## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE V.G.ARUN**
**TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942**
## **Crl.MC.No.5809 OF 2020(E)**
**AGAINST THE ORDER/JUDGMENT IN CRRP 27/2018 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM**
## **PETITIONER/S:**
**N. JAYAMURUGAN AGED 51 YEARS S/O. S. NAGALINGAM, PARTNER OF M J ASSOCIATES, PALAKKAD, RESIDING AT NO.99, CANAL BANK ROAD, CIT NAGAR, NANDANAM, CHENNAI, TAMIL NADU - 600 035.**
**BY ADVS. SRI.VINUCHAND SRI.C.R.VINOD KUMAR SHRI.GEEVARGHESE MATHEW**
## **RESPONDENT/S:**
**THE DEPUTY SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, ACB, KOCHI - 682 017.**
## **OTHER PRESENT:**
## **SC FOR CBI SASTHAMANGALAM S. AJITHKUMAR**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.12.2020, THE COURT ON 23.02.2021 PASSED THE FOLLOWING:**
_**Crl.MC.5809/2020**_
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## **V.G.ARUN, J.**
## **-----------------------------------------------**
## **CRL.M.C.No. 5809 of 2020**
## **-----------------------------------------------**
**Dated this the 23[rd] day of February, 2021**
## **O R D E R**
Petitioner is the 5[th] accused in C.C.No.218 of 2015 pending before the Chief Judicial Magistrate, Ernakulam. The following is a brief narration of the essential facts;
The Government of Sikkim appointed M/s.Martin Lottery Agencies Ltd.( 'MLAL' for short ) as its sole distributor for Kerala, to market and sell lottery tickets organised and conducted by the Government of Sikkim. For this purpose, agreements were entered into between MLAL represented by its Director, Santiago Martin and the Government of Sikkim. The conduct and sale of lotteries ought to have been in accordance with the Lotteries (Regulation) Act, 1998 ('the Act' for short), and after its introduction on 1.4.2010, the Lotteries (Regulation) Rules, 2010 ('the Rules' for short). On 9.11.2010, Crime No.754 of 2010 was registered at the Museum Police Station, Thiruvananthapuram against Sri.Santiago Martin, Managing Director of
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MLAL and Sri.John Kennedy, Proprietor, Megha Distributors, Palakkad for the offences under Section 420 read with 34 of IPC, Sections 4(d) and 4(f) read with 7(3) of the Act and Rules 3(5) and 3(17) of the Rules. The crime was registered based on a written complaint received from the Head of the Lottery Monitoring Cell, Kerala State, alleging that the accused, who were the promoters of Sikkim and Bhutan Lotteries, had violated various provisions of the Act and Rules, such as;
- _1.Not ensuring the authenticity and credibility of the tickets._
- _2.Not remitting the unclaimed prize money to the Government of Sikkim within the prescribed time._
- _3.Not printing the lottery tickets in Government Press or High Security Press._
_and_
- _4.Not remitting the money received by the sale of lottery tickets to the State Public Ledger Account or to the consolidated fund etc._
2. The complaint resulted in 32 crimes being registered at different police stations in the State. Later, considering the interstate ramifications and the amount of money involved, the investigation was handed over to the Central Bureau of Investigation. Of the 32 cases, the CBI filed closure reports in 23 cases and filed a consolidated final report/charge sheet in 7 cases. The allegation regarding non-ensuring of the authenticity and credibility of the tickets, by printing the seal
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and logo of the State on the lottery tickets, was found to be wrong and the final report was filed with the following allegations;
After being selected as the sole distributor for Sikkim Lotteries, a criminal conspiracy was hatched among Sri.Santiago Martin (A1), MLAL and unknown officials of Sikkim Government, for obtaining unlawful gain to Santiago Martin and MLAL, by cheating the Government of Sikkim, by violating various provisions of the Act. With this objective, an agreement was entered into between Santiago Martin, MLAL and the Government of Sikkim to entrust Sikkim Lottery Tickets to MLAL as the sole distributor for various states, including Kerala, for a period of three years from 6.8.1999 to 5.8.2002. Many of the clauses in the agreement were worded with intent to provide unlawful gain to MLAL and consequent loss to the Government of Sikkim. A second agreement, for a period of five years from 9.4.2001 to 8.4.2006, was entered into on 17.2.2001 and a third agreement for five years, on 6.10.2004, which was extended by another five years. An amendment agreement was executed on 8.4.2008 incorporating more clauses favouring the distributor. In the meanwhile, in December, 2007, the petitioner joined the conspiracy, in furtherance of which Sri.Santiago Martin constituted a partnership firm named ‘M/s.M.J.Associates’ with effect from 31.1.2007, for the sale of Sikkim and Bhutan lottery tickets in the State of Kerala. Sri.Santiago Martin held 51% shares in the partnership and the petitioner, 49%. The partnership continued till
