Delhi District Court
State vs . Farida @ Farohat Etc. on 11 May, 2018
1
IN THE COURT OF SH. ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 757/07
PS - Lajpat Nagar
U/s. 4/5/8 ITP Act ANUBHAV
State Vs. Farida @ Farohat etc.
JAIN
JUDGMENT
Digitally signed by ANUBHAV JAIN A. SL. NO. OF THE CASE : 384/2/12 Date: 2018.05.11 B. DATE OF INSTITUTION : 29.09.2007 22:05:18 +0530 C. DATE OF OFFENCE : 31.07.2007 D. NAME OF THE : SHO Chanderkant Sharma COMPLAINANT E. NAME OF THE ACCUSED : 1) Farida @ Farohat (Convicted vide order dt.
28.04.2012 )
2) Aima (Convicted vide order dt.
28.04.2012)
3) Mokaya @ Makhaya (Convicted vide order dt.
11.01.2008 )
4) Elena Astashova D/o Astashov Sergei
5) Leena @ Liliya D/o Durdebak (Trial separated vide order dt. 16.12.2017)
6) Rohyan (Convicted vide order dt.
2 28.04.2012 ) 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 : 11.05.2018 Brief Statement of Reasons for Decision :
1. The accused persons namely Elena D/o Astashov Sergei, Farida @ Farohat Yutdashava W/o Furkaf, Aima @ Enjan Rozykulyyeva D/o Kurban, Leena @ Liliya Mansurova D/o Durdebak, Mokaya @ Mukhayya Magharipova D/o Wafaq and Reyhan @ Royhan Abdurdhimara D/o Yakichisvo are produced before the court to stand trial for the offence punishable u/s 4/5/8 of Immoral Trafficking Prevention Act, 1956, herein after referred as ITP Act.
Before proceeding further with the present case in hand, it is pertinent to state in here that in the present matter, only one accused i.e. Elena Astashova (as per the copy of passport placed on record) has contested the case on merits. The name of the said accused has been mentioned as Lehna @ Elena Astashova in the charge sheet so filed by the IO, however during the proceedings i.e. in the applications filed on behalf of above named accused, in the statement u/s 313 CrPC as well as in the bail bonds so furnished the name has been mentioned as Leena @ Elena, W/o Sh. Upender Sherawat. In the copy of passport of the said accused the name Leena or Lehna has not been mentioned. As such in the present judgment, the accused has been referred as Elena (the name as mentioned in the copy of passport).
32. In brief, facts of the case of the prosecution are that on 31.07.2007 Insp. Chanderkant Sharma was informed by SI Pramod Gupta, InchargePP Amar Colony, regarding prostitution racket being run by one lady by name of Nagina. It is further stated that it is informed by SI Pramod that said lady Nagina, if contacted on mobile no. 9871112863 she could provide the girls for the purpose of prostitution. Upon the same, Insp. Chanderkant Sharma asked SI Pramod Gupta to verify the said information and after verification of the same, SI Pramod Gupta informed Insp. Chanderkant Sharma that deal was finalised for supply of girls at 7.30 pm at Liliput Showroom, Veer Sawarkar Marg, Lajpat Nagar for a consideration amount of Rs. 3000/ and the customer was asked to reach the spot in white pant and shirt. It is further stated that at 7.00 pm Insp. Chanderkant Sharma alongwith ACP Harish Joshi, W/SI Josepha reached the Lilliput Showroom where they met SI Pramod Gupta, Ct. Balraj and Ct. Satender. That thereafter Insp. Chanderkant Sharma and ACP Harish Joshi appointed SI Pramod Gupta as Decoy Customer as he was wearing white shirt and pant and Ct. Satender as Shadow Witness. Thereafter Insp. Chanderkant Sharma handed over 14 notes of denomination Rs. 500/ to SI Pramod Gupta after signing the same, and instructed the shadown witness to signal the raiding party by knocking thrice on the gate, after completion of deal. It is further stated that Ct. Satender asked 45 public persons to join in the investigation, however none of them agreed and left the spot without informing their name and address. It is further stated that at about 7.40 pm one foreigner female reached near Liliput Showroom and called SI Pramod Gupta by signalling him and SI Pramod Gupta and Ct. Satender went near her after which she asked them to follow her. It is further stated that the raiding party followed SI Pramod and Ct.
4Satender and SI Pramod Gupta and Ct. Satender reached at a flat at E16, 2 nd Floor, Lajpat Nagar2, New Delhi alongwith the said lady. It is further stated that at about 8.15 pm Ct. Satender knocked at the gate thrice upon which ACP Harish Joshi alongwith the raiding party entered the flat where they found 5 other foreigner girls beside SI Pramod Gupta, Ct. Satender and Farida. It is further stated that ACP Harish Joshi introduced himself and SI Pramod Gupta informed that the said 5 girls namely Mukaya, Royan, Leena, Lehna and Aima were produced for the purpose of prostitution @ Rs. 3000/. He further informed that their boss namely Nagina went to the market. He further informed that Farida asked them to choose a girl and that all the girls present in the said flat were making indecent gestures towards the decoy customer. He further informed that he paid a sum of Rs. 6,000/ for Rayan and Leena and accused Farida has also asked for Rs. 500/ towards room charges per head and the decoy customer has paid another sum of Rs. 1,000/ to Farida which Farida kept in her undergarments. It is further stated that on the instructions of Insp. Chanderkant Sharma, W/SI Josepha conducted personal search of accused Farida in separate room and recovered Rs. 7000/ from her undergarments which was given to her by Insp. Chanderkant Sharma. Thereafter Insp. Chanderkant Sharma kept the said notes in a separate envelope and sealed the same and got the FIR registered against the accused persons u/s 3/4/5/8 of ITP Act. Insp. Inspector Chanderkant Sharma prepared the site plan, recorded statement of witnesses and arrested accused persons. It is further stated that at the time of arrest none of the accused could produce her valid passport and visa and therefore section 14 of Foreignors Act was added. It is further stated that during the course of bail hearing, accused Mukaya, Leena @ Liliya, Elena and Aima 5 produced their valid passports and visa. It is further stated that accused Rohyan produced her passport, however she was not having visa at that time and no document could not recovered from accused Farida. It is further stated that despite search Nagina could not be found. It is further stated that after completion of investigation chargesheet was filed against accused Farida before the court u/s 3/4/5 of ITP Act and u/s 14 of Foreigners Act, u/s 8 ITP Act and u/s 14 Foreigners Act against accused Rohyan and u/s 8 of ITP Act against accused Leena, Lehna, Aima and Mukaya.
3. Accused persons appeared before the court and copy of charge sheet supplied to them u/s 207 CrPC on 13.07.2007. Accused persons namely Farida, Aima, Elena, Leena and Reyhan were charged by Ld. Predecessor Court u/s 4/5/8 ITP Act vide order dt. 14.12.2007 to which accused persons pleaded not guilty and claimed trial.
4. It is pertinent to state in here that accused Aima, Farida and Rohyan pleaded guilty before the Ld. Predecessor Court on 28.04.2012 u/s 4/5/8 of ITP Act and u/s 14 of Foreignors Act and the said accused was convicted by the Ld. Predecessor Court on the same day. Accused Mukaya was convicted by the Ld. Predecessor Court on her plea of guilt on 11.01.2008. Further accused Leena failed to appear before the court and process u/s 82 CrPC were issued against the accused Leena by Ld. Predecessor Court vide order dt. 02.12.2014, however the process could not be completed against the said accused as it is stated that she is resident of Uzbekistan. It is further pertinent to state in here that Hon'ble High Court of Delhi vide order dt. 17.11.2017 has 6 directed to complete the trial within the period of one year. Thereafter this court vide order dt. 16.12.2017 has separated the trials of accused Leena @ Liliya and Lehna @ Elina while considering the fact thatthe process u/s 82 CrPC against accused Leena @ Liliya is pending from last about 03 years.
