijodhya Welfare Club or any other person or organization has no authority to enter upon contract for indulging in such games.
Despite the restrictions imposed by law, he insisted, a class of persons is engaged in making money holding regular sessions of the games in different places of the country and thereby destroying our youth. He finally submits that the petition is not maintainable as is brought on an agreement which is void ab initio and the games sought to be played are offences punishable under law.
7. Here in this case one Zafar Ullah of Arambag, Dhaka, posing himself to be Area Chief of Naogaon District Branch of Bangladesh Muktijodhya Welfare Club, came up with this writ petition seeking direction against the respondents not to interfere with his business comprising of Nipun Khela which, according to him, includes 1-10, 1-8, Charchari, Dice, Howji and also cultural programs at Naogaon Branch premises of the Club. He claims the games to be lawful and not anyway prohibited by law. His specific case is that the respondents, more specifically, the police do not have any authority to enter upon his premise and interfere with his lawful business which they often are doing. He obtained the Rule on the established principles of law that-‘All that is not prohibited by law is legal’.
8. Over the years series of similar writ petitions were filed by different persons praying for similar directions. Rules were issued almost in all cases. Notices were routinely served upon all the Respondents. They did not appear to be very particular about disposal of the Rule. At long last the Respondents have appeared with a robust defense assailing the legal status of the games especially by reference to specific pieces of legislations, namely, The Public Gambling Act, 1867; The Penal Code; The Places of Public Amusement Act, 1933 and the National Sports Council Act, 1974.
9. We examined the legislations now in place regulating sports, amusements and games. The Public Gambling Act, 1867 as amended up to January, 2007 appear to be most relevant in the present context. The Public Gambling Act was enacted for punishment of public gambling and the keeping of ‘common gaming houses’. The Act does not, however, define gambling. In section 1 A the Act ‘gaming’ is defined as follows:
lA. “gaming” includes wagering or betting except, wagering or betting upon a horserace, when such wagering or betting takes place-
(a) on the day of which such race is to be
(b) in an enclosure which the Stewards controlling such race have, with the sanction of the Government, set apart for the purpose, and
(c) (i) with a licensed bookmaker, or
(ii) by means of a totalisator as defined in Section 14 of the Amusement Tax Act, 192. but does not include a lottery.
10. The same section defines ‘common gaming-house’ as follows: common gaming-house” means any house, room, tent, or walled enclosure, or space or vehicle, or any place whatsoever, in which any instrument of gaming are kept or used for the profit or gain of the person owning occupying, using or keeping such house, room, tent, enclosure, space, vehicle of place, whether by way of charge for the use of such house, room, tent, enclosure, space, vehicle, place, or instruments or otherwise howsoever.”
(To be continued)
