D.K. Sinha, J.

1. This criminal revision directed against the order impugned dated 12.9.2007 passed by Sri A. Kumar, judcial Magistrate, 1st Class, Seraikella in G.K. No. 737 of 2006 by which the discharge petition fred on behalf of the petitioner was rejected.

2. Prosecution story in short was that a case was registered under Section 3/4 of the Bihar Ban on Lotteries Act, 1993 read with Section 11 of the Gambling Act on the basis of self-statement of the officer in-charge of Seraikella police station alleging, inter alia, that accused petitioner had been selling lottery tickets in the market in alluring the people who used to assemble there to purchase lottery tickets Petitioner was arrestee: along with lottery ticket of the different Slates and with certain cash. The police after investigation submitted charge-sheet and. accordingly, cognizance was taken for the alleged offence under Section 11 of the Gambling Act as also under Sections 3/4 of the Bihar Ban on Lotteries Act, 1993. Petitioner had raised the point before the court-below that selling of lottery tickets did not come within the mischief of Section 11 of the Gambling Act and that the Bihar Ban on Lotteries Act had got no force pursuant to the decision made by this Court in W.P.(Cr.) No. 200 of 2004.

3. Heard Mr. Sarkbel, the learned Counsel appearing on behalf of the petitioner as also Mr. R.R. Mishra, the learned G.P. II.

A. Learned Counsel Mr. Sarkhel submitted that the State of Bihar had enacted the Bihar Ban on Lotteries Act, 1993 prohibiting the sale of lottery tickets in the State of Bihar under the provisions of Section 3 of the said Act, whereas Section 4 of the said Act provided penalty provisions in case of contravention of provisions of the Act be prescribing punishment of imprisonment. Such Act was challenge before the Patna high Court on the ground of legislative incompetence of the state of Bihar for such enactment and the Full Bench of the Patna High Court by deposing of serious writ petitions had held the Bihar Ban on Lotteries Act, 1993 as ultra vires of the Constitution of India in so far as the lotteries organized by the central Government of or any other State Government was concerned, as the State lacked legislative competence to do so. The action of the state of Jharkhand Taken by the officer-in-charge of seraikella police station in prosecuting the petitioner for the alleged (sic) of the having been declared ultra vires was absolutely without jurisdiction and misuse of the process of law business of the petitioner in pursuing the sale of lottery tickets. In the year 1998, the Parliament enacted lotteries (Regulation) Act, 1998 and Section of the said Act speaks:

A state Government may within the State prohibit the sale of tickets of a lottery organised conducted or promoted very other State.

5. Mr. Sarkhel further submitted that in similar situation a Bench of this Court in W.P.C. No. 6063 of 2002 by the order dated 16.1.2005 obersed:

In view of the Dicision Bench Judement, reported in 1994 (1)(sic) 704 State above, the Bihar Ban on Lotteries Act having itself been declared ultra vires, there (sic) the business of the petitioner should be banned and that too when the Jharkhand Government has no come out with any law in (sic).

In that (sic) of the matter if writ of Mandamus is issued drecting the comcerned respondents not to (sic) with the sale of lottery tickets by the petitioner againsted by other States since this writ petition is not (sic) with the criminal case therfore, this order will not affect the criminal triat. This order is herefore confined (sic).

6. On the other hand Mr. R.R. Mishra, the learned G.P. II appearing on behalf of the State submitted that Government of Jharkhand by the notification of the Finance Department vide No. 3646 dated 5.1.2008 restricted the promotion of sale of lottery tickets of different State within the territory of Jharkahand and therefore petitioner cannot be exonerated from his criminal liability.

7. Having regaid to the facts and circumstance of the case, I find that the Honble full Bench of Patna High Court had examined the legislation competence of the Bihar State Government and held the said (sic). Though the State of Jharkhand vide notification dated 5.12.2008 had put (sic) on the sale of letters lottery tickets of different State but I find perusal of the said notification that has been produced on the record by the learned G.P.-II that it has got prospective effect and in the view of the matter, petitioner Bijay Pramanik does not com within the teeth of the said notification which was published on 12.2008, whereas the date of occurrence was 16.10.2006. I further find that in the facts and circumstances, no offence is attracted under Section 11 of the Gambling Act.

8. In the result since offence instituted against the petitioner is in the nature of summons trial, he is acquitted in Seraikella P.S. Case No. 81 of 2006, corresponding to G.R. No. 737 of 2006 forthwith though prayer made for his discharge before the trial Court.

9. Accordingly this criminal revision is allowed.