5. Prosecution in order to prove its case has examined following witnesses:
5.1 PW1 SI Ved Prakash deposed that on 31.07.2007 he was posted as constable at PPAmar Colony and on that day SI Pramod Kr. Gupta informed him that a secret informer had informed that some foreigners girls are involved in prostitution business and he also told that he has received a mobile number through which all the activities are happening. He further deposed that he informed about the same to SHO C.K. Sharma and ACP Harish Joshi and SHO gave directions to SI Pramod to verify the abovesaid information and after enqiury SI Pramod informed the SHO that some girls will come at Liliput Showroom, Lajpat Nagar2. He further deposed that SHO directed to SI Pramod to go there and prepare a raiding party and thereafter SI Pramod and some police officers went there and SI Pramod prepared a raiding party comprising of SI Pramod, Ct. Satender Ct. Balraj and him. He further deposed that SHO and ACP alongwith W/SI Josapha also came at Liliput Showroom and after their reaching and SHO briefed them that SI Pramod will be a decoy customer and Ct. Satender will be a shadow witness and also directed to Ct. Satender that if deal will be finalised, he will signal by knocking the door 3 times. He further deposed that at about 7.40 pm a foreigner girl came in the said showroom who was talking to SI Pramod and 7 Ct. Satender who were in civil dress and SI Pramod and Ct. Satender went with her and other members including him of the raiding party were following them. He further deposed that thereafter SI Pramod, Ct. Satender and that foreigner girl reached at E15, 2nd Floor, Lajpat Nagar2 and raiding party also followed them and after sometime Ct. Satender gave signal to the raiding party and they were entered in the said house where SI Pramod, Ct. Satender and 5 girls including that girl to whom SI Pramod talked with at Liliput showroom were present there and ACP Harish Joshi informed the accused persons that he is a police officer and thereafter he directed W/SI Josapha to search the accused Farida and in the search of accused Farida, Rs. 7,000/ (each note of Rs. 500/ and were already signed by SHO ) was recovered from her possession. He further deposed that these notes were seized vide seizure memo Ex. PW1/A and duly sealed with the seal of 'CKS' and thereafter SHO prepared a rukka and got the FIR registered through Ct.
Balraj. He further deposed that thereafter accused persons were arrested vide arrest memo and their personal search got conducted. He correctly identified the accused Elena and case property i.e. 14 currency notes of denomination 500/ in the court.
5.2 PW2 HC Satender Singh, PW3 HC Balraj deposed on the similar lines as that of PW1 and same is not being reiterated here for the sake of brevity. They further identified the accused and case property in court.
5.3 PW4 Insp. Josepha deposed that on 31.07.2007, she was posted as W/SI at PS Lajpat Nagar and on that day, SHO C. K. Sharma included her in raiding party and she along with SHO C. K. Sharma and ACP 8 Harish Joshi went to Lilliput Lajpat Nagar from PS and in front of the Lilliput, Lajpat Nagar, there were SI Pramod Gutpa, HC Ved Prakash, Ct. Satender and Ct. Balraj from Amar Colony Police Chowki. She further deposed that at that place, SHO had some talks with SI Pramod Gupta and she was standing at some distance however, an amount of Rs. 7,000/ was given by SHO to SI Pramod Gupta and SHO made SI Pramod Gupta as a decoy customer and Ct. Satender as a shadow witness. She further deposed that SHO further asked public persons to join the investigation, however, none had joined the same. She further deposed that they were briefed by the SHO that in case deal will be done, on three knocks they had to enter the room and Ct. Satender was asked to give signal of three knocks. She further deposed that after that SI Pramod Gupta met a woman whose name as subsequently revealed as Farida and thereafter, SI Pramod Gupta and Ct. Satender went along with Farida and they followed them. She further deposed that Farida came at about 07.45 pm and thereafter, all the three persons entered into E 15, Second Floor, Lajpat NagarII and at about 0815 pm, they heard three knocks on the gate on which they went into the drawing room and inside the room, apart from SI Pramod and Ct. Satender there were five other foreign girls and lady Farida present. She further deposed that ACP introduced himself to lady Farida as a gazetted officer and stated that he has received the information regarding prostitution racket being carried out at the said place and SI Pramod informed that he has handed over the money to Farida. She further deposed that after that ACP directed him to search Farida and she took Farida inside the room and conducted the personal search in which she found a sum of Rs. 7,000/ from the person of lady Farida which consists of 14 notes of denomination of 500/ each and said notes bears signature at the 9 back side. She further deposed that thereafter, he handed over the notes to SHO and seizure memo of 14 currency notes was prepared by SHO Ex.PW1/A and thereafter, SHO prepared the rukka and handed over the same to Ct. Balraj to get the FIR lodged. She further deposed that thereafter SHO interrogated all the five girls and Farida and arrested them and recorded disclosure statement of Farida Ex.PW4/A and she conducted personal search over all the accused persons which were present at the spot. She further deposed that accused persons were arrested thereafter personal search was conducted. She further deposed that thereafter, they brought all the accused persons at PS from where they took all the accused persons along with one lady constable to AIIMS Hospital for their medical examination and thereafter, accused persons were sent to lock up and on next day, they were sent to JC. After medical examination, her statement was recorded at PS. She correctly identified the accused Elena and case property i.e. 14 currency notes of denomination 500/ in the court.
5.4 PW5 Mohan Lal Kapoor deposed that he did not give any statement in the present case and he is not aware regarding the facts of present case.
It is pertinent to state in here that the said witness is cross examined by Ld. APP for the State as he was resiling from his previous statement given to the police.
5.5 PW6 ASI Malkhan Singh proved the FIR Ex. PW3/B. 5.6 PW7 Harish Chandra Joshi deposed that during the year 2007 10 he was posted as ACPLajpat Nagar and on 31.07.2007 he was informed by Insp. Chandra Kant Sharma, the then SHO, Lajpat Nagar that he has information about prostitution racket being run by foreigner girls in Lajpat NagarII. He further deposed that he advised SHO to verify the facts and after verification SI Pramod Gupta, Incharge, PPAmar Colony informed that the leader of prostitution racket has agreed to supply the girls @ Rs. 3000/ per girl. He further deposed that SI Pramod informed him that he was conducting raid and after sometime requested to come near Liliput Showroom in Lajpat NagarII and to join the raid. He further deposed that he reached Liliput showroom and after briefing the staff and after sometime one foreigner lady was seen coming to the showroom and talking to SI Pramod who was in plain clothes and was a decoy customer as per the planning and Ct. Satender was shadow witness. He further deposed that both decoy customer and shadow witness followed the lady and were led to H. No. E15, Lajpat NagarII, New Delhi and after a predecided signal received by Insp. Chander Kant, the remaining raiding party outside the house also entered the second floor flat and he also followed them there. He further deposed that he saw 5 other women in that room who were quite perplexed to see the raiding party there and he gave his identity to all those women present there and further advised the SHO and WSI Josepha to conduct the legal proceedings as per law. He further deposed that prior to the raid, he had advised SHOLajpat Nagar to arrange some independent witness to accompany the raiding part and witness there, however none of them agreed. He further deposed that he left the spot after giving suitable instructions to the raiding party and the case was registered at PSLajpat Nagar and was investigated by Insp. Chander Kant, SHOPSLajpat Nagar and after completion he forwarded this case for trial to 11 the court. He correctly identified the accused Elena and case property i.e. 14 currency notes of denomination 500/ in the court.
5.7 PW8 Insp. Pramod Gupta deposed that on 31.07.2007 he was posted as ASI at PS Lajpat Nagar IC PP, Amar Colony and on that day, he received an information from the secret informer regarding some foreigners girls involved in the prostitution business. He further deposed that secret informer told him that he had received a mobile number 9871112863 by which all activities regarding the prostitution were run by a lady namely Nageena. He further deposed that thereafter, he forwarded the information to the senior officials SHO, Insp. C. K. Sharma and on the instructions of SHO, he had contacted with the above mentioned mobile number by which the prostitution business was carrying on. He further deposed that thereafter, at about 05:45 pm, he had informed SHO that the information is correct and the lady Nageena had told to provide two girls for Rs. 3,000/ per girl and the lady also told him that at about 07:30 pm, she will come at Liliput Showroom, Lajpat Nagar II and also told him to come in white pant and shirt. He further deposed that thereafter, on the instructions of the SHO, he prepared a raiding party which include HC Ved Prakash, Ct. Balraj and Ct. Satinder reached in front of Lilliput Showroom, Lajpat Nagar II, New Delhi at about 06:50 pm and SHO and ACP alongwith WSI Jospha also came there. He further deposed that SHO briefed them and gave him Rs. 7,000/ (14 notes of Rs. 500/) which bears the signature of SHO and a memo was prepared in this regard Ex. PW8/A and he was made as a decoy customer and Ct. Satinder was made as a shadow witness. He further deposed that thereafter, SHO requested 45 public persons to join the investigation but they refused to join the 12 investigation and thereafter, he and Ct. Satinder stand outside the Liliput Showroom and after sometime, at about 07:3040 pm, a foreigner girl came outside the showroom who had given him a signal (ishara). He further deposed that thereafter, he went near her and she revealed her name as Farida and she further told that Nageena went somewhere and instructed them to come behind her and thereafter took them at E16, Second Floor, Lajpat Nagar II. He further deposed that on reaching there, five girls foreigners were present there and Farida told them to choose one girl among the five and the five girls including the accused allured them by making indecent gestures. He further deposed that they choose two girls, namely, Leena and Rehana among the five and Farida took Rs. 3000/ per girl and also charged Rs. 500/ for the room and total Rs. 7000/ was handed over by him to Farida. He further deposed that the shadow witness namely Ct. Satinder has knocked the door three times which was a signal for the other raiding members and after the signal, the raiding party came inside the room and thereafter, ACP Harish Joshi informed the accused persons that he is police officer and there is allegation that they all are involved in prostitution business. He further deposed that thereafter, on the direction of the SHO, WSI Josapha searched the accused Farida and on her search, Rs. 7,000/ which was signed by the SHO was recovered from the possession of accused Farida and the said currency note was taken into possession by preparing the seizure memo Ex. PW1/A and sealed with the seal of CKS. He further deposed that thereafter, a tehrir was prepared and same was sent through Ct. Balraj for registration of the FIR at PS and on his instance, site plan Ex. PW8/B was prepared. He further deposed that thereafter, all the accused persons were arrested and searched vide arrest memos Ex. PW4/H to Ex. PW4/M and personal search 13 memos Ex.PW4/B to Ex. PW4/G. He further deposed that disclosure statement of accused Farida was recorded Ex. PW4/A and again a disclosure statement of accused Fairda was taken Ex. PW8/C and thereafter, IO had recorded his statement u/s 161 Cr.P.C. He correctly identified the accused Elena and case property i.e. 14 currency notes of denomination 500/ in the court.
5.8 PW9 Retd. Insp. C.K. Sharma deposed that on 31.07.2007 he was posted as an SHO at PS Lajpat Nagar and on that day, SI Pramod was the Chowki Incharge of Amar Colony who informed him over phone that one mobile number 9871112863 belonging to Nageena who run a prostitute racked and supply the foreigners girls. He further deposed that he instructed him to verify the details and SI Pramod called him again at about 05:45 pm and told him that information regarding to the prostitution racket was correct and the lady had asked to come to the Liliput Showroom at Veer Savarkar Marg, New Delhi and she also told SI Pramod Gupta to come on white pant and shirt and that she will charge Rs. 3000/ per girl for one shot and Rs. 500/ for providing the room facility. He further deposed that he further transfer the said information to the ACP concerned and on his instruction he instructed SI Pramod to prepare a raiding party which include i.e. HC Ved Prakash. Ct. Satinder and Ct. Balraj alongwith SI Pramod. He further deposed that thereafter, he alongwith WSI Jospha Kujur and ACP reached at Liliput Showroom, Lajpat Nagar II at about 07:00 pm and at about 07:45 pm, accused Farida came at the showroom and who called SI Pramod by making signal. He further deposed that in between this, he had briefed the raiding party and handed over 14 Rs. 500/ notes which bears his initial in each note 14 to SI Pramod Gupta by preparing a handing over memo Ex. PW8/A. He further deposed that he also instructed Ct. Satinder to became a shadow witness and accompanied SI Pramod who was made as a decoy customer in the raiding party. He further deposed that he further instructed Ct. Satinder that if the deal was made to give the signal by knocking three times at the door. He further deposed that thereafter, on the instructions of the accused Farida SI Pramod and Ct. Satinder followed her and went to the E15, Second Floor, Lajpat Nagar II, New Delhi and raiding party also followed them secretly. He further deposed that accused Farida alongwith SI Pramod and Ct. Satinder went inside the room and at about 08:15 pm, on the signal of Ct. Satinder raiding party entered the room alongwith ACP and WSI Josepha and on entering the room, they found five girls excluding Farida. He further deposed that SI Pramod told him that accused Farida has charged Rs. 7000/ for two girls and including Rs. 500/ for room. He further deposed that thereafter, ACP disclosed his identity that he is a Gazetted Officer and witness instructed WSI Josepha for search of the accused Farida. He further deposed that the search was made on a separate room and Rs. 7000/ was found under the upper under garment of the accused. He further deposed that the recovered money was seized by preparing the seizure memo Ex. PW1/A and on inquiry about Nageena, it was informed by the accused that she went to the market. He further deposed that thereafter, he prepared the rukka Ex. PW9/A and got the FIR registered through Ct. Balraj and after sometime Ct. Balraj came back after registration of the FIR and handed over him copy of FIR and original rukka. He further deposed that thereafter, at the instance of SI Pramod he prepared the site plan Ex. PW8/B and arrested the accused by preparing the arrest memo and personal search memos Ex. PW4/B to Ex.
15PW4/M. He further deposed that case property was wrapped in the white cloth and he prepared the pullanda and sealed with the seal of CKS. He further deposed that thereafter, they came back at the PS and sent the accused persons to the hospital for their medical examinations alongwith WSI Josepha and other staff. He further deposed that thereafter, he recorded the disclosure/confession statement of accused Farida twice Ex. PW4/A and Ex. PW8/C and the accused was kept in the police lock up and on the next day, they were produced before the Hon'ble Court from where they were sent to the JC. He further deposed that thereafter, he recorded the statement of witnesses us/ 161 Cr.P.C and during the course of investigation, SI Pramod had sent request to the concerned officials to verify regarding the genuineness of the Visa documents Ex. A2 (colly). He correctly identified the accused Elena and case property i.e. 14 currency notes of denomination 500/ in the court.
It is pertinent to state in here that accused Elena has admitted the MLC No. 128 dt. 01.08.2007 and letter no. VII/407/6/2003 dt. 18.08.2007 u/s 294 CrPC vide separate statement dt. 23.02.2018 and same is Ex. A1 and A2.
6. After completion of prosecution evidence, statement of accused Elena u/s 313 Cr.P.C was recorded wherein she denied all the allegations as leveled against her by the prosecution. She further choses not to lead any defence evidence.
7. I have heard Ld. APP for the state and counsel for the accused person and perused the case file carefully.
168. 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) SI Pramod Gupta received a secret information regarding running of prostitution racket being rum by one person namely Nagina and he shared the said information with Inspector C.K. Sharma and ACP Harish Joshi.
b) SI Pramod Gupta verified the said information by calling at 9811162687 and talked to accused Nagina, who asked him to come over to Lajpat Bhavan, near Liliput Showroom, Lajpat Nagar II, at 7:30 pm and informed that she would charge Rs. 2000/ for each girl.
c) A raiding team comprising of ACP Harish Joshi, Inspector C.K.Sharma, SI Pramod Gupta, SI Ved Prakash, HC Satender, HC Balraj and W/SI Josepha and raiding party reached near Liliput Showroom, Lajpat nagar at 7.00 pm
d) That HC Satinder was made as shadow witness and SI Pramod Gupta as decoy witness and Insp. C.K. Sharma hand over 14 notes of denomination 500/ to SI Pramod Gupta bearing his signature.
e) That accused Farida arrived at spot at 7.45 pm and asked SI Pramod Gupta and HC Satinder to follow her and took them to E16, IInd Floor, Lajpat nagar II and produce 5 girls and decoy costumer choses two girl and hand over 14 notes of denomination 500/ to accused Farida which she kept in her under garments.
f) That on the signal of shadow witness, raiding party apprehended the accused persons and on personal search of Farida said 14 notes of 500 17 were recovered from her person.
9. It is argued by Ld. APP for the state that all the witnesses supported the case of prosecution and testimony of witness goes to show that Farida produced accused Leena for the purpose of prostitution for which she charged from SI Pramod Gupta. He further argued that recovery of notes, bearing signature of Insp. C.K. Sharma, from the possession of Farida further goes to shows that she was living on the earning of prostitution and as such prosecution is able to prove its case beyond reasonable doubts and accused is liable to be convicted.
10. On the other hand it is argued by the counsel for the accused that prosecution has failed to discharge its burden and has failed to prove its case beyond reasonable doubts. It is argued by the counsel for the accused that:
a) PW5 M.L. Kapoor did not support the case of prosecution.
b) It is further argued that although seizure memo was prepared subsequent to the lodging of FIR, seizure memo bears FIR Number which raises serious suspicion over the case of prosecution.
c) That CDR was not proved by the prosecution.
d) That malkhana register was never brought on record or proved by the prosecution in order to prove that the seized items were kept safely in the malkhana. Further MHCM was never examined by prosecution.
e) No public witness was joined in at the time of raid.
f) That there are contradiction in the testimonies of prosecution witnesses.18
11. In the present case in hand, the allegations against accused Leena are that she was working as prostitute and was found to make indecent gestures in order to attract Decoy costumer and further found to be living on the earnings of prostitution. 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 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, 19 it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of pros titution 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 subsection 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:
Provided that if the person in respect of whom an offence committed under this subsection,--
(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 20 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.
8. Seducing or soliciting for purpose of prostitution.-- Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not
--
(a) by words, gestures, wilful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeav ours to attract the attention of, any person for the pur pose of prostitution; or
(b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees: 36[Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a pe 21 riod of not less than seven days but which may extend to three months.]
12. 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 imple mentation both seem to be fraught with difficulties. One such law is this legislation relating to suppression of pros titution. 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 and dedication to gods, priests and temples. At one time courtesans carved for themselves an accepted niche in society nearing re spectability. Still later it came to be protected, licensed and regulated by law. In spite of puritan fervour it is diffi cult to totally eradicate this ancient practice unless the so ciety guarantees to supply suitable employment and more rigorous its suppression is, more defiantly does it emerge overtly and covertly in other sophisticated forms. In gen eral there is universal agreement that the practice of non merital sex as a profession is degrading to the dignity of mankind, of women in particular. In pursuance of ratifica tion by India of the International Convention of the sup pression 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 sup 22 plies 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 con strued 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 im poses reasonable restrictions on it.
MC Malerkotla v. Mushtaq, AIR 1960 Punjab 18. What it 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 con siderations. 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 liv ing. 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 per sons 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, 23 and Bai Shanta (supra). In re Dhanalalcshmi 1974 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 indiscrimi nate sexuality can be inferred from the facts and sur rounding circumstances of the case and it is not nec essary that the evidence of more than one customer of the prostitute should be adduced, vide T. Ja cob v. Stats of Kerala, 1971 Cri. L.J. 952, and Krishna murthy @ 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 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 col lected? 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 ac cused.
9. .........
10. As respects the second question, the learned Magis trate 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 conclu sively incriminating fact is not in itself a confession. A con 24 fession must either admit in terms, the offence, or at any rate substantially all the facts which constitute the of fence: Pakala Narayana Swami v. Emperor, AIR 1939 PC.
47. Now, the solicitation made by the accused to the po lice officer was not a confession made to him of an of fence but was an offence committed in relation to a per son who happened to be a police officer. Confession is al ways 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 Sec tion 25 of the Evidence Act. But, it appears to me the said statement of the accused having been made during inves tigation is excluded from evidence under Section 162 Cr. P.C. with reference to a trap laid by the AntiCorruption police, it was held in Maha Singh v. State (Delhi Admn.), (1976) 1 SCC 644 : AIR 1976 SC 449, that where the In spector recorded the complaint, arranged the raid by not ing 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 'investiga tion' 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 cognis able 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 com menced 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 empha sised that it is wholly wrong for a police officer or any other person to be sent to commit an offence in order 25 that an offence by another person may be detected".: Bramnan v. Peek , (1947) 2 All E.R. 572 at 583584, approved in Kamalabai v. State of Maharash tra , AIR 1972 SC 1189. I am in agreement with the criti cism 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.
13. 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 parame ters of the aforesaid interpretations, I am inclined to hold that facts and circumstances prevailing over the case do not 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 or der to record observations that either Deepak Chauhan was living on the earning of the prostitution or he was habit ually 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.
2616. Now coming to the offence under Section 8 of the Act, it is not the case of chance detection. It was the decoy cus tomer who had intentionally gone to Deepak Chauhan treating him to be as pimp or tout. Since there is no evi dence that the ladies were offered to the decoy cus tomer. Mere acceptance of money by him from the de coy 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 be half 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 mat ter of fact, since the three ladies sitting in the car are not covered within the definition of 'prostitutes', the of fence of acting as a tout or pimp by Deepak Chauhan as provided under Section 4 of the Act is not estab lished. Similarly, when the ladies are not proved to be prostitutes having been found in the houses of defame 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.
14. 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 prose cution that accused Farida produced 5 girls for prostitution to decoy customer namely SI Pramod Gupta and shadow witness Ct. Satender and in lieu of the same she received Rs. 7,000/ from the decoy customer which was subse quenty recovered from her possession.
2715. It was upon the prosecution to prove that the girls alleged to be pro duced by Farida to the decoy customer were prostitute as per section 2f of ITP Act. It is alleged by SI Pramod Gupta that the said 5 girls including the ac cused were alluring them by making indecent gestures. It has not been stated by the witness during the course of his deposition as to what type of gestures which are stated to be indecent were made by the accused persons. Merely making an averment that indecent gestures were being made by the accused persons in order to allure the decoy customer cannot be in itself said to be sufficient to prove that any overt act was being done by the accused persons leading to sexual intercourse. 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 suffi cient 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 pro vision of section 2f of ITP Act.
16. Be that as it may, it goes without saying that there are several lapses in the case of the prosecution. Witness M.L. Kapoor denied being owner of the property in question and further denied being aware of facts of the present case. Furthermore, Nagina with whom the deal was stated to be finalized by SI Pramod Gupta never apprehended in the present case.
17. It is further pertinent to state in here that although the FIR was lodged subsequent to handing over memo and seizure memo, however all the above said documents bears the FIR number. At this stage, it would be relevant to 28 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 regis tration of the FIR Ex.PW2/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.PW2/B has appeared on the docu ment, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW2/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 situa tions, it seriously reflects upon the veracity of the pros ecution version and creates a good deal of doubt about recovery of the knife in the manner alleged by the pros ecution.
18. 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. 14 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 :
2921. 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 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 Malkhanaincharge 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 14 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 provi sions 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 ad duce any such evidence that seized notes were immediately deposited in the Malkhana safely, the same amount to serious lapse on the part of the prose cution.
3019. Furthermore in the present case in hand, the police officials was de puted 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 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 wit ness is an interested witness and his testimony, to be ac cepted and relied upon requires corroboration and the cor roboration would depend upon the facts and circum stances, 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 is stated to have accompanied the decoy customer for negotiations with accused Farida, himself was a police official and is an inter ested witness. All the other prosecution witnesses only deposed what were in formed to them by decoy customer i.e. SI Pramod Gupta himself.
20. 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. Section 15 of ITP act requires that at the before making any search of premises under the act special officer 31 shall call upon two or more respectable inhabitants of the locality in which place to be search is situated. Relevant portion of sec 15 of ITP act is being reproduced as under:
15. Search without warrant.--
(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer 49 [or the trafficking police officer, as the case may be,] has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a 50 [person] living in any premises, and that search of the premises with warrant cannot be made without undue delay, such of ficer may, after recording the grounds of his belief, en ter and search such premises without a warrant. (2) Before making a search under subsection (1), the special police officer 51 [or the trafficking police officer, as the case may be] shall call upon two or more re spectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do: 52 [Provided that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not ap ply to a woman required to attend and witness the search.] Further 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 inde pendent public witnesses. Parrotlike statements to the ef fect that passersby were asked but declined to join are given by the IOs in the present case. This does not con 32 vince 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 bus stand at Najafgarh, which was a public place but there were no independent public wit nesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this con tention, the Supreme Court observed:
"It may be as technically argued by the learned Addi tional Solicitor General that the presence of public witness under the scheme of Code of Criminal Pro cedure 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 recov ered from the personal Search. But it is wellknown that in all matters where the police wants that the story should be believed they always get an indepen dent 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 ac cused 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 in former 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 there fore difficult to accept that in every such instance, no inde pendent witness was available. The circumstance of ar rest has not been convincingly proved by the prosecution.
3321. Considering the law and facts stated above, prosecution has failed to prove its case beyond reasonable doubts against the accused Elena. In view of the same, accused Elena stands acquitted to the offences for which she was charged.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 11.05.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 33 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI