Delhi District Court
State vs . Danish Etc. Jain on 10 August, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 368/06
PS - Kalkaji ANUBHAV
U/s. 3/4/5/8 ITP Act
State Vs. Danish etc. JAIN
JUDGMENT
Digitally signed by ANUBHAV JAIN A. SL. NO. OF THE CASE : 400/2/12 Date: 2018.08.10 B. DATE OF INSTITUTION : 23.11.2006 22:41:11 +0530 C. DATE OF OFFENCE : 20.04.2006 D. NAME OF THE : ACP R.K. Bansal COMPLAINANT E. NAME OF THE ACCUSED : 1) Danish (PO vide order dt. 31.05.2014)
2) Arshad Ali S/o Abdul Wahi Ahmed
3) Abdul Hakim S/o Ali Hussain
4) Madhav Biswas (PO vide order dt. 10.11.2016)
5) Muskan Tiwari (PO vide order dt. 19.12.2015)
6) Ritu (PO vide order dt. 25.07.2014)
7) Mansi W/o Gautam Mehra 2
8) Aarti W/o Ajeet Gupta F. OFFENCE COMPLAINED OF : U/s 3/4/5/8 ITP Act G. PLEA OF ACCUSED : Pleaded not guilty H. FINAL ORDER : Acquittal I. DATE OF FINAL ORDER : 10.08.2018 Brief Statement of Reasons for Decision :
1. The present accused persons are produced before the court to stand trial for the offence u/s 3/4/5/8 ITP Act.
2. In brief, facts of the case of the prosecution are that on 20.04.2006 ACP R.K. Bansal received a secret information about prostitution racket being carried out at H. No. 59/13, KBlock, Kalkaji upon which ACP called SI Sanjiv, SI Balbir, SI R.N. Chaudhary, Ct. Manoj, Ct. Harish, Ct. Vir Sigh and W/Ct.
Nutan in his office and a DD No. 22 dt. 20.04.2006 was entered into. It is further stated that thereafter all the abovesaid persons reached at KBlock, Kalkaji in Govt. Vehicle bearing no. DL1CF0516 at 9.15 pm. It is further stated that ACP asked some public persons to join in the investigation, however none has agreed and ACP prepared a raiding party consisting of abovesaid police officials. It is further stated that SI Sanjiv Sharma was made a decoy customer and two notes of denomination 500/ were handed over to decoy customer duly signed by ACP. Further SI Balbir was made shadow witness and he was asked to give signal after completion of negotiation by raising his right hand. It is further stated that at about 10.00 pm on receiving the signal 3 from SI Balbir, ACP alongwith raiding party entered into the basement of K Block, H. No. 59/13 wherein he found SI Sanjiv and four male and four females. SI Sanjiv informed that in order to crack the deal for prostitution he entered into the basement where he found accused Abdul, Mansi and Arshad and Mansi quoted different rates for different services. It is further stated that accused Abdul and Mansi further informed that accused Arshad, Danish and Madhav will also have a share of Rs. 100/ in the said deal as they will provide different services etc. It is further stated that accused Abdul and Mansi seek charges of Rs. 500/ for the girl and another Rs. 500/ for themselves. It is further stated that accused Abdul and Mansi called three girls namely Muskan, Ritu and Aarti and all the 3 girls started making indecent gestures towards the decoy customer. It is further stated that decoy customer chooses Ritu and handed over said two notes of Rs. 500/ to Abdul.
It is further stated that upon the personal search of accused Abdul said notes were recovered from the pocket of his shirt and same were seized and seal in an envelope bearing the seal of DS. It is further stated that all the accused persons were apprehended. IO recorded statement of the witnesses, got the medical of the accused persons conducted and after completion of investigation chargesheet was filed before the court u/s 3/4/5/8 ITP Act against the accused persons.
3. Accused Arshad, Abdul and Mansi were charged u/s 3/4/5 ITP Act while accused Aarti were charged u/s 8 ITP Act by Ld. Predecessor Court vide order dt. 05.06.2013 to which accused persons pleaded not guilty and claimed trial.
4. It is further pertinent to state in here that accused Danish was declared 4 absconder by Ld. Predecessor Court vide order dt. 31.05.2014, accused Ritu was declared absconder vide order dt. 25.07.2014, accused Muskan was declared absconder vide order dt. 19.12.2015 and accused Madhav was declared absconder vide order dt. 10.11.2016.
5. Prosecution in order to prove its case has examined following witnesses:
5.1 PW1 Dr. Rakesh Bansal deposed that on 20.04.2006, he was posted as ACP/ ARC/Crime branch and on that day, at about 07:45 pm he received a secret information about running of sex racket at premises 59/13, basement, KBlock, Kalkaji. He further deposed that he entered the said information in DD vide no.22 dated 20.04.2006 and constituted a police party consisting of SI Sanjeev Sharma, SI R.N Chaudhary, SI Balbir Singh, Cts. Harish, Manoj, Nootan and Harish. He further deposed that thereafter they proceeded towards the stated site in official vehicle no. DL1CF0516 make Toyota Qualis and police party tried to rope in public witnesses but nobody was ready to join in the investigation. He further deposed that at around, 09:00 pm, SI Sanjeev Sharma was sent as a decoy customer with two presigned currency notes of Rs.500/ vide handing over memo Ex.PW1/A, and SI Sanjeev was subjected to his search by SI Balbir Singh. He further deposed that SI Balbir was given instructions to call other raiding party members by raising right hand after he receives confirmation from SI Sanjeev and after some time, at around 09:45 pm, raiding party received signal from SI Balbir regarding commission of crime. He further deposed that he alongwith 5 other raiding party members reached the basement of 59/13, KBlock, Kalkaji and he found SI Sanjeev with four accused boys and four accused girls who were identified as Abdul Hakim, Arshad Ali, Mansi, Aarti, Danish, Madhav Biswas, Muskan and Ritu (since POs). He further deposed that Accused Abdul Hakim was subjected to search and 2 currency notes of Rs. 500/ beaing hes signature were recovered from his left pocket of shirt and same were seized vide seizure memo Ex.
PW1/B and sealed with the seal of "BS". He further deposed that he got prepared rukka vide Ex.PW1/C, and got the FIR registered through Ct. Manoj. He further stated that therafter investigation was handed over to R.N. Vashisht. He identified the accused persons correctly in the court.
5.2 PW2 HC Manoj deposed similar in the lines of PW1 Dr. Rakesh Bansal and same is not being reiterated here for the sake of brevity.
5.3 PW3 ASI Rajpal proved the FIR Ex. PW3/B. 5.4 PW4 W/SI Nutan deposed that on 20.04.2006 he was posted at R.K. Puram, Sec8, Crime Branch and on that day ACP Dr. R.K. Bansal called them and she alongwith SI Sanjeev, SI Balbir, Ct. Harish, Ct. Veer Singh and other police officials joined the raiding party on the direction of ACP. She further deposed that thereafter they went to the spot i.e. KBlock, Kalkaji where ACP gave two notes of Rs. 500/ (signed by ACP) and thereafter SI Sanjeev and SI Balbir went inside the spot / basement as decoy customer. She further deposed that after sometime on their signal they went inside the house and found 4 ladies and 34 6 gents were already present there. She further deposed that thereafter on the direction of ACP, she searched all ladies namely Ritu, Aarti, Mansi and Muskan and recovered some gold articles like ring, earings, chain and mobile phone. She further deposed that thereafter the said items were seized and sealed by the ACP vide seizure memo already Ex. PW1/A and PW1/B and accused persons namely Muskan Tiwari, Ritu Lakra, Mansi and Aarti were arrested vide arrest memos Ex. PW4/A, PW4/B, PW4/C and PW4/D and Personal search of the accused persons was conducted vide memos Ex. PW4/E, PW4/F, PW4/G and PW4/H. She further deposed that thereafter accused persons were taken to Safdarjung Hospital for medical examination and thereafter accused persons were taken to the lockup at RK Puram. Witness correctly identified accused persons Mansi and Aarti. Further identity of accused Abdul Hakim not disputed by the counsel.
5.5 PW5 Inp. Sanjeev Kumar beside deposing similarly in the lines of PW1 and PW2 deposed that Insp. R.N. Vashishth reached at the spot and all the accused were handed over to Insp. R.N. Vashisht by ACP and he was informed about the facts of the case. He further deposed that Insp. R.N. Vashisht prepared the site plan at the instance of ACP and recorded his statement. He further deposed that thereafter Ct. Manoj reached the spot with copy of FIR and the accused persons were arrested after their personal search and they were taken for medical examination at Safdarjung hospital and thereafter were taken to lockup. Witness correctly identified accused Aarti, Mansi and Arshad.
7Further identity of accused Abdul Hakim was not disputed by the counsel.
5.6 PW6 SI Balbir Singh deposed similar in lines of PW1 and PW2 and same is not being reiterated here for the sake of brevity.
5.7 PW7 Retd. ACP Ram Niwas Vashisht deposed that on 20.04.2006 he was posted as Inspector in Crime Branch Sec8, R.K. Puram Delhi and on that day at about 10.15 pm he was present at his office, ACP R.K. Bansal called him on telephone and instructed him to reach at spot i.e. H. No. 59/13, KBlock, Lajpat Nagar. He further deposed that he reached there on my private vehicle where he met ACP R.K. Bansal, SI Sanjeev Sharma, SI Balbir Singh, SI R.N. Chaudhary, Ct. Manoj, Ct. Veer Singh, Lady Ct. Nutan and other police staff and accused persons were also apprehended. He further deposed that thereafter ACP sent the tehrir alongwith Ct. Manoj to PS Kalkaji for registration of FIR and Ct. Manoj got the FIR registered. He further deposed that after registration of case, investigation was marked to him and thereafter ACP R.K. Bansal handed over him one sealed envelope with the seal of 'BS' and handing over memo of currency and seizure memo Ex. PW1/A and PW1/B. He further deposed that he wrote the FIR number and other details in Ex. PW1/A at point A to A1 and PW1/B at mark A1 to A2 and on the envelope and prepared the site plan Ex. PW7/A. He further deposed that after interrogation of accused he arrested and conducted search of accused persons vide memos Ex. PW4/A to PW4/H and memos Ex. PW7/B to PW7/J. He further deposed that thereafter the case property was deposited by Ct. Manoj in Malkhana at PSKalkaji and he prepared the body inspection memos of accused persons Ex. PW7/K1 to PW7/K8. He further deposed that 8 therefater he got conducted medical examination of accused persons and they were sent to lock up at PSR.K. Puram. He further deposed that he recorded the statement of witnesses u/s 161 CrPC. He correctly identified accused persons namely Arshad Ali, Abdul Hakim, Mansi and Aarti in court.
5. After completion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded on 24.05.2016 wherein all the accused persons denied all the allegations as leveled against them by the prosecution. They further chooses not to lead any defence evidence and the matter was fixed for final arguments.
6. I have heard Ld. APP for the state and counsels for the accused persons 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) That on 20.04.2006 Inspector ACP R.K. Bansal received a secret information regarding running of prostitution racket at H. No. 59/13, K Block, Kalkaji.
b) That thereafter ACP R.K. Bansal prepared a raiding party consisting of SI Sanjiv, SI Balbir, SI R.N. Chaudhary, Ct. Manoj, Ct. Harish, Ct. Vir Sigh and W/Ct. Nutan and recorded a DD No. 22B.
c) That the raiding party reached at spot at 9.15 pm and SI Sanjiv Sharma was made as decoy customer and two notes of denomination 500 each were handed over to him by ACP R.K. Bansal and SI Balbir was appointed as shadow witness.9
d) That decoy customer and shadow witness reached at spot where they met accused persons and the decoy customer handed over the said two notes of denomination 500 to accused Abdul and chooses the girl namely Ritu.
e) That on the signal of shadow witness, raiding party reached the spot and apprehended all the accused persons and lodged the FIR against them.