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13.6.2010. In the meanwhile, MLAL had changed its name to M/s.Future Gaming Solutions India Private Limited. By yet another agreement executed on 10.8.2009, the Government of Sikkim appointed M/s.Future Gaming Solutions India Private Limited as the sole purchaser and in furtherance of the criminal conspiracy, a clause providing for fixed payment for the lottery tickets purchased by the sole purchaser was included in the agreement. As per Rule 3(5) of the Rules, paper lottery tickets and the stationary on which online lottery tickets are issued should be printed by the organising State at the Government Press and/or any other High Security Press included in the panel of the Reserve Bank of India or the Indian Banks Association. Contrary to the stipulation, the paper lottery tickets of Sikkim Government were printed at M/s.Mahalakshmi Offset Printing Press, Sivakasi, which is not a Government Press or a High Security Press included in the panel of the Reserve Bank of India or the Indian Banks Association. Rule 4(5) was alleged to have been violated, by the distributor failing to return the unsold tickets to the organising State with full accounts along with challans of the money deposited in the public ledger account or in the consolidated fund of the organising State. It was alleged that Section 4(d) stood violated by the distributor/sole purchaser failing to remit the entire proceeds from the sale of lottery tickets in Kerala, with the Government of Sikkim. According to the prosecution, the sales bill raised by the Government
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of Sikkim for the period from 1.4.2009 to 31.3.2010 and as per the MRP of the tickets sold for the period from 1.4.2010 to 31.8.2010 was Rs.4,970.42 crores against which, M/s.Future Gaming Solutions India Private Limited remitted only Rs.142.93 crores. Section 4(f) of the Act was also violated by not remitting the unclaimed prize money with the organising State. The relevant portion of Charge-1 of the final report reads as under;
_“Thus the accused persons A-1 to A-7 by way of non remittance of sale proceeds to the Sikkim Government, non remittance of unclaimed/undisbursed prize money back to the Sikkim Government, printing of Sikkim Lottery tickets from a non security press not empanelled by RBI/IBA, not returning the unsold tickets back to the Sikkim Government, not returning undisbursed prize amounts to the Sikkim Government and manipulation of data showing unsold prize winning tickets as sold and claiming the same from Sikkim Government, and cheating the Government of Sikkim by entering into an agreement containing covenants contrary to the LR Act and Rules and thus deceived the Sikkim Government in not receiving the full sale proceeds of the lottery tickets and A-1 by practically conducting the Sikkim Govt. Lotteries in the name of M/s.FGSIPL, committed the offence punishable U/s.120B, 420 IPC r/w Section 4(d), 4(f), 7(3), 9 of Lotteries (Regulation) Act, 1998 and 3(5), 4(5) of Lotteries (Regulation) Rules, 2010.”_
## 3. Charge-8, being the specific charge against the petitioner, is extracted here under;
_“That A-5 Shri N Jayamurugan, Partner of M/s. MJ Associates, Palakkad during 2007 to 2010 in furtherance of the_
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_Criminal Conspiracy narrated in Charge No.1, sold and distributed Sikkim Lottery tickets violating Section 4(d) of the Lotteries (Regulation) Act, 1998; Section 4(f) of the Lotteries (Regulation) Act, 1998 that the prize money unclaimed within such time as may be prescribed by the State Government or not otherwise distributed, shall become the property of that Government; during 1-4-2010 to 31-8-2010 Rule 3(5) of the Lotteries (Regulation) Rule, 2010 that the paper lottery tickets and the stationery on which the online lottery tickets are issued shall be printed by the organising state at a Government press or any other high security press included in the panel of Reserve Bank of India or The Indian Banks' Association, Mumbai; during 1-4-2010 to 31-8-2010 Section 4(5) of the Lotteries (Regulation) Rule that the distributors or selling agents shall return the unsold tickets to the Organising States with full accounts along with the challans of the money deposited in the Public Ledger Account or in the Consolidated Fund of the Organising State through the sale of tickets and thereby committed offence punishable section 7(3) of Lotteries (Regulation) Act, 1998.”_
4. The petitioner entered appearance in the case and thereafter submitted an application seeking discharge under Section 239 of Cr.P.C. By Annexure A7 order the jurisdictional Magistrate discharged the petitioner of the charges under Sections 4(d) and 4(f) of the Act and Rule 4(5) of the Rules. As regards the offences under Section 9 read with Section 7(3) of the Act, it was held that the question can be considered only at the time of trial and it would be premature to conclude that the Sections are not attracted. Likewise, the question as to whether the offence under Rule 3(5) is attracted or not was also
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held to be a matter for evidence, to be decided after full fledged trial.
5. Aggrieved by Annexure A7, the petitioner as well as the prosecution preferred revision petitions. By Annexure A13, the learned Sessions Judge partly allowed the revision filed by the prosecution (Crl.R.P.No.26 of 2016) and dismissed the revision filed by the petitioner (Crl.R.P.No.27 of 2016). The learned Sessions Judge held that, in addition to the charges under Section 9 read with Section 7(3) of the Act, Rule 3(5) of the Rules and Section 120B IPC, charge ought to be framed for the offence punishable under Section 420 IPC also.
6. Learned Senior Counsel appearing for the petitioner assailed the finding that charge has to be framed against the petitioner for the offence under Section 3(5) read with Sections 9 and 7(3) of the Act on the ground that Section 7 of the Act, which is the penal provision, does not make contravention of the provisions of the Rules punishable. Attention was drawn to Section 7(1), which reads as under;
_“7._ _**Penalty** .- (1) Where a lottery is organised, conducted or promoted after the date on which this Act receives the assent of the President, in contravention of the provisions of this Act, by any Department of the State Government, the Head of the Department shall be punishable with rigorous imprisonment for a term which may extend to two years or with fine or with both;_
_Provided that nothing contained in this section shall render such Head of the Department liable to any punishment_
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_if he proves that the contravention was committed without his knowledge or that he exercised all due diligence to prevent the commission of such contravention.”_
7. It is submitted that in view of the settled legal position that penal provisions are to be interpreted strictly, the petitioner cannot be charged for alleged contravention of Rule 3(5). A chart containing the penal provisions in different enactments, wherein violation of the Rules and Regulations are made punishable, was made available to contend that the Parliament had consciously omitted to make contravention of the Rules punishable.
8. With regard to the finding in Annexure A13 that charge should be framed for the offence under Section 420 read with Section 120B IPC, it was contended that in so far as the Government of Sikkim has no complaint of having been cheated of the sale proceeds legitimately due to it, no charge under Section 420 will lie. Attention was invited to Annexures A14 and A15 communications, by which the Government of Sikkim had clarified that the sole distributor (A2) has deposited all the Government revenues and all the charges due, as per the invoice raised by the Directorate of Sikkim State Lotteries. It was pointed out that the Government of Sikkim had even refused to give consent for conducting CBI investigation against its officials. It was argued that, going by the prosecution case, the agreements based on which the sale of Sikkim lotteries commenced in Kerala were executed much
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prior to the constitution of M/s.M.J.Associates, wherein the petitioner figure as a partner with only 49% shares. It is the specific contention of the learned Senior Counsel that there was no material before the court to arrive at a finding of the petitioner being a party to the conspiracy to cheat the Government of Sikkim.
9. Responding to the query of the court as to how the Crl.M.C is maintainable, the original order having been challenged in revision, the learned Senior Counsel argued that the bar under Section 397(3) Cr.P.C against a second revision is not absolute and that under special circumstances, the High Court can exercise its power under Section 482 Cr.P.C, even when a Crl.M.C is filed against an order dismissing a revision filed under Section 397. In support of this proposition, the learned Senior Counsel cited the following authorities; _**Krishnan and Another v. Krishnaveni and Another**_ [(1997)4 SCC 241] and _**Shakuntala Devi and Others v. Chamru Mahto and Another**_ [(2009) 3 SCC 310].
10. It was contended that the courts below having committed a gross illegality in finding the petitioner liable to be charged for the offences Act, the Rules and the Indian Penal Code, interest of justice demands that this Court exercise its inherent jurisdiction to prevent the abuse of process of court.
11. The learned Standing Counsel for the CBI contended that the
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scope of interference against an order dismissing an application for discharge is minimal. According to the learned counsel, all that the trial court was required to consider was whether the materials submitted by the prosecution along with the final report were sufficient to create grave suspicion of the accused having committed the alleged offences. The trial court having arrived at such finding, which is affirmed by the revisional court, there is no reason for this Court to entertain the Crl.M.C, particularly when it amounts to a second revision. It was contended that this Court cannot be called upon to decide matters which the trial court should decide on the basis of evidence adduced before it.
12. Section 397(3) Cr.P.C interdicts the entertainment of further application by a person who has already filed a revision under Section 397 either to the High Court or the Sessions Court. In _**Krishnan and Another (supra),**_ the Apex Court found that, in view of the bar under Section 397(3), a person cannot ordinarily be allowed to take recourse to the High Court under Section 397(1) or the inherent power under Section 482. But, relying on Sections 401 and 483, under which the High Court has _suo motu_ power of revision and continuous supervisory jurisdiction, it was held that when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or that the required statutory procedure has not been complied with or there is failure of justice or that the order
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passed or the sentence imposed by the Magistrate requires correction, it is the duty of the High Court to have it corrected at the inception, lest grave miscarriage of justice would ensue. Hence, it was held that, to meet the ends of justice or to prevent abuse of the process, the High Court is preserved with inherent power and be justified exercising the inherent power in appropriate cases. It was made clear that such power should be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The same view was taken by the Honourable Supreme Court in _**Shakuntala Devi and Others**_ (supra), the relevant portion of which is extracted hereunder;
_“24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases. Mr Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us.”_
Therefore, despite the prohibition under Section 397(3), this Court can, in appropriate cases and for the purpose of preventing abuse of
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process of the court, entertain a second revision or exercise the inherent power under Section 482.
13. The question is whether the instant case can be termed as an appropriate case and the further proceedings against the petitioner to be an abuse of process of court, warranting interference under Section 482, despite the bar under Section 397(3). In order to answer the question, this Court has to consider the contentions put forth by the learned Senior Counsel. The first contention is that the Act does not provide for penalising a person for violation of the Rules. Section 7(3), which is relied on for this purpose, is extracted hereunder;
## _**7.Penalty.-**_
_(1) xx xx (2) xx xx_
_(3) If any person acts as an agent or promoter or trader in any lottery organised conducted or promoted in contravention of the provisions of this Act or sells, distributes or purchases the ticket of such lottery, he shall be punishable with rigorous imprisonment for a term which may extend to two years or with fine or with both.”_
Even though at the first brush the argument is impressive, one cannot view Section 7(3) in isolation. Section 3 of the Act prohibits the State Governments from organising, conducting or promoting any lottery except in the manner provided in Section 4, which prescribes the
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conditions subject to which lotteries may be organised. As per Section 4(b), the State Government shall print the lottery tickets bearing the imprint and logo of the State in such manner that the authenticity of the lottery ticket is ensured. The manner in which the authenticity to be ensured is prescribed in Rule 3(5) which is extracted hereunder;
## _“3._ _**Organisation of Lottery.-**_
_(1) xx xx_
_(5) The paper lottery tickets and the stationery on which the online lottery tickets are issued shall be printed by the Organising State at a Government Press or any other high security press included in the panel of the Reserve Bank of India or the Indian Banks' Association, Mumbai.”_
Being so, violation of Rule 3(5) by printing the lottery tickets in a press other than a Government Press or any other High Security Press would amount to violation of not only Rule 3(5) but also Section 4(b). Understood in such manner, the failure of the Legislature to penalise the violation of the Rules as per Section 7(3) is of no avail, as far as the instant case is concerned.
14. The learned Sessions Judge rightly found the trial court to have committed a mistake by holding that the charge does not mention the offence under Section 420 IPC. The first charge, which is general to all the accused, include the offence under Section 420. The contention of the learned Senior Counsel is that the Government of
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Sikkim having clarified that the amounts due to it has been paid by the accused and having issued Annexure A15, stating that there are no dues from the distributor and having even refused to grant consent to the CBI to conduct investigation against its officials, the offence under Section 420 will not be attracted. It is contended that the person alleged to have been deceived being the Government of Sikkim, the petitioner cannot be proceeded against for the offence of cheating, in the absence of a complaint in that regard from the Government of Sikkim.
15. I find it difficult to accept the contention. Other than the Government of Sikkim, the Government of Kerala and the accused, the major stakeholders are the public who have purchased the tickets under the belief that the lottery was being conducted strictly in accordance with the provisions of the Act and the Rules. By conducting the lottery in violation of the provisions, the public, who spent money for purchasing the lottery tickets, was deceived. Therefore, irrespective of the fact that the Government of Sikkim has no complaint, the offence under Section 420 is attracted. Moreover, if during the course of trial, it is found that the officials with the Government of Sikkim are also part of the conspiracy, the trial court can exercise its power under Section 319 to proceed against those persons also.
16. The substantial contentions urged by the learned Senior
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Counsel having been answered as above, there is no special circumstance in this case which compels this Court to entertain a second revision and grant relief, in exercise of the inherent power under Section 482 Cr.P.C.
For the aforementioned reasons, the challenge against the impugned orders fail and consequently, the Crl.M.C is dismissed.
Sd/-
**V.G.ARUN, JUDGE**
_vgs_
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
|**ANNEXURE A1**|**THE TRUE COPY OF THE CONSOLIDATED FINAL**|
|---|---|
||**REPORT SUBMITTED BY THE RESPONDENT IN**|
||**R.C.NO.11(S)/2011 CBI/ACB/COCHIN,**|
||**R.C.NO.13(S)/2011 CBI/ACB/COCHIN,**|
||**R.C.NO.16(S)/2011 CBI/ACB/COCHIN,**|
||**R.C.NO.20(S)/2011 CBI/ACB/COCHIN,**|
||**R.C.NO.21(S)/2011 CBI/ACB/COCHIN,**|
||**R.C.NO.22(S)/2011 CBI/ACB/COCHIN,**|
||**R.C.NO.9(S)/2011 CBI/ACB/COCHIN BEFORE THE**|
||**HONOUABLE CHIEF JUDICIAL MAGISTRATE COURT,**|
||**ERNAKULAM.**|
|**ANNEXURE A2**|**A TRUE COPY OF THE DISCHARGE PETITION FILED**|
||**BY THE PETITIONER IN ANNEXURE A1 FINAL**|
||**REPORT DATED 8.7.2016, WHICH IS NUMBERED AS**|
||**C.M.P.NO.2201/2016 IN C.C.NO.218/2015, ON**|
||**THE FILES F CHIEF JUDICIAL MAGISTRATE**|
||**COURT, ERNAKULAM.**|
|**ANNEXURE A3**|**A TRUE COPY OF THE COUNTER FILED BY THE**|
||**RESPONDENT DATED 20.09.2017 IN ANNEXURE A2**|
||**DISCHARGE PETITION.**|
|**ANNEXURE A4**|**A TRUE COPY OF THE REJOINDER DATED**|
||**23.09.2017 AGAINST THE ANNEXURE A3 COUNTER**|
||**IN ANNEXURE A2 DISCHARGE PETITION.**|
|**ANNEXURE A5**|**TRUE COPY OF THE COUNTER TO THE RE-JOINDER**|
||**FILED BY THE RESPONDENT IN**|
||**C.M.P.NO.2201/2016 IN C.C.NO.218/15 DATED**|
||**4.10.2017.**|
|**ANNEXURE A6**|**TRUE COPY OF THE WRITTEN SUBMISSIONS FILED**|
||**BY THE PETITIONER BEFORE THE CHIEF JUDICIAL**|
||**MAGISTRATE COURT, ERNAKULAM IN ANNEXURE A2**|
||**DISCHARGE PETITION.**|
|**ANNEXURE A7**|**TRUE COPY OF THE ORDER PASSED BY THE CHIEF**|
||**JUDICIAL MAGISTRATE COURT, ERNAKULAM IN**|
||**C.M.P.NO.2201/2016 IN C.C.NO.218/15 DATED**|
||**20.01.2018.**|
|**ANNEXURE A8**|**THE TRUE COPY OF THE CRL. R.P.NO.26/2018**|
||**FILED BY THE RESPONDENT BEFORE THE HON'BLE**|
||**SESSIONS COURT, ERNAKULAM.**|
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- **PETITIONER HEREIN IN R.P.NO.26/2018 ON THE FILE OF ADDITIONAL SESSIONS COURT, ERNAKULAM.**
- **ANNEXURE A10 THE TRUE COPY OF THE CRL. R.P.NO.27/2018 FILED BY THE PETITIONER BEFORE THE SESSIONS COURT, ERNAKULAM.**
- **ANNEXURE A11 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN IN CRL.R.P.NO.27/2018 (ANNEXURE A8), DATED 14.10.2018.**
- **ANNEXURE A12 THE TRUE COPY OF THE CMP NO. 2435/2019 IN CRL. RP. NO.27/2018 (ANNEXURE A8) ON THE FILES OF ADDITIONAL SESSIONS COURT, ERNAKULAM TO RAISE ADDITIONAL GROUNDS.**
- **ANNEXURE A13 THE TRUE COPY OF THE COMMON ORDER PASSED BY THE VITH ADDITIONAL SESSIONS COURT, ERNAKULAM IN CRL. R.P.NO.26/2018 AND CRL.R.P.NO.27/2018 DATED 26.02.2020.**
- **ANNEXURE A14 A TRUE COPY OF THE PUBLIC NOTICE ISSUED BY JOINT SECRETARY, SIKKIM STATE LOTTERIES, GOVERNMENT OF SIKKIM DATED 25.09.2020 BEARING NO.FIN/DSSL/III/404/24.**
- **ANNEXURE A15 A TRUE COPY OF THE PUBLIC NOTICE ISSUED BY JOINT SECRETARY, SIKKIM STATE LOTTERIES, GOVERNMENT OF SIKKIM DATED 25.09.2020 BEARING NO.FIN/DSSL/III/404/25.**
- **ANNEXURE A16 A TRUE COPY OF THE LOTTERIES (REGULATION) ACT 1998.**
- **ANNEXURE A17 A TRUE COPY OF THE LOTTERIES (REGULATION) RULES 2010.**
- **ANNEXURE A18 A TRUE COPY OF THE PROCEEDINGS OF THE JUDICIAL MAG. COURT, ERNAKULAM DATED 04.12.2020.**