Delhi District Court
State vs . Kamlesh Verma on 18 October, 2019
CNR No. DLCT020001382004
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT02001382004
CIS No. 289956/16
State Vs. Kamlesh Verma
FIR No. 47/03
PS. Maurice Nagar
U/s. 4 and 5 of Immoral Traffic (Prevention) Act, 1956
JUDGMENT
1) The date of commission of offence : 22.06.2003
2) The name of the complainant : Sh L.S Brar, ACP
3) The name & parentage of accused : 1) Karishma D/o. Late Ashok Patel R/o. Flat no. 402, 14th Floor, Amit Tower Lokhandwala, Mumbai (Since PO).
2) Priyanka Kaur W/o. Devender Singh R/o. B90, Dayanand Colony, Lajpat Nagar, Delhi (Since PO).
3) Shikha Sharma D/o. Late Anil Sharma R/o. A2, Sector31, Noida, CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 1/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 UP (Since PO).
4) Raju Sharma S/o. Jeet Ram R/o. B8/232233, Sector3, Rohini, Delhi (Since PO).
5) Shekhu Kumar Thapa S/o. Roop Kumar Thapa R/o. A2, Sector31, Noida, UP (Since PO).
6) Kamlesh Verma@ Kiran @ Mummy W/o. Surender Verma R/o. B8/232233, Sector3 Rohini, Delhi.
4) Offence complained of : U/s. 4 and 5 of ITP Act 1956
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 18.10.2019 Date of Institution : 10.06.2004 Judgment reserved on : 16.10.2019 Judgment announced on : 18.10.2019 BRIEF REASONS FOR THE JUDGMENT:
CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 2/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004
1) In brief, the case of the prosecution against the accused is that she was habitually living or found living on the earning of prostitution. It is also alleged against the accused is that she induced several girls with or without their consent to go on the lines of prostitution.
2) In support of its case, prosecution has examined 8 witnesses. Statement of accused was recorded under section 313 Cr.P.C (as per Section 281 (1) Cr.PC), in which she denied all the allegations and did not wish to lead DE.
3) I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
4) The testimony of prosecution witnesses is being touched upon, in brief, as follows:
4.1) PW1 Sh Bijender Singh deposed that he was the registered owner of car bearing no. DL 3CAB 610 which he got financed from Baldev Finance Company. He deposed that in the year 2003, he went to the house of her aunt Ms Kamlesh Verma and when he came out of the house he found his car found missing. He deposed that he could not find that car and found that his car had been taken away by police official which he later got released on superdari.
4.2) PW2 Deepak Verma did not support the case of the prosecution at all and deposed that he does not know anything about the present case nor his statement was recorded by the police. In the crossexamination done by Ld APP for the State he deposed that he had one Santro car bearing no. DL CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 3/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 8CG 8805 which was being used by his mother Kamlesh Verma(accused).
He denied that his mother used that car on 22.06.2003 for supplying girls for prostitution.
4.3) PW3 ACP L.S Brar, PW4 ASI Sushma Chauhan, PW5 ASI Harish Chander and PW7 Inspector Manoj Kumar deposed on the same lines that on 22.06.2003 a secret information regarding the prostitution was developed and it was came into notice that the accused Kamlesh Verma @ Munni is engaged in prostitution and she can be contacted on telephone no. 32334336. HC Harish Kumar was given the role of decoy customer. The call was made on the abovementioned mobile number and the accused Kamlesh Verma was contacted where she agreed to supply girls for prostitution. She demanded the payment of Rs 20,000/ per girl per day and Rs 5000/ as her commission. Another Rs 500/ was demanded for the driver. The deal was fixed and the girls were to be dropped at specified location. At about 3:30 PM of 22.06.2003 the accused Kamlesh Verma agreed to bring the girls for prostitution at Kamla Nehru Park, Delhi University. A raiding party was prepared and the raiding party members took their positions. HC Harish and public witness Prem Singh contacted the accused Kamlesh Verma as to the prostitution while the other raiding party member were hiding themselves behind the trees. The accused Kamlesh Verma came at the spot in the Santro car which was being driven by another boy. Two girls and man were seating at the rear seat of the car. The names of those girls were revealed as Priyanka (since PO) and Shikha CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 4/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 (since PO). After few minutes another car bearing no. DL 8CG 8805 also came at the spot in which one girl was sitting at the rear seat. Ct Harish Kumar gave the signal to the police party and all the persons were apprehended. It was revealed that the accused Kamlesh Verma was demanding Rs 20,000/ per girl and her commission of Rs 5000/ and Rs 500/ for driver. Rukka Ex.PW3/A was prepared and FIR was registered. The investigation was done by Inspector Tej Pal Singh of Operation Cell, North District. Accused Kamlesh Verma was arrested. Site plan was prepared.
4.4) PW6 Colonel A.K Sachdeva proved the letters dated 06.08.2003 and 18.08.2003, in reply of letter dated 04.08.2003 received by him from Inspector North District as Ex.PW6/A and Ex.PW6/B. These letters pertain to CDR of the RIM no. 32334336 which was allegedly used by the accused Kamlesh Verma. The customer application form qua the abovementioned RIM number in the name of Vikas Ahuja was proved as Ex.PW6/C and the copy of election Icard of the customer using the abovementioned RIM number was proved as ExPW6/D. The CDR of abovementioned RIM from 01.06.2002 to 23.06.2003 was Ex.PW6/E. 4.5) PW8 Retired ACP Tej Pal Singh deposed that on 22.06.2003 he was posted as Inspector at Maurice Nagar, Special Staff, North District and there he was handed over the copy of FIR and the rukka and the investigation was marked to him. He deposed that he went to the spot where he met ACP L.S Brar and the entire facts were told to him. Site plan CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 5/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 was prepared. Accused persons were arrested and personally searched. Vehicles used in the offence DL 8CG 8805 and DL 8CAB 0610 were seized. After completion of the investigation chargesheet was filed.
5) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
6) In the present case all the witnesses examined are police officials. There was only one public witness in the present case who acted as decoy customer namely Prem Kaushik but he could not be examined in the present case as he got expired. The sole independent public witness could not be examined.
7) If the testimony of raiding party members including the complainant ACP L.S Brar examined as PW3 be read then it is revealed that a secret information was received that a lady Kamlesh Verma @ Munni was indulging in supply of girls for prostitution. The information was developed and the accused was allegedly contacted by decoy customer HC Harish Kumar on the mobile number 32334336. Thereafter the accused was allegedly remained in contact with the decoy customer from this mobile number and she allegedly agreed to supply girls when the deal was struck on the abovementioned mobile number. Thus the crucial pin of evidence in the present case is abovementioned mobile number. The CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 6/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 detailed investigation was required to be done as to the abovementioned mobile number and it was required to be proved beyond reasonable doubts by the prosecution that the accused Kamlesh Verma was actually using that mobile number.
8) In the testimony of PW6 it has came on record that the above mentioned mobile number was not in the name of accused. The customer application form of the abovementioned mobile number reveals that the RIM was issued in the name of one Vikas Ahuja S/o P.K Ahuja. The copy of election ID Card of Vikas Ahuja has also came on record. In these circumstances it was required to be done by the prosecution that Vikas Ahuja should have been traced and be brought in the court so that he can depose that his mobile number was being used by some other person. The investigation is completely silent on this crucial aspect. No efforts were made to trace Vikas Ahuja. He was not mentioned in the list of witnesses. The investigating officer deemed it to be proved as gospel truth that if the decoy customer and raiding party members will depose in the court that the abovementioned mobile number was being used by the accused Kamlesh Verma than this fact will be taken as proved by the court without any doubt. No presumption can be raised on a fact which could have been proved by calling a material witness on that aspect. It is not explained as to why Vikas Ahuja was withheld from being a witness in the present case. He could have been the best witness for the prosecution to link the above mentioned mobile number to the accused. He could have deposed that his CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 7/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 mobile phone was used by the accused Kamlesh Verma. In the absence of his testimony, there is a missing link between the between the above mentioned mobile number and the actual user of that mobile number. It is not proved on record that accused Kamlesh Verma was actually using that mobile number on the basis of which the entire case was initiated. This amounts to the fatal blow to the case of the prosecution going to roots of the present case as the clinching evidence in the form of mobile number allegedly used by the accused has not been proved as incriminating against the accused.
9) Any CDR details proved on record could have been useful had it been proved on record the ownership and the usage of at least two mobile numbers. It is not proved by the prosecution that mobile number 32334336 was actually used by the accused Kamlesh Verma. On other hand it is proved that the abovementioned mobile number was in the name of some other person namely Vikas. It has not came on record as to what was the mobile number of decoy customer Harish with which he was in contact with the accused Kamlesh Verma. His mobile number not came on record. In these circumstances it is not possible for this court to analyze the CDR to appreciate as to whether the alleged decoy customer Ct Harish ever make phone call on the abovementioned mobile number. Merely exhibiting the CDR record of a mobile number without proving as to which mobile number appearing in the CDR is of which person is of no consequence at all. The mobile number of Ct Harish could have been easily CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 8/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 brought on record and thereafter this court could have appreciated as to whether Ct Harish dialed a phone call on the abovementioned mobile number or not. If any landline phone was used, then that number should have been brought on record. No such landline number proved on record. This again carves out a void in the case of the prosecution as accused is entitled to have benefit of the same.
10) The decoy customer Ct Harish deposed that when accused Kamlesh Verma demanded Rs 20,000/ he made the signal to raiding party and thereafter raid was conducted. Same is the deposition of other raiding party members. It was came in the crossexamination of PW ASI Harish Chander, decoy customer that he was not carrying any cash for executing the deal. He was aware through alleged phone calls that accused Kamlesh Verma demanded Rs 20,000/. This was in knowledge of complainant ACP L.S Brar and other raiding party members also. In these circumstances, in all possibility the decoy customer must have carried Rs 20,000/ and the complainant ACP L.S Brar should have noted down the serial numbers of those currency notes in a handing over memo and thereafter those currency notes should have been handed over to the accused and thereafter recovered from her possession. This should have been done so as to prove that the accused Kamlesh Verma completed the act on his part. It was a alleged mere demand only when the accused Kamlesh Verma was apprehended. No money was recovered from her. There is only a statement of Ct Harish only that a demand of Rs 20,000/ was made from him which CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 9/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 was not corroborated by any recovery of currency notes (as the investigation was not done on these lines) and there is no independent witness to this aspect. It has also not came on record as to which girl the accused Kamlesh Verma agreed to provide against that Rs 20,000/ and whether alleged girl also agreed to the same or not. The entire case was framed on the basis of alleged demand of Rs 20,000/ which is also not proved beyond reasonable doubts.
11) It is the case of prosecution that the accused Kamlesh Verma was found living or habitually living in the company of prostitutes and she was living on the earning of prostitutes. Again there is no evidence on this aspect also. On whose earning the accused Kamlesh Verma was living is not proved. What was that amount and where was that amount which the accused Kamlesh Verma used to have from the prostitutes to live on that money. Again these are naked allegations.
12) Another crucial aspect of the present case is the capacity of investigating officer to investigate the present case. The entire investigation was done by PW8 ACP Tej Pal Singh, the than Inspector at Maurice Nagar, Special Staff. He was not appointed as a Special Police Officer, under the provisions of Section 13 of The Immoral Traffic (Prevention) Act 1956. Therefore, the entire proceedings stands vitiated, as the legality and validity of entire process of raid, arrest, investigation was beyond the purview of Section 13 of The Immoral Traffic (Prevention) Act, 1956, as observed by Hon'ble Apex Court in Delhi Administration Vs Ram Singh, AIR 1963 CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 10/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 SC 63. In the said judgment, it was observed that The Immoral Traffic (Prevention) Act 1956, is a complete code with respect to what is to be done under it. The entire police duties in connection with the purpose of the Act, certain area have been assigned to the Special Police Officer. The expression "police duties" under Section 2(i) of Immoral Traffic (Prevention) Act 1956, includes all functions of the police in connection with purpose of the Act and in the special context of Act, which includes detection, prevention and investigation of offences and the other duties which have been specifically imposed on them under the Act. Hon'ble Apex Court further observed that it is the power of Special Police officer to deal with the offences under the Act, and therefore to investigate into the offence. It was further observed that the Special Police Officer appointed under the Act is competent to investigate the offences under the Act and police officers not specially appointed as Special Police Officer cannot investigate offences under The Immoral Traffic (Prevention) Act 1956.
13) It was held by Hon'ble High Court of Delhi judgment titled as Mumtaj Vs State (Government of NCT of Delhi) 2002 (100) DLT 286 that if the investigation is done by a police officer who is not a special police officer in Immoral Traffic than it is not a question of mere irregularity in the procedure rather it goes to the very root, competent and jurisdiction and the entire proceedings including search, investigation, arrest and prostitution by such investigating officer illegal. The same was CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 11/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 observation of Hon'ble High Court of Delhi in the judgment titled as Raghubir Singh Vs State 2000 (83) DLT 189. In the judgments titled as Bhagti Ram Pandey Vs State (NCT of Delhi) 2016(1) JCC 584, Shaiyara Vs State of NCT of Delhi 2016(5) AD (DEL) 381 and Haseena Vs NCT of Delhi 2016 (2) JCC 1169 the same view was reiterated by Hon'ble High Court of Delhi. In the case in hand the investigating officer namely Inspector Tej Pal Singh was not entrusted with duty of special police officer vide any notification as per section 13 of the Immoral Trafficking (Prevention) Act. As per notification of Government of Delhi, all ACPs, SHOs and ACPs of Crime Branch, Palam Airport and Railways have been designated as special police officer. Even additional SHOs of a police station is not a special police officer (See para 5 of judgment of Bhagti Ram (Supra)). IO Inspector Tejpal Singh was not ACP at that time nor he was having the charge of SHO of any police station. All these facts have been admitted by the IO in the crossexamination. The complainant of the present case is the ACP but he was not the investigating officer. The requirement of the special police officer is of the investigating officer and not of the complainant. Accordingly, the investigation carried out by Inspector Tej Pal Singh, who was not a special police officer under the provisions of Section 13 of Immoral Trafficking (Prevention) Act 1956, makes the entire investigation and the proceedings conducted during the investigation tainted and the accused Kamlesh cannot be held liable for the CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 12/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 offence U/s 4 and 5 of Immoral Trafficking (Prevention) Act 1956. The illegality as to the competence of investigating officer goes to the roots of the present case.
14) The onus and duty to prove the case against the accused were upon the prosecution and the prosecution must establish the charges beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
15) It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 13/14 U/s. 4 and 5 of the ITP Act 1956 CNR No. DLCT020001382004 Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
16) Accordingly, accused Kamlesh Verma is hereby acquitted from the charges framed in the present case. File be consigned to record room subject to compliance of section 437A Cr.PC with the liberty to the prosecution to revive the same as and when accused persons who were declared as proclaimed persons during the trial be apprehended.
KAPIL Digitally signed by
KAPIL KUMAR
KUMAR Date: 2019.10.18
16:10:07 +0530
Announced in open court (Kapil Kumar)
on 18.10.2019 MM5/Central District
Tis Hazari Courts/Delhi.,
CIS No. 289956/16, State Vs. Kamlesh Verma, FIR No. 47/03, PS. Maurice Nagar 14/14 U/s. 4 and 5 of the ITP Act 1956