8. 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) No public witnesses was joined in the investigation by the 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 DD No. 22 was never brought on record or proved by the prosecution.
d) That there are contradictions in the testimony of prosecution witnesses.
e) That provision of sec. 157 Cr.P.C are not complied with by the police officials.
9. In the present case in hand, the allegations against accused Abdul, Arshad and Mansi are that they in furtherance of their common intentions were found inducing and influencing girls for the purpose of prostitution and 10 for the same, Abdul received a sum of Rs. 1,000/ from the decoy customer namely SI Sanjiv. Further allegations against accused Aarti are that she was making indecent gestures and endeavors to attract attention of decoy costumer for purpose 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, 11 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 12 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.
7. Prostitution in or in the vicinity of public places.
-- 1[(1) Any 2[person], who carries on prostitution and the person with whom such prostitution is carried on, in any premises--
(a) which are within the area or areas, notified under subsection (3), or,
(b) which are within a distance of two hundred metres of any place of public religious worship, educational in stitution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months].
3[(1A) Where an offence committed under subsection (1) is in respect of a child or minor, the person commit ting the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
13Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.] (2) ......5
[(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the official Gazette, direct that prostitution shall not be car ried on in such area or areas as may be specified in the notification.
(4) Where a notification is issued under subsection (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notifi cation with reasonable certainty.
(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued].
10. 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 14 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 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 15 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, 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.
168. 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 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 17 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 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.
11. 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 18 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.
16. 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 19 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.
12. 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 Abdul, Arshad Ali and Mansi, in furtherance of their com mon intention, produced 4 girls for prostitution to decoy customer namely SI Sanjiv and in lieu of the same he received Rs. 1,000/ from the decoy cus tomer.
13. It was upon the prosecution to prove that the girls alleged to be pro duced by accused Abdul, Arshad and Mansi to the decoy customer were pros titute as per section 2f of ITP Act. It is pertinent to state in here that the shadow witness SI Sanjiv Sharma never stated during the course of his depo sition that any sort of alluring or indecent gestures were being made by Aarti or other accused persons. As such there is nothing on record brought by the prosecution in order to show that any overt act was being done by the ac cused 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 inter course, merely handing over the money is hardly sufficient to prove that the money was received for the purpose of prostitution, the prosecution has failed 20 to show that the said girls squarely falls within the provision of section 2f of ITP Act.
14. 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 rele vant to 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.
15. 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. note of denomination 1,000/ which were recovered from the possession of accused persons were kept 21 safely in the Malkhana. None of the witness or the IO for prosecution have stated as to where the said notes so seized were kept or as to whether they were ever deposited in the Malkhana. Furthermore the prosecution has not adduced any witness from the Malkhan in order to show or prove that the said notes were kept safely in sealed condition in the 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 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 two notes of denomination 500/ from the possession of accused persons was an important piece of evi dence as it is the case of prosecution that accused persons were supplying the girls for prostitution against the consideration. As observed above that the 22 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.
16. 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 decoy customer i.e. SI Sanjiv Sharma was never corroborated by any independent witness and same was corroborated by the shadow witness who was also the police official and in the absence of corroboration by any independent witness, the said testimony can not be relied upon.
2317. Considering the law and facts stated above, prosecution has failed to prove its case beyond reasonable doubts and all the accused persons are ac quitted for the offences they are charged for.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 10.08.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 23 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI