Delhi District Court
State vs . Simran & Ors. Signed By on 4 April, 2018
1
IN THE COURT OF SH. ANUBHAV JAIN, METROPOLITAN
MAGISTRATE, SOUTH-EAST, SAKET COURTS, NEW DELHI.
FIR No. 82/04
PS - GK
U/s. 4/5/8 ITP Act Digitally
State Vs. Simran & Ors. signed by
ANUBHAV
JUDGMENT ANUBHAV JAIN
A. SL. NO. OF THE CASE : 271/2/12 JAIN Date:
2018.04.04
21:41:05
B. DATE OF INSTITUTION : 15.02.2007 +0530
C. DATE OF OFFENCE : 07.04.2004
D. NAME OF THE : ACP D.R. Birdhy
COMPLAINANT : Crime Branch
E. NAME OF THE ACCUSED : 1. Simran
PERSONS (PO vide order dt. 24.02.2015)
2. Dinesh
(PO vide order dt. 01.10.2014)
3. Adil
(PO vide order dt. 13.07.2010)
4. Jai Singh
S/o Sh. Daya Ram
5. Seema
(PO vide order dt. 13.07.2010)
6. Sakina Bano
(Convicted vide order dt.
21.11.2012)
7. Shalu
(PO vide order dt. 13.07.2010)
8. Manju
(PO vide order dt. 13.07.2010)
9. Manjeet
(PO vide order dt. 13.07.2010)
2
10. Pooja
(PO vide order dt. 13.07.2010)
11. Sunita
(Convicted vide order dt.
21.11.2012)
F. OFFENCE
COMPLAINED OF : U/s 4/5/8 ITP Act
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 04.04.2018
Brief Statement of Reasons for Decision :
1.The present accused namely Jai Singh is produced before the court to stand trial for the offence u/s 4/5/8 ITP Act.
2. In brief, facts of the case of the prosecution are that on 07.04.2004 Sh. D.R. Birdhi, ACP SIT Crime Branch got registered an FIR stating therein that he was informed by a secret informer that some people had given advertisement in Hindustan Times paper pertaining to body massage bearing mobile no. 9818168477 and 9810629431, however under the garb of the same they are carrying out a prostitution racket. The said information was got verified through SI V.K.P. Singh who called at the said given number and informed the complainant, that on the mobile no. 9818168477 one person by name of Jai Singh received the call and on the mobile no. 9810629431 one person by name of Dinesh Sharma received a call. It is further stated that both of them had called the caller at hotel Ganga Azyor, E-58, GK-1 at 6.30 pm for supplying of girls. It is further stated that thereafter complainant / ACP prepared a raiding party comprising of Insp. Ashwani Kumar, SI V.K.P. Singh, SI Mahender Lal, W/Ct. Suresh Malik, W/Ct. Anita, HC Hari Om, Ct. Pramod Kumar, Ct. Om Prakash and Ct. Satender and at 6.00 pm the complainant alongwith raiding party reached the spot where ACP asked the public persons to join the investigation, however 3 none of them agreed. It is further stated that ACP made SI VKP Singh as decoy customer and handed over him 4 notes of denomination 500/- each bearing no. 2ABJ35882, OEH498287, AU65J545, ODL256833 and asked him to use the said money for the purpose of prostitution and the ACP has further appointed HC Hari Om as shadow witness and asked him to signal the raiding party on completion of deal. It is further stated that at about 6.35 pm one Esteem car bearing no. DL4CE0770 stop in front of Ganga Azyor hotel, GK-1 from which one person alongwith 4 girls deboarded and after sometime one Ambassador car bearing no. DL1Y6772 reached the spot on which two men and 4 girls reached the spot. It is further stated that the decoy customer struck the deal and at about 6.40 pm shadow witness signalled the raiding party upon which the ACP alongwith raiding party reached the spot and apprehended 3 persons by name of Dinesh Kumar, Jai Singh and Adil and 8 girls by name of Sunita, Pooja, Simran, Manju, Manjit, Shalu, Shakina Bano and Sunita. It is further stated that thereafter SI V.K.P. Singh informed the ACP that the accused person namely Dinesh is involved in prostitution racket and produced girls namely Seema, Sunita, Shakina Bano and Shalu for the purpose of prostitution and that one girl asked for Rs. 2000/-. He further stated that accused Jai Singh and Adil are involved in prostitution racket and had produced girl namely Pooja, Simran, Manjeet and Manju and asked for Rs. 2000/- and asked him to pick a girl. It is further stated that all the said girls tried to allure him by making indecent gestures. That thereafter SI VKP Singh pick a girl namely Seema and gave two notes of denomination 500/- bearing no. ODL256833 & OAU65J545 to accused Dinesh. He further choses another girl namely Pooja and gave two notes of denomination 500/- each bearing no. OEH498287 & 2ABJ35882 to accused Jai Singh. It is further stated that accused Jai Singh gave one note of Rs. 500/- to accused Aadil and it was further negotiated that remaining amount of Rs. 1,000/- each shall be paid after the completion of job. It is further stated that shadow witness HC Hari Om corroborated the version of SI VKP Singh and ACP further enquired from all the 4 accused persons individually and all of the said accused persons admit their involvement in prostitution racket. That thereafter ACP conducted personal search upon accused Dinesh upon which two notes of denomination 500/- were recovered from the right pocket of his pant bearing no. ODL256833 & OAU65J545 and the said notes were kept in an envelope sealed with the seal of 'VKPS'. That thereafter personal search of accused Jai Singh was conducted upon which one note of Rs. 500/- was recovered from the left pocket of his shirt bearing no. 2ABJ35882 and one note of Rs. 500/- bearing no. OEH498287 was recovered from the personal search of accused Adil from the right pocket of his pant and the said notes were kept in a separate envelopes and sealed with the seal of 'VKPS'.
Thereafter FIR u/s 4/5/8 ot ITP Act was registered against the abovesaid accused persons and seizure memo was prepared. Thereafter IO prepared the site plan and arrest the abovesaid accused persons and recorded their disclosure statement. After completion of investigation charge-sheet was filed before the court.
3. It is pertinent to state in here that accused Aadil, Seema, Shakina Bano, Shalu, Manju, Manjit and Pooja were declared as PO by Ld. Predecessor Court vide order dt. 13.07.2010 after completion of proceedings u/s 82 CrPC against them. It is pertinent to state in here that accused Shakina Bano is appeared before the court thereafter and Ld. Predecessor court vide order dt. 21.11.2012 convicted accused Sunita and Accused Shakina Bano on their plea of guilt u/s 8 of ITP Act. Accused Dinesh and accused Jai Singh were charged u/s 4/5 of ITP Act on 21.11.2012 to which they plead not guilty and claim trial. It is further pertinent to state in here that accused Dinesh Kumar failed to appear before the court and process u/s 82 CrPC was issued against him and he was declared PO by Ld. Predecessor Court vide order dt. 01.10.2014. It is further pertinent to state in here 5 that the accused Simran was declared PO by Ld. Predecessor Court vide order dt. 24.02.2015.
4. Prosecution in order to prove its case has examined the following witnesses:
4.1 PW-1 HC Mahender Singh proved the FIR Ex. PW1/A. 4.2 PW-2 SI Harion deposed that on 07.04.2004, he was posted as HC at SIT Crime Branch, Amar Colony, New Delhi and on that day at around 2:00 pm, one secret informer informed ACP D.R Birdhi regarding Human Trafficking. He further deposed that ACP D.R Birdhi informed SI V.K.P.S regarding the same and directed him to conduct a inquiry and ACP Birdhi handed over the cutting of a news paper in which an advertisement regarding the body massage was given upon which SI V.K.P.S called on the contact numbers given in the said advertisement and informed the ACP Birdhi regarding the appointment fixed for 6:30 pm, on the same day. He further deposed that at 6:00 pm, ACP Birdhi prepared a raiding team including him, Inspector Ashwani Kumar, SI V.K.P.S, SI Mahender Lal, W/HC Suresh Malik and W/Ct. Anita, Ct. Parmod, Ct. Satyender and Ct. Om Prakash and they reached at E-58, Hotel Ganga Azyor, G.K-I, New Delhi at 6:30 pm. He further deposed that they stood on the opposite side of the hotel and ACP Birdhi asked some public persons to join the investigating but none agreed. He further deposed that ACP gave four notes of Rs. 500/- each to SI V.K.P.S and prepared a handing over memo regarding the same and SI V.K.P.S became decoy customer and he became shadow witness. He further deposed that one car came there at 6:35 pm, bearing registration no. DL-4CE-0770, in which one male person and four females were sitting and person whose name revealed as Dinesh presented the four girls to SI V.K.P.S. He further deposed that in the meantime, one ambassador car also reached there bearing registration no. DL-1Y-
6227, in which 2 male and 4 female were sitting and SI V.K.P.S selected one girl 6 out of the four girls sitting in Esteem car and one girl sitting in ambassador. That person namely Dinesh demanded Rs. 2,000/- for one girl. SI V.K.P.S handed over Rs.1,000/- (Rs.2,000 in total) for each girl and remaining Rs.2,000/- were supposed to be given after the services. He further deposed that at that time, both girls who were selected were making obscene gesture. He further deposed that after seeing that the deal was done, he gave hint to the raiding team by rubbing his hand on his head and thereafter, all the team members who were waiting for the hint came forward and apprehended all the persons. He further deposed that he told the deal to ACP Birdhi and thereafter, ACP Birdhi conducted the personal search of all the male persons i.e accused and on personal search of accused Dinesh ACP Birdhi found two notes of Rs.500/- from his right pocket of his pant and Rs.500/- were recovered from another accused namely Jai Singh from his shirt, Rs.500/- were recovered from the front pocket of pant of accused Aadil. He further deposed that all the recovered notes were seized in a pullanda and sealed with the seal of V.K.P.S and ACP Birdhi prepared a rukka and handed over the same to Ct. Om Prakash at 9:15 pm, for getting the case registered. He further deposed that ACP Birdhi informed SI Ram Bir telephonically and called him at the spot who reached the spot at 9:25 pm and prepared the site plan and started his further investigation. He further deposed that at around 10:30 pm, Ct. Om Prakash came back to the spot and handed over the original rukka and copy of the FIR to SI Ram Bir and all the accused persons were arrested. He further deposed that thereafter, he recorded the statement of all police officials u/s 161 Cr.P.C and Thereafter, all the accused persons were put behind the lock up. He correctly identified the accused Dinesh in the court.
4.3 PW-3 ACP D.R. Birdi deposed that on 07.04.2004, he was posted as ACP at SIT Crime Branch, Amar Colony, New Delhi and on that day at around 2:00 pm, one secret informer informed him regarding prostitution and showed him one cutting of newspaper in which two phone numbers were advertised regarding the services providing for body massage. He further deposed that he 7 informed SI V.K.P.S regarding the same and directed him to conduct a inquiry and also handed over the cutting of a newspaper in which an advertisement regarding the body massage was given. He further deposed that SI V.K.P.S called on the contact numbers given in the said advertisement and informed him regarding the appointment fixed at 6:30 pm, on the same day. SI V.K.P.S had conversation with accused Dinesh and Jai Singh. He further deposed that thereafter, he prepared a raiding team including Inspector Ashwani Kumar, SI V.K.P.S, SI Mahender Lal, HC Hari Om, W/HC Suresh Malik and police staff members and they reached at Hotel Ganga Azyor, G.K at around 6:00pm where he asked some public persons to join the investigation but none agreed and left the spot. He further deposed that he checked SI V.K.P.S and left him empty with the wearing clothes and thereafter handed over Rs.2,000/- (four notes of Rs.500/-) to SI V.K.P.S to deal with the accused persons. He further deposed that he appointed HC Hari Om as shadow witness and asked him to point out when the deal got done. He further deposed that at around 6:35 pm, one Esteem car in which one male and 4 girls were sitting and one another ambassador car reached there in which two male and four girls were sitting. He further deposed that after sometime, the shadow witness made the hint and they apprehended the accused persons. He further deposed that SI V.K.P.S informed him that the deal was done for Rs.2,000/- for each girl and in the first car one person namely Dinesh (accused) was sitting with the four girls and in the second car, accused Jai Singh and Aadil were sitting with four girls and they also demanded Rs.2,000/- for each girl and all the eight girls made obscene gesture towards him. He further deposed that SI V.K.P.S. further informed that he gave two notes of Rs.500/- to accused Dinesh in advance and gave two notes of Rs.500/- to accused Jai Singh and selected one girl for Rs.2,000/- and the remaining amount would be given after the services and that accused Jai Singh gave Rs.500/- to accused Aadil. He further deposed that he interrogated all the accused persons and they revealed that they were involved in the profession of prostitution and conducted personal search of 8 accused Dinesh and found two notes of Rs.500/- vide recovery memo Ex.PW3/A. He further deposed that he put those notes in an envelope and sealed the same with the seal of V.K.P.S. He further deposed that he conducted personal search of accused Jai Singh and found one note of Rs.500/- from his left pocket of wearing shirt, vide recovery memo Ex.PW3/B. He further deposed that he conducted personal search of accused Aadil and found one note of Rs.500/- from the right pocket of his wearing pant vide recovery memo Ex.PW3/C and put those notes in different envelops and sealed the same with the seal of V.K.P.S. He further deposed that he prepared the rukka Ex.PW3/D and handed over the same to Ct. Om Prakash for getting the case registered and directed SI Ram Bir to conduct further investigation. He correctly identified accused Dinesh in Court.
4.4 PW-4 Inspector V.K.P. Singh deposed that on 07.04.2004, he was posted at SIT section, crime branch and on that day, ACP D.R Birdi informed him that he had got some information that some persons are engaged in the business of prostitution after giving advertisement for massage in Hindustan Times, News Paper. He further deposed that ACP gave him two mobile numbers and asked him to verify the information and after making the call on both the numbers, he confirmed that persons using both the mobile numbers are engaged in prostitution. He further stated that on one of the mobile number, he contacted one Dinesh and on the other number he contacted one Jai Singh and both of them agreed to provide the girls for purpose of prostitution at 6:30 pm at Ganga Azure hotel, E-58, G.K-I, New Delhi. He further deposed that after the confirmation of information ACP D.R Birdi constituted a raiding party comprising him, SI Mahender Lal, Inspector Ashwani Kumar, W/HC Suresh Malik, Ct. Anita, HC Hari Om, Ct. OM Prakash, Ct. Pramod and Ct. Satender and as per the instructions of ACP Sh. D.R Birdi, all the members of raiding party reached near Ganga Azure hotel, G.K-I, New Delhi at about 06:15 pm, where Sh. D.R Birdi asked 5-6 public persons to join the investigation however none agreed. He further deposed that Sh. D.R Birdi deputed him as decoy customer to strike the 9 deal and gave him four currency notes of Rs.500/- denominations vide handing over memo Ex.PW4/A and HC Hari Om became the shadow witness to observe the deal. He further deposed that accused persons reached there at about 6:30 pm in two different car i.e ambassador, one male person namely Dinesh and four females came out from the Esteem car and Two males and four females came out from ambassador car, the name of those persons revealed as Jai Singh and Adil. He further deposed that accused Dinesh offered four girls and asked to select any of them for prostitution purpose and demanded Rs.2,000/- for each girl. He stated that all the four girls tried to solicit by making different gestures and out of them, he select one girl namely Seema and gave two currency notes of Rs.500/- denomination to accused Dinesh which he kept in his pocket. He further deposed that accused Jai Singh also offered four girls and asked to select any of them for prostitution purpose and demanded Rs.2,000/- for each girl out of which he selected one girl namely Pooja and gave two currency notes of Rs.500/- denomination to accused Jai Singh out of which he gave one currency note of Rs.500/- and another he kept in his pocket. He further deposed that after the completion of deal, shadow witness HC Hari Om gave a pre-decided signal to other members of raiding party and ACP D.R Birdi and other members of the raiding party immediately reached at the spot and over powered the accused persons. He further stated that Sh. D.R Birdi, got conducted the personal search of accused persons namely Dinesh, Jai Singh and Adil and during the personal search of accused Dinesh, two currency notes of Rs.500/- each were recovered and during the personal search of accused Adil one currency note of Rs.500/- was recovered and during the personal search of accused Jai Singh one currency note of Rs. 500/- was recovered. He further deposed that ACP D.R Birdi interrogated the accused persons to verify their involvement and got prepared the rukka and handed over the same to Ct. Om Prakash for getting the case registered and called the SI Rambir to investigate the case further. He further deposed that ACP D.R Birdi also handed over the handing over memo and seizure memo and three 10 envelopes containing the currency notes to SI Rambir and IO inspected the place of occurrence and prepared the site plan, interrogated the accused persons separately and arrested them. He further identified the accused and case property in the court.
4.5 PW-5 Rajender Kumar, deposed that in December 2003, one person alongwith one lady and a child approached him to take ground floor of his premises on rent and he gave the said property on rent to them. He further deposed that their relatives used to visit them in the said premises and that they left the premises after 2-3 months without informing him and they put their lock on the said premises. Said witness was cross examined by Ld. APP for the state as he resiled from his statement.
4.6 PW-6 W/HC Anita deposed that on 07.04.2004, he was posted as constable at SIT Crime Branch, Amar Colony and on that day, ACP Daulat Birdi received an information regarding running of prostitution racket at Hotel Ganga Azhar, E-58, G.K, New Delhi and ACP prepared raiding party and at about 06:00 pm, he alongwith ACP, Inspector Ashwani, SI V.K.P.S, SI Mahender Lal, W/HC. Suresh, HC Hari Om, Ct. Pramod, Ct. Satender Kumar and Ct. OM Prakash reached at the spot. He further deposed that on reaching there ACP talked with some public persons to join the investigation however none agreed. He further stated that at about 06:30 pm, two vehicles i.e. Esteem Car bearing registration no. DL-4CE-0770 having one boy with four girls and the other vehicle bearing registration DL-1Y-6227 having two boys and four girls came at the spot and SI V.K.P.S talked with them and informed/signaled ACP. He further deposed that ACP called all the police persons immediately and with the help of W/HC Suresh and searched all the girls which were arrested vide memos Ex.PW6/A to Ex.PW6/K and IO also prepared the seizure memos Ex.PW6/A1 to Ex.PW6/A8. He correctly identified the accused in court.
114.7 PW-7 SI Rambir Singh deposed that on 07.04.2004, he was posted as SIT Crime Branch as SI and on that day, he was informed by ACP D.R Birdhi that ACP has raided a prostitution racket near E-58, Ganga Azur Hotel, G.K-I, New Delhi and after receiving the information, he went to the abovesaid address at about 09:25-09:30 pm where he met with the raiding party and they handed over three sealed envelopes sealed with the seal of V.K.P.S and informed him that the said envelopes contain Rs.500/- currency notes and handed to him three male accused persons namely Dinesh, Jai Singh and Aadil and 8 female accused persons. He further deposed that they handed over him the investigation of FIR and he recorded the statement of ACP. He further deposed that at the instance of SI V.K.P.S Yadav, he prepared the site plan Ex.PW7/A, and he interrogated the accused persons separately and arrested them by preparing the arrest memo Ex.PW6/A to Ex.PW6/K. He further deposed that he personally carried out the personal search of all the male accused persons and prepared the search/seizure memo Ex.PW7/B to Ex.PW7/D and personal search/seizure memos of eight female accused persons was carried out by the W/HC Anita vide Ex.PW6/A1 to Ex.PW6/A8. He further deposed that during the personal search of accused Dinesh one mobile phone was recovered which was used for the deal and which contains the airtel sim, and same seized vide seizure memo Ex.PW7/E and two vehicles which i.e. Esteem Car bearing registration no. DL-4CE-0770 and ambassador car bearing registration no. DL-1Y-6227 were seized vide seizure memo Ex.PW7/F and Ex.PW7/G. He further deposed that he prepared disclosure statement of the accused Jai Singh and Aadil Ex.PW7/H and Ex.PW7/I and he recorded the statements of witnesses and took them for medical examination at AIIMS hospital and thereafter sent the accused to the lock up and PS-Lajpat Nagar. He further deposed that during the course of investigation, he also collected the call details of numbers used by the accused for this deal from the Bharti Cellular Airtel Ltd. Mark 'A'. He further identified the accused persons in court.
124.8 PW-8 Surender Kumar, Nodal Officer, Bharti Airtel Ltd. deposed that he can not bring the call detail record of mobile phone nos.9818168477 and 9810629431 for the period 01.04.2004 to 14.04.2004 as same is not available. He further deposed that as per the guidelines of Department of Telly Communication, they preserve call detail record of mobile phones for only one year.
4.9 PW-9 Inspector Mahender Lal deposed that on 07.04.2004, he was posted as SI at SIT section Crime Branch, PP-Amar Colony and on that day, ACP D.R Birdi told him, Inspector Ashwani Jaiswal, HC Hariom, W/HC Suresh Malik, W/Ct. Anita, Ct. Pramod, Ct. Satender and Ct. Om Prakash that some persons were advertising in newspaper for providing massage service and they were also involved in prostitution business and SI V.K.P.S Yadav also verified the abovesaid information and he talked on mobile number and struck a deal with the receiver of the call for getting girl for prostitution. He further deposed that on the instructions of D.R Birdi, a raiding party was formed comprising of himself, Inspector Ashwani Jaiswal, HC Hariom, W/HC Suresh Malik, W/Ct. Anita, Ct. Pramod, Ct. Satender and Ct. Om Prakash and they all departed in two private vehicles towards Hotel Ganga Azure G.K-I, New Delhi and reached there at around 06:00 pm. He further deposed that ACP D.R Birdi requested few public persons to join the raiding party but none agreed and SI V.K.P.S Yadav was made decoy customer and HC Hari Om was made a shadow witness. He further deposed that ACP D.R Birdi gave four currency notes of the denomination of Rs. 500/- to SI V.K.P.S Yadav vide handing over memo already Ex. PW4/A, and HC Hari Om was instructed to give signal after striking the deal. He further deposed that at around 06:35 pm an Esteem car bearing registration no. DL-4CE-0770 came in front of Hotel Ganga Azure, having four girls and one male person and one ambassador bearing registration no. DL-1Y-6227 having four girls and two male persons. He further deposed that SI.V.K.P.S Yadav and HC Hari Om went near the cars and talked with the occupants of the car and HC Hari Om gave a signal upon which all members of the raiding party came near the cars. That SI 13 V.K.P.S Yadav told raiding party that he had talked with the driver of the abovesaid Esteem car namely Dinesh and Dinesh told him that it will cost Rs.2,000/- for a girl and he gave Rs.1,000/- as advance to Dinesh. He further deposed that SI V.K.P.S Yadav told that he had given Rs.1,000/- as advance to accused Jai Singh and Jai Singh had given Rs.500/- out of Rs.1,000/- to his associate namely Adil. He further deposed that ACP D.R Birdi interrogated all the male and females persons separately and formal search of all the abovesaid three male members were conducted by ACP D.R Birdi and Two currency notes of Rs.500/- were recovered from Dinesh and one currency note of Rs.500/- each was recovered from the possession of accused Jai Singh and Adil. He further deposed that all the currency notes were seized after keeping it in an envelope separately and duly sealed with the seal of V.K.P.S vide seizure memos Ex.PW3/A, Ex.PW3/B and Ex.PW3/C. He further deposed that ACP D.R Birdi prepared the rukka and gave it to Ct. Om Prakash and sent him to PS G.K-I for registration of FIR and SI Rambir came at the spot and arrested all the accused persons and their personal search was conducted vide memos Ex.PW6/A to Ex.PW6/K and Ex.PW7/B to Ex.PW7/D and Ex.PW4/A1 to Ex.PW4/A8 and disclosure statement of male accused persons were recorded. He correctly identified the accused persons and case property in the court.
It is pertinent to state in here that PW-2 SI Hari Om in his testimony dt. 21.04.2016 and PW-3 in his testimony dt. 21.04.2016 are stated to have idenfied accused Dinesh correctly in the court. As stated above, accused Dinesh was already declared absconder by Ld. Predecessor Court vide order dt. 01.10.2014 and thereafter accused Dinesh never appeared before the court and the trial was conducted qua accused Jai Singh. It is further stated in the said testimony that the accused was correctly identified by the witness. As such it appears that due to typographical mistake accused Dinesh is mentioned instead of accused Jai Singh.
145. After completion of prosecution evidence, statement of accused under section 313 CrPC was recorded on 17.08.2017 wherein accused Jai Singh denied all the allegations as levelled against him by the prosecution. Accused in support of his defence has examined following witnesses:
5.1 DW-1 Pooranmal Yadav deposed that he used to run Balaji Taxi Services from 1995 to 2005 and he knew Jai Singh from 2000 as he use to drive his car bearing no. DL-1Y-6227 which was in the name of Balaji Taxi Services.
He further deposed that there was never any complaint against Jai Singh regarding driving work and profession. He further stated that he never make any statement to the police. He further deposed that accused Jai Singh is driver now a days and right now, he can not tell accused is driving his own car or not, however, accused only works as a driver. He further stated that the accused use to work with Monu Taxi stand for picking the passengers.
5.2 DW-2 Dharamvir Yadav deposed that he alongwith accused Jai Singh use to work at Monu Taxi stand as a driver from 2002 to 2005 and there was no any complaint regarding work and driving in part of Jai Singh at Monu Taxi stand.
5.3 DW-3 Maan Singh deposed that he used to drive taxi at Monu Taxi stand, Pushp Vihar, Sec-4, Near Mata Mandir and he worked there from 2000 to 2007. He further deposed that in 1998 he learnt to drive vehicle from accused when accused used to work at Katwaria Sarai, Taxi stand. He further deposed that at Monu Taxi stand he worked alongwith accused Jai Singh from 2000 to 2007 and he never heard about any fight or altercation with any person during the period they work together.
5.4 DW-4 Chattar Singh deposed that in the month of January - February he started working with Monu Taxi stand and he worked there for about one and a half years. He further stated that there were 5 taxis in Monu Taxi stand and Jai Singh used to drive his own car at Monu Taxi stand at that time. He further 15 deposed that Jai Singh was driving his taxi at Monu Taxi stand prior to him and that accused left Monu taxi stand in the year 2005. He further deposed that somebody informed him that some passengers were taken by Jai Singh to hotel and thereafter he was arrested by the police. He further deposed that the passenger hire Jai Singh at Monu Taxi stand only.
5.5 DW-5 Sumer Singh deposed that From 2001 he was operating Monu Taxi Stand and same was registered in MCD and approved by ACP office. He further deposed that accused Jai Singh was also used to work at his taxi stand. He further deposed that at that time he used to charge Rs. 500/- monthly from the owner of the car. People used to hire the taxi from the stand as per number. Taxi was hired from the stand only at the day of incident. We never received any complaint about the accused Jai Singh. Jai Singh worked in my taxi stand from year 2001 for about 4-5 years. He further stated that he came to know about the incident on the next day morning when the car does not return back.
6. I heard the learn'd APP for the state and learned Council for the accused person and perused the case file carefully.
7. It is settled proposition of law that burden lies upon the prosecution to prove its own case. It is the case of prosecution that:
a) ACP/IO D.R. Birdi received a secret information regarding running of prostitution racket
b) Said ACP/IO got the information verified by Inspector V.K.P. Singh who contacted at the given no. and contacted accused Dinesh Singh on one given number and accused Jai Singh on the other number and both agreed to provid e girls for prostitution at 6:30 pm at Ganga Azure Hotel, E-58, G.K.-I, New Delhi.16
c) That ACP prepared a raiding team comprising of Inspector V.K.P Singh, SI Mahender Lal, Inspector Ashwini Kumar, W/HC Suresh Malik, Ct. Anita, HC Hari Om, Ct. Om Prakash, Ct. Pramod and Ct. Satender and all members of raiding party reached near Ganga Azure Hotel at 6.15 pm.
d) That HC Hari Om was made as shadow witness and Inspector V.K.P. Singh as decoy costumer and ACP hand over 4 notes of denomination 500 to Inspector V.K.P. Singh bearing signature of Inspector V.K.P. Singh.
e) That accused persons arrived at spot in two different vehicle and accused Dinesh with 4 females were present in one car and accused Dinesh offered the said girls to decoy costumer, of which decoy costumer pick up girl Seema and handed over 2 notes of denomination 500/- to accused Dinesh which he kept in his pocket.
f) That Accused Jai Singh and Adil along with 4 other girls were present in other car and accused Jai Singh present 4 girls of which decoy costumer pick up girl Pooja and handed over 2 notes of denomination 500/- to accused Jai Singh who handed over one note to Pooja and kept one note with him.
g) That on the signal of shadow witness, raiding party apprehended the accused persons and recovered the notes from their possession lodged the FIR.
8. It is argued by Ld. APP for the state that all the members of raiding party corroborated the case of the prosecution and as such prosecution has able to prove beyond reasonable doubt that accused persons have committed the offence punishable under Immoral Traffiking Act.
9. On the other hand, counsel for the accused argued that accused was merely a driver and has no concern at all with the said prostitution racket and he has been falsely implicated in the present case.
1710. In the present case in hand, the allegations against accused Jai Singh is that he was found inducing and influencing girls for the purpose of prostitution and for the same, they received a sum of Rs. 1,000/- from the decoy customer namely Inspector V.K.P. Singh.
Before proceeding further with the present case on merits, it would be pertinent to state in here relevant provisions of Immoral Trafficking Prevention Act, 1956 as well as law with regard to the same.
2 [(f) "prostitution" means the sexual exploitation or abuse of persons for commercial purpose, and the expression "prostitute" shall be construed accordingly;]
4. Punishment for living on the earnings of prostitution.--
(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of 1[any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both 2[and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years].
3[(2) where any person over the age of eighteen years is proved--
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to 18 show that such person is aiding, abetting or compelling his prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-
section (1).
5. Procuring, inducing or taking 1[person] for the sake of prostitution.-- (1) Any person who--
(a) procures or attempts to procure a 2[person] whether with or without his consent, for the purpose of prostitution; or
(b) induces a 3[person] to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel;
(c) takes attempts to take a 4[person] or causes a 5[person] to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a 6[person] to carry on prostitution;
7[shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
19Provided that if the person in respect of whom an offence committed under this sub-section,--
(i) is a child, the punishment provided under this sub-
section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub- section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;] (2) 8[. . . . . . .] (3) An offence under this section shall be triable--
(a) in the place from which a 9[person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such 10[person] is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
11. In State v. Bashir Ahmed, 1983 SCC OnLine Del 137 while dealing with similar facts as in the present case, it was observed by Hon'ble High Court of Delhi:
5. Morals and law are not synonymous. As soon as law enters the sphere of morals, its construction and implementation both seem to be fraught with difficulties.
One such law is this legislation relating to suppression of prostitution. Whatever be its origins and reason for its survival, be they biological, economical, social or psychological, prostitution is a practice as old as civilisation. It even came to be associated with devotion 20 and dedication to gods, priests and temples. At one time courtesans carved for themselves an accepted niche in society nearing respectability. Still later it came to be protected, licensed and regulated by law. In spite of puritan fervour it is difficult to totally eradicate this ancient practice unless the society guarantees to supply suitable employment and more rigorous its suppression is, more defiantly does it emerge overtly and covertly in other sophisticated forms. In general there is universal agreement that the practice of nonmerital sex as a profession is degrading to the dignity of mankind, of women in particular. In pursuance of ratification by India of the International Convention of the suppression of traffic in persons and of the exploitation of the prostitution by others, signed in New York in 1950 on May 9, the Act was enacted. One cannot fail to note that it primarily punishes miserable and helpless women who on account of circumstances are largely driven to live by this degrading trade. And one may pause to ask legitimately why not men except when he supplies her for the purpose be liable to punishment like her? That is one reason why the provisions of the Act should be strictly construed against prosecution.
6. Prostitution has been defined as follows:
"2. (f). 'prostitution' means the act of a female offering her body for promiscuous sexual intercouse for hire, whether in money or in kind, and whether offered immediately or otherwise, and the expression 'prostitute' shall be construed accordingly."
7. It was urged that what the Act seeks to do is not to stop the profession or trade of a prostitute altogether: Shama Bai v. State of Uttar Pradesh, AIR 1959 All. 57, and imposes reasonable restrictions on it.
MC Malerkotla v. Mushtaq, AIR 1960 Punjab 18. What it 21 seeks to prohibit is the act of a common prostitute and, therefore, a single act of offer cannot amount to an offer for purposes of promiscuous intercourse. Promiscuity in prostitution means indiscriminate bartering of sex favours without any emotional attachment and for monetary considerations. In re Ratnamala, AIR 1962 Mad. 31, and Bai Shanta v. State of Gujarat, AIR 1967 Gujarat 211, it was pointed out that the purpose of the Act is not to render prostitution per se a criminal offence, but it is to inhibit or abolish commercialised vice as an organised means of living. So In re Kamala, AIR 1966 Madras 312, it was held that merely to indulge in some flirtation with a stranger, or to behave in such a way as to attract the attention of persons of the opposite sex, may be regrettable or immodest, but per se, it does not amount to any offence under the Act. It excludes a permanently kept concubine or a women taken without paying any consideration. The entire scheme behind the Act is not the proof of a single incident of prostitution or of the activities of a prostitute. There must be indiscriminate sexuality requiring more than one customer: In re Devakumar, (1972) 1 M.L.J. 200, and Bai Shanta (supra). In re Dhanalalcshmi1974 Cri. L.J. 61, it was observed that the phrase 'for purposes of prostitution' postulates plurality of instances of prostitution. A single instance would not suffice for the purpose of prostitution. But plural and indiscriminate sexuality can be inferred from the facts and surrounding circumstances of the case and it is not necessary that the evidence of more than one customer of the prostitute should be adduced, vide T. Jacob v. Stats of Kerala, 1971 Cri. L.J. 952, and Krishnamurthy @ Tailor Krishnan v. Public Prosecutor, Madras, 1967 Cri. L.J. 544, and Devkumar (supra). Promiscuity lies in an intentional indifference in the selection of parties as long as they pay. The relationship is usually marked by brevity and inside contempt for each other. Mere offer for such promiscuous 22 sex, in or near a public place will be an offence under Section 8 of the Act. If the facts alleged could be proved, then certainly the act complained of was an act for purposes of prostitution in this case.
8. What is then the evidence that prosecution has collected? It relies solely upon the statement of the accused themselves. Two questions in this regard have been raised, first whether what they did was in a public place and the second and more important one, whether the statements could be read in evidence against the accused.
9. .........
10. As respects the second question, the learned Magistrate discarded the statements as confessions made to a police officer. Confession is not defined in the Evidence Act. But a 'confession' is not a statement by an accused 'suggesting the inference that he committed' the crime. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession. A confession must either admit in terms, the offence, or at any rate substantially all the facts which constitute the offence: Pakala Narayana Swami v. Emperor, AIR 1939 PC.
47. Now, the solicitation made by the accused to the police officer was not a confession made to him of an offence but was an offence committed in relation to a person who happened to be a police officer. Confession is always of past events. It cannot, therefore, be said that whatever was said by the accused to the police officer concerned was a confession, and inadmissible under Section 25 of the Evidence Act. But, it appears to me the said statement of the accused having been made during investigation is excluded from evidence under Section 162 Cr. P.C. with reference to a trap laid by the Anti-Corruption police, it was held in Maha Singh v. State (Delhi Admn.), (1976) 1 SCC 644 :
23AIR 1976 SC 449, that where the Inspector recorded the complaint, arranged the raid by noting each step taken thereafter in a regular manner, later on forwarded the complaint for formal registration of the case under Section 154, Cr. P.C. at the Police Station, and whatever he did in order to detect the accused while taking the bribe, all that came within the term 'investigation' under Section 2(h) of the Code of Criminal Procedure because investigation had commenced on recording by him of the complainant's statement disclosing a cognisable offence. Investigation may start without information or without reducing the same in writing unde'r Section 154 Cr. P.C.: State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221. In this case also investigation was commenced when the police officer got the information and set the trap. The statement of the accused to the decoy police constable was, therefore, inadmissible under Section 162 Cr. P.C. The learned counsel defending the accused also attacked the employment of a police officer as a decoy. "It cannot be too strongly emphasised that it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected".: Bramnan v. Peek, (1947) 2 All E.R. 572 at 583- 584, approved in Kamalabai v. State of Maharashtra, AIR 1972 SC 1189. I am in agreement with the criticism made in this regard. It is in the interest of the prosecution not to use a police officer as a decoy. These prosecutions have failed because of such use.
12. Further in Renu Bansal v. U.T Chandigarh 2009 SCC OnLine P&H 4631, on the similar facts it was observed by Hon'ble high Court of Punjab and Haryana:
15. Now putting the facts of the present case on parameters of the aforesaid interpretations, I am inclined to hold that facts and circumstances prevailing over the case do not 24 constitute offences under Sections 4 and 5 of the Act. The facts as exposed before me are that three ladies were sitting in the car, whereas, Deepak Chauhan, was standing outside.
He received a sum of Rs. 1000/- from the decoy customer, later on that money was recovered from the ladies. There is no such evidence that the ladies came out of the car intending to go with the decoy customer or that they offered their body for sexual intercourse to him. The allegations is only that as soon as decoy customer handed over the money to Deepak Chauhan, raid was conducted and money was recovered from the ladies, therefore, to my mind no ingredients appear to have been completed in order to record observations that either Deepak Chauhan was living on the earning of the prostitution or he was habitually in their company; he handed over the ladies for sexual intercourse to the decoy customer; he was acting as a tout or pimp between the ladies and the decoy customer or that the ladies were the prostitutes as defined under Section 2(f) of the Act.
16. Now coming to the offence under Section 8 of the Act, it is not the case of chance detection. It was the decoy customer who had intentionally gone to Deepak Chauhan treating him to be as pimp or tout. Since there is no evidence that the ladies were offered to the decoy customer. Mere acceptance of money by him from the decoy customer and in the absence of other evidence of any other overt act leading to sexual intercourse, merely handing over the money to the ladies is hardly sufficient to prove that the money was received on behalf of ladies by him for the purpose of prostitution, much less for the purpose of sexual intercourse with those ladies or offering them for prostitution. As a matter of fact, since the three ladies sitting in the car are not covered within the definition of 'prostitutes', the offence of acting as a tout or pimp by Deepak Chauhan as provided under Section 4 of the Act is not established. Similarly, when the ladies are not proved to be prostitutes having been found in the houses of defame 25 and they even did not come out of the car or did any act towards sexual intercourse, they did not even show their intention to move with the decoy customer then to attract or endeavour to attract the customers by the three ladies by making gestures also can't be said to be proved.
Particularly when no such part of the body was shown or offered by them to the decoy customer.
13. In light of the abovesaid facts and law it is clear that the provision of the act are to be construed strictly against the prosecution. It is the case of prosecution that accused Jai Singh, produced 4 girls for prostitution to decoy customer namely Inspector V.K.P. Singh and in lieu of the same he received Rs. 1,000/- from the decoy customer of which he kept Rs. 500/- and gave remaining Rs. 500/- to girl namely Pooja.
14. It was upon the prosecution to prove that the girls alleged to be produced by accused Jai Singh to the decoy customer were prostitute as per section 2(f) of ITP Act. Although it is averred by the witnesses that the girls so produced by the accused were making indecent gestures, however, no intention on the part of said girls was proved to show that they intent to move with the decoy coustmer. As held by Hon'ble High Court of Punjab & Haryana in Renu Bansal case (Supra) that mere acceptance of money from the decoy customer and in absence of other evidence of any other overt act leading to sexual intercourse, merely handing over the money is hardly sufficient to prove that the money was received for the purpose of prostitution, the prosecution has failed to show that the said girls squarely falls within the provision of section 2(f) of ITP Act.
15. It is further pertinent to state in here that although the FIR was lodged subsequent to the handing over memo and seizure memo, however all the abovesaid documents bears the FIR number. At this stage, it would be relevant to 26 state in here that the observations made by Hon'ble High Court of Delhi in Pradeep Saini v. State 2009 SCC OnLine Del 2803 :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW-3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW-2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the knife in the manner alleged by the prosecution.
16. Further more as discussed above, that the provisions of the act are to be strictly construed against the prosecution, it was for the prosecution to prove that the seized items i.e. four notes of denomination 500/- which were recovered from the possession of accused persons were kept safely in the Malkhana. It is pertinent to state in here that no witness has been examined with regard to the same nor the malkhana register was ever brought before the court in order to show that the seized property was deposited in Malkhana. For the same, I may gainfully referred to the observations made by Hon'ble Apex Court in Md. Morful Haque v. The State of West Bengal 2017 SCC OnLine Cal 3380 :
21. The Indian Currency Notes suspected to be fake seized on August 19, 2009 were sent to General Manager, Currency Note Press, Nasik for expert opinion by P.W. 9 27 only on February 3, 2010 and was received there on February 6, 2010. But such inordinate delay had not been explained. The claim of P.W. 10 that on September 1, 2009 he applied before CJM Malda for sending the seized currency notes to Nasik for examination through court and got permission is without any basis. Seized articles were reportedly kept in the thana Malkhana but neither the Malkhana register was seized and produced during trial nor Malkhana-in-charge was examined to prove that those alamats were kept in Malkhana and were properly sealed, packed and labelled when received in Malkhana. There was also no explanation to that effect. Taking into account the entire circumstances, we find that recovery of the counterfeit Indian Currency Notes from the possession of the appellant was not proved beyond reasonable doubt.
In the present case, the recovery of said 4 notes of denomination 500/- from the possession of accused persons was an important piece of evidence as it is the case of prosecution that accused persons were supplying the girls for prostitution against the consideration. As observed above that the provisions of the ITP Act are to be construed strictly against the prosecution, it was for the prosecution to show that the said notes after recovery were kept safely at Malkhana immediately after the raid. As the prosecution has failed to adduce any such evidence that seized notes were immediately deposited in the Malkhana safely, the same amount to serious lapse on the part of the prosecution.
17. Furthermore in the present case in hand, the police officials was deputed as a trap witness / decoy customer. In State vs. Bashir Ahmed (supra), Hon'ble High Court of Delhi has stated that the statement of accused to the decoy police constable is inadmissible u/s 162 Cr.P.C. Hon'ble High Court of Delhi has further observed that it is in the interest of prosecution to not to use a police officer as a decoy. Furthermore Hon'ble Apex Court with regard to the evidentiary value of 28 the trap witness has observed in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 :
24. From the aforesaid authorities it is clear that a trap witness is an interested witness and his testimony, to be accepted and relied upon requires corroboration and the corroboration would depend upon the facts and circumstances, nature of the crime and the character of the trap witness.
In the present case in hand, testimony of trap witness is corroborated by shadow witness, who has stated to have accompanied the decoy customer for negotiations with accused Jai Singh, himself a police official and is an interested witness. All the other prosecution witnesses only deposed what were informed to them by decoy customer i.e. Inspector V.K.P. Singh.
18. It is further pertinent to state in here that the raid was conducted by the raiding team in pre planned manner and in a public place, however despite the same no public person was joined investigation. All the witnesses of prosecution have stated during the course of their deposition that several public persons were present at the spot at the time of incident, however none of the public persons joined the investigation. In Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi:
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses. Parrot-like statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not convince the Court.
In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the 29 bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is well- known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
3019. In light of the law and facts stated above and further considering the lapses on the part of prosecution to prove itse case beyond reasonable doubt, the accused Jai Singh is acquitted for the offences for which they were charged for.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 04.04.2018 METROPOLITAN MAGISTRATE-02
SOUTH- EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 30 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE-02 SOUTH-EAST, SAKET COURTS, NEW DELHI