Delhi High Court - Orders
Phulmai Tamang @ Neha vs State on 7 September, 2022
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 4249/2021
PHULMAI TAMANG @ NEHA ..... Petitioner
Through: Mr. Harsh Kumar, Mr. Junaid Khan,
Ms. Sikha Gogoi, Advs.
versus
STATE ..... Respondent
Through: Mr. Aashneet Singh, APP for State,
Ms. Astha, Adv. DHCLSC
SI Giriraj, PS Kamla Market
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 07.09.2022
1. This is an application seeking bail in FIR No. 186/2017 registered at PS Kamla Market u/s 363/366A/368/342/370/370A/372/34 IPC & 17 POCSO Act & 23 JJ Act & 3/5/7 ITP Act.
2. The brief facts of the case are that the prosecutrix is a native of Nepal and after her parents died in an earthquake she was being looked after by the Gram Vikas Samiti of the Village. She was brought to Delhi by one native of Nepal for getting her a job but instead she was sold to a lady namely Sita who took her to Kotha No. 56 GB Road and sold the prosecutrix to the Applicant herein who forced her into sexual relationships with customers after administering intoxicating injections. On 21.07.2017 however, the prosecutrix managed to escape and an FIR was registered against the Applicant.
3. As per the FIR, after she was sold the prosecutrix was forced to serve 20 men in one day. Despite her repeated protest and resistance, she was still made to work. It is also stated that in addition to prostitution, she was also Signature Not Verified Digitally Signed byAMIT ARORA Signing Date:20.09.2022 19:00:54 physically abused.
4. The FIR also stated that at GB Road, the prosecutrix was in the custody of Neha and it was Neha who made her work as a prostitute.
5. Mr. Harsh Kumar, learned counsel for the applicant has stated that the victim has varied her statement everywhere. He states that in her statement 161 Cr.P.C , examination in chief and cross-examination, the stand of the prosecutrix has not been consistent. He further states that the applicant has already suffered incarceration for 3 and a half years i.e. 23.07.2017 to 21.12.2020. He states that all material witnesses have been examined and for the last 1 and a half years, the applicant has been on interim bail on the ground that her small child has got Anal Pruritus as well as typhoid and there is no one else to take care of the child.
6. Mr. Singh, learned APP for State and Ms. Astha appearing for the prosecutrix state that there are minor contradictions in the statement 161 Cr.P.C., 164 Cr.P.C. and the cross-examination.
7. I am of the opinion that the factum that her parents had gone missing or died or that she was married to one Lalley in the year 2015 or not, are contradictions of a minor nature.
8. The ingredients of the offence for human trafficking in the present case are made out clearly.
"370. Trafficking of persons
1. Whoever, for the purpose of exploitation, (a) recruits, (b) transports,
(c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First.--using threats, or Secondly.-- using force, or any other form of coercion, or Thirdly.-- by abduction, or Fourthly.-- by practising fraud, or deception, or Fifthly.-- by abuse of power, or Sixthly.-- by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control Signature Not Verified Digitally Signed byAMIT ARORA Signing Date:20.09.2022 19:00:54 over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking."
9. A bare perusal of Section 370 IPC reveals that trafficking of a person can only be said to have been committed when the same is done with the purpose of exploiting the same by various methods. Section 370 IPC in particular, states that whoever recruits / receives / transports / harbours / transfers a person by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited/received/transported/harboured/transferred is said to commit the offence of trafficking. In the instant case, the chargesheet categorically reveals that the prosecutrix was harboured by the applicant with the intention to exploit. The applicant then detained her for the illegal purposes, caused mental or physical suffering and made her work as a sex worker, serving 20 men in a day. She further administered drugs to her in a manner to coerce her into having non- consensual relationship. A bare perusal of the statement u/s 161 and u/s 164 make it clear the prosecutrix was abused, exploited and tortured by several people. The applicant is one key player who brings small unsuspecting children from Nepal and forces them into prostitution.
10. In the present case, the gravity of the offence is enormous.
11. My attention has been drawn to an Aadhar Card of the applicant to show her date of birth as 04.09.1993 and she was 23 years when she came to Delhi. Mr. Singh states that no reliance can be placed on the Aadhar Card as Signature Not Verified Digitally Signed byAMIT ARORA Signing Date:20.09.2022 19:00:54 the birth certificate has been verified from Nepal and on the date of offence the prosecutrix was a minor.
12. The charges in addition to POCSO are also under Immoral Trafficking (Prevention) Act and more particularly Section 363/366A/368/342/370/370A/372/34/ IPC & 17 POCSO Act & 23 JJ Act & 3/4/5/6/7 ITP Act. The ingredients of the offence are made out.
13. In Vishal Jeet v. Union of India, (1990) 3 SCC 318 : 1990 SCC (Cri) 482 at page 320, the supreme court with regards to trafficking had noted
6. It is highly deplorable and heartrending to note that many poverty stricken children and girls in the prime of youth are taken to 'flesh market' and forcibly pushed into the 'flesh trade' which is being carried on in utter violation of all canons of morality, decency and dignity of humankind. There cannot be two opinions--indeed there is none--that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.
14. The nature of the offence is grave and serious and they are in my considered opinion offences against society. The allegations contain specific overt acts on behalf of the applicant. Hence, the factum that the applicant has already been in jail for 3 and a half years and material witnesses examined will not be relevant in this case.
15. For the said reasons, I am not inclined to entertain the present application and the same is dismissed.
16. In view of the BAIL APPL. 4249/2021, the other bail application namely 547/2021 is also dismissed.
JASMEET SINGH, J SEPTEMBER 7, 2022/dm Click here to check corrigendum, if any Signature Not Verified Digitally Signed byAMIT ARORA Signing Date:20.09.2022 19:00:54