1. This is an appeal by the Government of Bombay against the acquittal by the Sessions Judge of Surat of one Nilkanth Balaji Pathak who has been convicted by the City Magistrate of Surat of two offences under the Bombay Prize Competition Tax Act, 1939, and sentenced to pay a fine of Rs. 60 in each case.
2. This Act, which is Bombay Act XI of 1939, is entitled an Act to regulate and levy a tax on prize competitions in the Province of Bombay. In Section 2(2) of the Act we have a definition :
Prize competition includes-
(a) crossword prize competition, missing words competition, picture prize competition, number prize competition, or any other competition, for which the solution is prepared beforehand by the promoters of the competition or for which the solution is determined by lot;
(b) any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known; and
(c) any other competition success in which does not depend to a substantial degree upon the exercise of skill,
but does not include a prize competition contained in a newspaper or periodical printed and published outside the Province of Bombay.
3. Section 3 provides for the levy of a tax as a percentage of the total sum received in respect of a competition. Section 4 says :-
No prize competition shall be conducted unless a license in respect of such competition has been obtained by the promoter thereof from the Collector.
Section 6 says :
Whoever contravenes the provisions of Section 4 shall, on conviction, be punishable with imprisonment of either description which may extend to three months or with fine or with both.
So that evidently the Act has two objects (1) to bring in revenue under the taxation section and (2) to require that prize competitions shall not be conducted except under a license to be obtained from the Collector, who may of course refuse a license, if he thinks fit to do so.
4. The accused in this case is the secretary of a society called the Hindu Sahayak Mandal at Surat, which seems to be a sort of charitable society, and in connection with it he promoted a scheme which was described as a Novel Gifts Scheme. A large number of tickets (we are told about 10,000) were issued. They were in the form of a receipt for a donation of two annas to the charity in question. They were issued in books of forty. The tickets or receipts were all numbered, but four had the same number and together formed what was described as a full donation receipt. In each book one full donation receipt was guaranteed a prize of two rupees, if it happened to be of the winning number. There were some other prizes including one of Rs. 2,500. All the prize winning numbers were selected beforehand and lodged with a bank. That is one scheme. There was another scheme run in connection with the Mahalaxmi Charity Fund. This was on exactly the same lines, except that each ticket or receipt was worth four annas and the prizes were-correspondingly larger.
5. It is common ground that the accused had obtained no license from the Collector under Section 4. He applied for one but it was refused. It is alleged therefore that by promoting these schemes without a license he has contravened the provisions of the Act and committed offences punishable under Section 6. The prosecution relied on the last clause of the definition, i.e. Section 2(2) (c) 'any other competition success in which does not depend to a substantial degree upon the exercise of skill.'
6. The learned Magistrate took it for granted that a scheme of this kind is a competition and he held (quite rightly on that assumption) that it was a case of a competition which does not depend to a substantial degree upon the exercise of skill and accordingly convicted the accused. It is common ground that in a scheme of this kind, where there is nothing to be done but the purchase of one or more tickets, skill does not enter into the matter at all.
7. The accused appealed to the Sessions Judge and he took the view that the language of Clause (2) implied that there cannot be a competition which does not involve some amount of skill. This we think is clearly wrong. There can be no doubt that if the schemes in question are competitions at all, they undoubtedly come under Clause (2) of the definition, and there being no license for them, the accused was properly convicted. It would seem, however, that what was really at the back of the learned Sessions Judge's mind was that a scheme of this kind is not really a competition but a sort of lottery and he thought that the Act would not apply to a lottery and would not make a license necessary for a lottery.
8. The whole case clearly depends on the simple question whether a scheme of the nature described can properly be described as a competition. We are of opinion that it can. 'Competition' by derivation means simply 'seeking together'. According to the definition in Webster's dictionary, it is the act of seeking, or endeavouring to gain, what another is endeavouring to gain at the same time. The second definition given is 'mutual strife for the same object'. Chambers' dictionary gives a shorter but similar definition of the word to 'compete'; 'to seek or strive with others for something', 'to contend for a prize '. Now it may perhaps be true that according to the ordinary use of language people would not describe such a scheme as a competition. They would rather call it a sort of lottery, although it does not appear that it would satisfy the definition of a lottery in Section 294A of the Indian Penal Code. However that may be, if we look at the derivation of the word and the dictionary meaning, it seems quite clear that that meaning would cover a scheme of this kind. It cannot be denied that the persons who purchase these tickets or receipts and are induced to do so by the advertising of the scheme are seeking or endeavouring to gain what another is endeavouring to gain at the same time.
9. If, therefore, that is a correct and possible meaning of the word 'competition', we think it must be adopted, unless there is something in the) Act which shows that it was not intended to apply to any scheme or affair which is in the nature of a lottery and involves no element of skill at all. We cannot find any indication of that kind in the Act. On the other hand, in Section 23 we find what looks like a clear indication that the legislature did realise that the Act would cover the case even of a lottery. Section 23 says 'Nothing in Section 294A of the Indian Penal Code shall apply to any person who holds a license under Section 4.' That must mean that a lottery may be licensed under the Act, that is to say if the Collector should think fit. If so, a lottery, that is to say an affair in which there is no substantial amount of skill involved, must come within the word 'competition' as understood by the legislature. Otherwise there would manifestly have been no need for enacting Section 23' at all.
10. The learned advocate who appeared for the accused before us argued that the word 'competition' implies some sort of skill or at any rate some sort of striving or contention. On the first point he is clearly wrong, for there are competitions which do not involve skill, for instance beauty competitions. The point that a certain amount of contention or strife is involved is probably supported by the use of the word in common parlance. But having regard to the derivation and the dictionary meaning, that cannot be said to be an essential element, and we are not prepared to say that it is a necessary part of the definition in this case.
11. Another point attempted to be made by Mr. Chhatrapati was that the Commissioner, N.D., on appeal from the Collector's order refusing a license said :
It is clear from the above that the scheme promulgated by the petitioner involves no element of skill whatever. The Collector has thus rightly rejected the petitioner's request for a license under the Prize Competition Tax Act. The appeal is therefore rejected.
It is argued that this shows that in the Commissioner's opinion the Act did not apply to the scheme in question. But clearly the words used by the Commissioner mean nothing of the kind. The point seems to have influenced the learned Sessions Judge to some extent also. But we think the only reasonable view to take is that the policy of the executive is not to grant licenses for schemes which involve no element of skill whatever and are therefore practically lotteries. It cannot be inferred from what the Commissioner said that he was of opinion that the Act did not apply, and even if that was his opinion, it would not of course be relevant on the construction of the Act.
12. As we agree with the learned trial Magistrate that the scheme in question can properly be described as prize competitions, it necessarily follows in our opinion that the accused was rightly convicted. The appeal must therefore be allowed, the judgment of the Sessions Judge set aside and the judgment of the trial Court restored.