Calcutta High Court (Appellete Side)
Tiash Restaurant & Bar Pvt. Ltd. & Anr vs State Of West Bengal & Anr on 24 May, 2019
Author: Jay Sengupta
Bench: Jay Sengupta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
C.R.R. 2117 of 2018
Tiash Restaurant & Bar Pvt. Ltd. & Anr.
Versus
State of West Bengal & Anr.
&
C.R.R 2299 of 2018
Downtown Temptations Pvt. Ltd.
Versus
State of West Bengal & Anr.
For the petitioners : Mr. Sudipto Moitra
Mr. Arindam Jana
Mr. Rajdeep Majumdar
Mr. Soumyajit Chatterjee
..... Advocates in CRR 2117 of 2018
For the petitioner : Mr. Sekhar Basu
Mr. Arindam Jana
Mr. Rajdeep Majumdar
2
Mr. Soumyajit Chatterjee
......Advocates in CRR 2299 of 2018
Heard lastly on : 25.02.2019
Judgment on : 24.05.2019
Jay Sengupta, J.:
1. These are companion revisions. In CRR No. 2117 of 2018, the petitioner no. 1/company and its director the petitioner no. 2 challenged the order dated 27.06.2018 passed by the Learned Additional Sessions Judge, 5th Court, Barasat, North 24 Paraganas in ST No. 09/2018 under Sections 370, 370A(2), 34 and 120B of the Penal Code and Sections 3, 4, 5, 5A, 5B, 5C, 7 and 9 of the Immoral Traffic (Prevention) Act, thereby turning down the prayer of the petitioners to revoke the seal on their restaurant cum bars. CRR No. 2299/2018 was moved on behalf of another company/petitioner challenging the same order passed by the said Learned Court in ST Case No. 09/2018, thereby also turning down the petitioner's prayer to revoke the seal on their restaurant cum bars.
2. The case of the petitioners in CRR No. 2117/2018 appears to be that the petitioner no. 1 was running restaurant-cum-bars under the name and style of 'Tiash' at Jessore Road, Kolkata and of 'Sunset' at Baguihati, Kolkata. By applications dated 11.03.2017 and 13.03.2017, the petitioners applied for renewal of excise licences for the year 2017-2018 for 'Sunset' and 'Tiash', respectively. All of a sudden on 05.04.2017 without any prior notice, 3 the police personnel from the Bidhannagar Commissionerate arrived at the said two restaurant-cum-bars, affixed notices on the doors and sealed the doors of the two units. After a few days, the petitioners moved a writ application before this Court being WP No. 1174(W)/2018 whereupon by an order dated 18.01.2018 this Court directed the respondents to furnish the details of the cases in connection with which the said two premises were sealed. Much later, on 05.05.2018 the Detective Department, Bidhannagar Police Commissionerate made available to the petitioners a copy of the report addressed to the Learned Chief Judicial Magistrate, Barasat, North 24 Paraganas. It transpired from the report that one Jagjit Singh was allegedly running a business of immoral traffic and prostitution from the two restaurants, among others and Baguihati Police Case No. 1491 dated 16.02.2016 was registered on such allegations. The crux of the allegations levelled in the said First Information Report were that upon source information, police raided a flat at the Tribeni Apartment, Baguihati where a prostitution racket was being run and recovered a victim girl who disclosed that she worked in one Spice Garden Bar at VIP Road, Kaikhali owned by one Jagjit Singh and there she was being exploited for sometime by a co- accused Raju Ghosh. Some other persons and the said Raju Ghosh were also arrested from the spot. After completion of investigation, a charge-sheet was submitted. Thereafter the petitioners filed an application before the Learned Court below praying for revoking of the seal on their restaurant- cum-bars namely, 'Tiash' and 'Sunset'. Such prayer was turned down by the Learned Trial Court.
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3. In CRR No. 2299/2018, the main contentions of the petitioner appears to be that the petitioner was running restaurant cum bars under the name and style Hotel Downtown at VIP Road, Kolkata and two hotels under the name and style of Spice Garden, one at VIP road,, Kolkata and the other at Chinar Park, Kolkata. The excise licence was granted in the name of one Jagjit Singh, erstwhile director of the petitioner company for the hotel Downtown and in the name of one Gursimran Singh a present director for the hotel Spice Garden. After the said premises of Hotel Downtown at VIP Road, Kolkata and Spice Garden at VIP Road, Kolkata and at Chinar Park, Kolkata were sealed by the police, the petitioner moved a writ application being WP No. 1174(W)/2018 before this Court for a direction upon the police and the excise authorities to furnish the details of the cases in connection with which the premises were sealed. After a lapse of time, the details were given. It referred to the same case in respect of which CRR No. 2117/2018 had been filed. A charge-sheet was submitted. Subsequently, the petitioner's prayer for revoking seal of the premises were turned down by the Learned Trial Court by the same order. The petitioner's further contention was that the said accused Jagjit Singh was presently neither a director nor a shareholder of the petitioner company and was in no way connected with the same.
4. Mr. Sekhar Kumar Basu, the Learned Senior Counsel appearing on behalf of the petitioner in CRR No. 2229/2018 submitted as follows. Under Section 18 of the Immoral Traffic (Prevention) Act, it is a Magistrate who, 5 after asking the owner, lessor or landlord of a premise to show cause as to why the premises should not be attached for improper user, can attach the said premises. The Court convicting a person for an offence under Section 3 or 7 of the said Act can also pass an order under Section 18(1) of the said Act. In such events, a Magistrate can direct eviction of the occupier within seven days of the passing of the order. He can also direct that before letting the premises out during the period of one year or in a case where a child or a minor was found in such premises, during a period of three years, immediately after passing of the order, the owner, lessor or landlord or his agent shall obtain the previous approval of the Magistrate. If the Magistrate finds the owner, lessor or landlord or the agent to be innocent of the improper user of the premise, he may cause to restore to the owner, lessor, landlord or agent. Since Section 18 provides for the sealing of premise used for immoral traffic, the police cannot otherwise seal such a place. The Immoral Traffic (Prevention) Act is a special law and the procedure laid down there would preclude the operation of the general provisions of the Code of Criminal Procedure as regards sealing of property. On this, reliance was placed on Vishwa Mitter vs. OP Poddar & Ors, AIR 1984 SC 5 and Nilratan Sircar vs. Laxmi Narayan Ram Nivas, AIR 1965 SC 1. Had the closure taken place as per the direction of the Learned Magistrate, it would have ended much before. Since the Investigating Agency placed its thrust on prevention of immoral traffic at the premises in question, it may safely be deduced that it wanted the premises to remain closed so as to prevent further commission of an offence as alleged and not for the purpose of investigation or for any other reason. Even if it is argued that the closure of the premises was also 6 meant for the purpose of investigation, once a charge-sheet is submitted, the purpose also goes. Besides, the prime accused Jagjit Singh was only a former director of one of the companies. The accused Jagjit Singh was in no way connected with the business run by the present petitioner.
5. Mr. Sudipta Moitra, the Learned Senior Counsel appearing on behalf of the petitioners in CRR No. 2117/2018 submitted as follows. No one attached to the present petitioners, not even an employee, was made an accused in the case in question. Not a single document was available to connect the accused Jagjit Singh with the restaurants run by the present petitioners. There was no evidence whatsoever to show that the said restaurants were used for the purpose of prostitution. Therefore, the Investigating Agency had no reason to seal the premises of the petitioner's restaurants in question. Even the report filed by the police did not justify the sealing of the premises. A clear emphasis was there on the prevention of immoral traffic. Therefore, the action could have been one under Section 18 of the Immoral Traffic (Prevention) Act. Section 18 of the said Act provided for a prior notice and also gave an outer limit for the closure. None of these were followed in the present case. Reliance was placed on a decision of the Hon'ble Apex Court pronounced in Delhi Administration vs. Ram Singh, AIR 1962 SC 63 and in A.C. Aggarwal vs. Mst. Ramkali, AIR 1968 SC 1. It was contended that the Immoral Traffic (Prevention) Act was a Code by itself. Besides, an immovable property could not be seized under the Code. On this reliance was placed on Amrit Lal Kumawaf and others vs. State of Rajasthan 7 and Anr., (1998) CRLJ 3032 (Raj) and on Mumtaj @ Behari vs. The State (Government of NCT, Delhi), 2003 CrLJ 533 (Del). It was further contended that even if there were other Penal Code offences involved, if any investigation was to be done for an offence under the Immoral Traffic (Prevention) Act, the same had to be done by a special police officer. According to the Learned Senior Counsel, the impugned order was absolutely bad in law and ought to be set aside forthwith.
6. Mr. Ranabir Roy Chowdhury, the Learned Counsel appearing on behalf of the State submitted as follows. The search and seizure conducted in the present case were absolutely legal. According to him, the prime accused Jagjit Singh was the Chairman of the group of companies which ran the illicit racket of immoral traffic and prostitution. These operations also involved other offences. In fact, two of his sons were directors in the said companies. Most often such illegal business is done by foisting other relatively less important individuals as the face while the prime conspirator acts from behind. A prima facie case was made out. In fact, a trial was going on in this case. If the seals on the restaurant-cum-bars were removed, the entire process would be jeopardised. Not only would the illegal activities restart, but such de-sealing might also lead to loss of valuable evidence and provide an opportunity to the accused to influence witnesses and tamper with evidence. The case involved not only offences under the Immoral Traffic (Prevention) Act but also serious offences under the Penal Code. Therefore, it was open to the Investigating Agency to seal the premises. Reliance was 8 placed on the case of Tapas D. Neogi vs. State of Maharashtra, (1999) 7 SCC 685 and M/S Bombay Science and Research Education Institution vs. State of Maharashtra, 2008 CrLJ 4200 (Bom) and it was contended that even an immovable property can be seized in pursuance of powers contained under Section 102 of the Code. The decisions in the cases of Ram Singh (supra) and A.C. Aggarwal (supra) were distinguishable on facts as the said cases did not apparently involve Penal Code offences in addition to the offences under the Suppression of Immoral Traffic in Women & Girls Act. Reliance was placed on Bai Radha vs. State of Gujarat, (1969) 1 SCC 43 and it was submitted that even if investigation was not done following the mandate of the Immoral Traffic (Prevention) Act, a conviction would not become bad, especially when no prejudice was found to have been caused. Reliance was also placed on order dated 13.02.2019 passed by this Court in WP No. 2821(W) of 2019 where, while dealing with the renewal of excise licence for 2018-2019 for the bar 'Tiash', this Court observed as under:
"The records made available on record demonstrates that, there is a criminal proceeding against one Jagjit Singh who is the father of one of the directors of the first petitioner. There is a finding in the order dated June 27, 2018 passed by the Learned Additional District Judge at Barasat that Jagjit Singh is a licensee/director and shareholder of the Bar-cum-Restaurants involved. About five Bar-cum-Restaurants are involved in the criminal proceeding. The first petitioner is one of them."
......
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"With respect, the petitioner is bound by the order passed by the criminal Court. As noted above, there is a strong nexus between the accused in the criminal proceedings and the directors of the first petitioner. The first petitioner is the son of the accused. Therefore, it can be necessarily inferred that, the accused in the criminal proceedings has a direct deep and pervasive control over the affairs of the first petitioner."
So it was prima facie established, that there was a connection between the prime accused Jagjit Singh and the bar-cum-restaurants. There is no illegality in the impugned order and the same should not be interfered with. On facts, Jagjit Singh, the Chairman of the Downtown Group was an accused in the case and his involvement was evident from statements of two witnesses recorded under Section 164 of the Code at pages 54 and 55 of the Case Diary. The statements of two other witnesses recorded under Section 161 of the Code at pages 83- 84 and 85-86 revealed the involvement of Downtown, Tiash, Spice Garden, Sunset Bars (i.e. the dance bars run by Jagjit Singh) for trafficking of women and prostitution. Their statements were also recorded under Section 164 Cr.PC. The statement of another witnesses recorded under Section 161 of the Code at pages 167-168 and especially the one recorded under Section 164 of the Code at pages 185-186 of the Case Diary also brought in evidence that the accused were was engaged in trafficking of women and forced prostitution in the garb of running bars cum restaurants. The statement of another witnesses at pages 143-144 also revealed that the said bars cum restaurants put the educational atmosphere and peaceful township of Baguihati area in foul and 10 polluted condition. The seized articles at pages 87 and 88 of the Case Diary supported the allegations of trafficking and prostitution.
7. I heard the submissions of the Learned Counsels appearing on behalf of the parties and perused revision petitions along with their annexures.
8. At the outset, it may be germane to mention that in the two revisional applications at hand, the petitioners only prayed for setting aside of the impugned order whereby their prayers for de-sealing of the premises in question were turned down. No prayer for quashing of proceedings was made in these applications. In any event, as per the Learned Advocates appearing on behalf of the parties, the trial of the main case had started. Therefore, the points alluded to on behalf of the appellants about the legality of the investigation would have to be agitated before the Learned Trial Court. To the extent such points are relevant to the adjudication of the present revisions, one has to remember that Ram Singh's Case (supra) dealt with the question whether offences under the Suppression of Immoral Traffic of Women & Girls Act, 1956 could be investigated by anyone other than a special police officer. But, this is distinguishable on facts as here offences under the Penal Code were also alleged, which could fairly be investigated by other police personnel. In Ram Singh's Case (supra), the Hon'ble Supreme Court held as under.....
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"1. The only point for consideration, in this appeal, by certificate granted by the High Court of judicature of Punjab, is whether a police officer, who is neither a special polling officer under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act 104 1956), hereinafter called 'the Act', nor a police officer subordinate to a special police officer, can validly investigate the offences under the Act."
....
"24. We are therefore of opinion that the special police officer is competent to investigate and that he and his assistant police officers are the only persons competent to investigate offences under the Act and that police officers not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences. The result is that this appeal by the Delhi Administration falls and is hereby dismissed."
The decision in A.C. Aggarwal's Case (supra), on the other hand delves into the issue of whether Section 18 of the Suppression of Immoral Traffic in Women & Girls Act, 1956 was ultra virus Article 14 of the Constitution of India. It was held that a Magistrate could not proceed under Section 18 of the said Act without taking action under Section 3. Here too the question of investigation into Penal Code offences did not arise. Thus, these decisions may not have a direct relevance to the litigation at hand. However, in this regard it may also be pertinent to refer to the decision relied on by the Learned Counsel for the State in Bai Radha's Case (supra) where the Hon'ble Apex Court, while dealing with the question whether a trial became illegal by reason of the search not having been conducted strictly in accordance with 12 the provisions of Section 15 of the Suppression of Immoral Traffic in Women & Girls Act, 1956, inter alia, held as under:
"In conclusion it may be observed that the investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub-sections (1) and (2) of Section 15 of the Act. The Legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving in roads on the privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the non-observance of or non-compliance with the directions contained in the aforesaid provisions. The Court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside. It may not be out of place of reiterate what was said in H.N. Rishbud and Inder Singh v. The State of Delhi, that a defect or an illegality in the investigation, however serious, has no direct bearing on the competency or the procedure relating to cognizance or trial of an offence and that whenever such a situation arises, Section 537 of the Code of Criminal Procedure is attracted and unless the irregularity or the illegality in the investigation or trial can be shown to have brought about a miscarriage of justice, the result is not affected."13
9. Another important aspect to be dealt with at the beginning is whether an immovable property can be seized and/or sealed in connection with a criminal case. In the case of Tapas D Neogi (supra) the Hon'ble Apex Court, inter alia, held as under:
"6. A plain reading of sub-section (1) of Section 102 indicates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression 'any property' and 'any offence' have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be 'property' and secondly, in respect of the said property there must have been suspicion of commission of any offence....."
....
"12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be 'property' within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code....."
10. Although the said decision in Tapas D Neogi's Case (supra) was passed in respect of seizure of a bank account, the Hon'ble Apex Court had made it clear that the word 'property' as referred to in Section 102 of the 14 Code would include any property. Relying on this decision, a Division Bench of the Hon'ble Bombay High Court in M/s Bombay Science and Research Education Institution's case (supra) held in categorical terms that all properties whether movable or immovable could be seized by police under Section 102 of the Code.
11. In view of the decisions in Tapas D Neogi's Case (supra) and M/s Bombay Science and Research Education Institution's case (supra), I am not inclined to follow the contrary decisions arrived at by the Hon'ble Rajasthan High Court and the Hon'ble Delhi High Court in Amrit Lal Kumawaf's case (supra) and Mumtaz @ Behari's case (supra), respectively. I find no reason to exclude an immovable property from the ambit of the expression any 'property' as used in Section 102 of the Code.
12. The case of the petitioners in CRR 2117/2018 that the prime accused Jagjit Singh was in no way involved in their business and the contention of the petitioner in CRR No. 2299/2018 that the said accused Jagjit Singh was no more connected with its business are all disputed questions of facts that are yet to be finally decided in the trial. On the other hand, from a plain reading of the First Information Report and the charge-sheet and from a perusal of the case diary it appears that a prima facie case is made out against the accused, not only under the provisions of the Immoral Traffic (Prevention) Act but also under very serious provisions of the Penal Code. 15 Therefore, regardless of any action taken before a Learned Magistrate in respect of Section 18 of the Immoral Traffic (Prevention) Act, nothing prevented the Investigating Agency from exercising its powers of search and seizure under Section 102 of the Code. As such, there was no legal bar on the Investigating Agency of the present case in seizing and/or sealing the properties. It is true that in the application of the Investigating Agency for sealing the properties, some emphasis was put on the prevention of such offences under the Immoral Traffic (Prevention) Act, but it appears that the sealing was also meant for the purpose of investigation. In the initial report filed by the Investigating Agency intimating about the seizure and attachment of the properties it was clearly mentioned that the said properties were sealed in the interest of investigation. In any event, the application clearly mentioned that it was in respect of a case involving Penal Code offences as well.
13. As per the initial report filed by the Investigating Agency, it appeared from the incriminating materials that the properties in question were used for trafficking of girls and prostitution and for committing heinous offences under the Penal Code. From the materials on record it was quite clear that the illegal operations were taking place at several premises in a concerted manner with the active participation of several people. When an illicit racket runs in such a organized fashion, it is quite obvious that attempts could be made to influence witnesses and tamper with evidence. In this regard the submission advanced by the Learned Counsel for the State that the entire 16 process could be jeopardised if the premises were de-sealed, is quite significant.
14. It is indeed true that there is a provision for return of articles pending investigation or trial. But, a discretion is nevertheless given to the Court about whether to release the articles seized or not. Like in all other cases, this discretion has to be exercised in a judicious manner. Therefore, in deciding whether to exercise this discretion favourably, one needs to analyse the facts and circumstances of each case. Here, the case is for instance, not for a premise being used as an office of an illegal chit-fund business or even where a murder had taken place as a one off case. In such cases, one can fairly prepare a seizure list, make an inventory, take photographs for use in the trial and release the premises. But, in the instant case it appears that the premises were allegedly used as tools for committing the crimes of illegal trafficking of girls and prostitution, among other things. Such offences were allegedly carried on in or from these premises day in and day out. The perpetrators of the crimes purportedly acted in tandem as a criminal cartel or gang. The apprehension of the Learned Counsel for the State is quite justified that if the premises were released, not only would the illegal activities start again, but the offenders, as organised criminals, would have a greater opportunity to influence witnesses and tamper with evidence. The above referred special circumstances of this case appear to be sufficient to dissuade one from exercising the power to return the property pending trial at this stage.
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15. Furthermore, from the impugned order it appears that the Learned Court below had rejected the prayer for de-sealing of the restaurants at that stage. The impugned order was passed after going through the applications of the petitioners and the objections by the State and upon perusing relevant materials.
16. In view of the above discussions, I do not find any illegality in the impugned order refusing to de-seal the properties in question.
17. Accordingly, the revisional applications are dismissed.
18. However, the petitioners are not precluded from filing fresh applications for de-sealing of the properties in question in the event of any substantial change in circumstance including an inordinate delay in the conclusion of the trial for any fault of the prosecution.
19. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J)