The Aurangabad bench of Bombay High Court held recently that the Assistant Superintendent of Police (ASP) can conduct raids on suspected gambling houses under the Maharashtra Prevention of Gambling Act, 1887 without being specially authorized by the state government.

A full bench of Justice Mangesh Patil, Justice NB Suryawanshi and Justice RM Joshi stated that high rank officials and Magistrates like District Magistrate, Sub-Divisional Magistrate and Superintendent of Police have been conferred with the powers to conduct a raid under sub-clauses (a) to (d) of section 6(1) of the Act.

It clarified that only when delegating the authority to conduct raids to subordinates, do these high-ranking officials require special empowerment from the State Government.

“It is only in respect of their power to further delegate the same, that a distinction has been made between the Commissioner of Police in a Commissionerate area in clause (i) and the Superintendent of Police, District Magistrates and Sub-Divisional Magistrate elsewhere under clause (ii). The former derives the powers to issue warrant by operation of the statute but the latter have not been conferred with this power. They can derive such power only if they are conferred with it by the State Government”, the court held.

The full bench answered thus a reference by a division bench in a batch of petitions challenging raids effected by ASP without specific authorization from the State Government.

The reference arose from conflicting decisions of two division benches of the Bombay High Court regarding the interpretation of Section 6(1) of the Act. This section outlines the powers of police officers to conduct raids on suspected gambling houses. The question before the court was whether an ASP could exercise powers under sub-clauses (a) to (d) of Section 6(1) of the Act without specific empowerment by the State Government. Sub-clauses (a) to (d) empower the police to enter suspected gambling premises, conduct searches, take individuals into custody, and seize relevant items.

In 2019, a division bench in Dilip Namdev Irale v. State of Maharashtra declared a raid conducted by an unempowered Deputy Superintendent of Police as illegal. However, the division bench in the present case disagreed, citing inherent authority of officers like the ASP to act without special empowerment. Thus, it referred the question to a larger bench.

Section 6(1)(i) of the Act provides that in areas where a Police Commissioner has been appointed, police officers not below the rank of a Sub-Inspector can raid suspected gambling houses as per sub-clauses (a) to (d) of section 6(1). These officers must be empowered either by a general order or by a special warrant issued on a case-by-case basis by the Police Commissioner.

Section 6(1)(ii) provides that where no Police Commissioner is appointed, police officers not below the rank of a Sub-Inspector may be authorized to conduct raids by special warrant issued by District Magistrates, Sub-Divisional Magistrates, Taluka Magistrates, Superintendents of Police, or Assistant or Deputy Superintendents of Police. However, unlike in clause (i), the officers mentioned in clause (ii) cannot issue warrants to subordinates unless specially empowered by the State Government.

The division bench emphasized the distinction between clauses (i) and (ii) of Section 6(1), highlighting that while clause (i) explicitly empowers the Commissioner to issue warrants, clause (ii) provides that state government may specially empower the specified officers to authorise subordinate officers to conduct the raid.

The division bench said that the special empowerment is required only for the specified officer to issue warrant authorizing a subordinate officer to conduct the raid. This means that the specified officer (the ASP in this case), has the implied authority to personally conduct the raid, the division bench opined. The division bench cited the administrative law principal that a person who is authorized to delegate a power can himself exercise that power.

The full bench upheld the view of the division bench, relying on Apex court judgments in State of Gujarat v. Lalsingh and Emperor v. Abasbhai Abdulhussein.

In other words, an ASP can exercise the powers under sub-clauses (a) to (d) without needing additional empowerment. However, the ASP cannot delegate these powers to a subordinate officer without specific authorization, the court held.

The full bench directed the matters to be placed before the appropriate bench for adjudication.

Case no. – Criminal Application No. 1763 of 2022

Case Title – Maroti s/o Gangaram Nandane & Ors. v. State of Maharashtra & Anr.