Delhi District Court
State vs . Prema @ Neelam & Ors. on 5 July, 2013
"IN THE COURT OF SHRI SUNIL GUPTA, MM (NE)
KARKARDOOMA COURTS, DELHI"
FIR No. : 98/99
U/s : 3,4,5 & 8 I.T.P Act
P.S : Dilshad Garden
State Vs. Prema @ Neelam & Ors.
Unique Case ID No. 02402R0006541999
J U D G E M E N T
1. Sl. No. of the case : 02/13(RBT) 2. Date of institution of the case : 15.11.1999 3. Name of complainant : State 4. Date of commission of offence : 05.04.1999
5. Name of accused, parentage & address : 1) Prema @ Neelam w/o Sh. Ram Manohar r/o E 123 A, GTB Enclave, Delhi.
: 2)Sunita w/o Ravinder @ Nikke r/o H.No. 733, Nai Basti Bhim Nagar, Meerut, U.P : 3) Nagma w/o Md. Shafiq r/o L183, Sunder Nagri, Delhi presently residing at L124, Sunder Nagri, Delhi.
: 4) Kumari Asha d/o Sh.
Devi Ram ( since expired )
6. Offence complained of or proved : 3,4,5 & 8 of I.T.P Act
7. Plea of accused : Accused pleaded not guilty
8. Final order : Accused Prema convicted FIR No. 98/99 1 of 19 u/s 4 ITP Act 1956 : Accused Sunita & Nagma acquitted
9. Date of which order was reserved : 22.06.2013
10.Date of pronouncement : 05.07.2013 BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of the prosecution is that on 05.04.1999 at about 8.30 pm at Flat No. E123A, G.T.B. Enclave, Delhi, accused namely Prema @ Neelam ( hereinafter referred to as Prema ) was found along with accused Sunita, Nagma and Asha. It is further alleged that they all were running a prostitution racket at the above mentioned premises and accused Prema was acting as a tout charging commission from the customers for the services to be offered by the coaccused persons namely Sunita, Nagma, and Asha. For unearthing the racket being run, HC N.K. Rao was sent as a decoy customer who allegedly paid Rs. 500/ to the accused Prema which were subsequently recovered from her possession, after the predetermined signal. Subsequently, all the four accused persons were arrested by the police officials after registration of the FIR No. 98/99, P.S. Dilshad Garden, Delhi for the offences under Section 3,4,5 I.T.P Act. The investigation was completed and the chargesheet was filed in the Court against all the accused persons on 15.11.1999.
FIR No. 98/99 2 of 19
2. After supplying of documents and hearing the accused persons, Ld. Predecessor vide his order dated 14.01.2008 was pleased to frame a separate charge u/s 3,4, 5 ITP Act against accused Prema @ Neelam while separate charge under section 8 ITP Act against accused Sunita, and Nagma to which they pleaded not guilty and claimed trial.
Accused Asha died during the trial and the case against her was abated vide order dated 08.08.2006.
3. Prosecution has examined as many as seven witnesses in order to substantiate its case.
To prove its case prosecution has examined first witness as PW1 HC N.K. Rao. He has deposed as under : " On 05/04/1999, I was posted at PS Dilshad Garden, Delhi. I alongwith SI K.P. Singh, Ct. Sudhir, Ct. Sunil (Driver) and Ct. Jai Parkash was on area patrolling and we were present at GTB Enclave, Epocket. One Secret Informer informed the IO that prostitution is going on at House No. E123/A, GTB Enclave at the house of Prema. Accused persons can be arrested if a raid is conducted. IO requested some passersby to join the investigation by telling the facts of the secret information but no one joined the investigation and left the spot FIR No. 98/99 3 of 19 by telling their personal difficulty. Then without wasting further time, Inspt. S.N. Pandey under whose supervision the raid was conducted, constituted the raiding party consisting of above mentioned officials. I was deputed as decoy customer in the civil uniform and IO gave me five currency notes of Rs. 100/ denomination duly signed by the IO. After taking my personal search and gave the same to me vide handing over memo Ex. PW1/A bears my sig t point A and I was directed to struck a deal with the woman. Ct. Sudhir was deputed as a shadow witness. At about 8.30 p.m, I reached at the aforesaid address where one lady namely Prema met me and she stated that she had the girls and an amount of Rs. 500/ would have to be given for a girl. Prema produced three girls before me for this purpose whose name later on revealed as Asha, Nagma and third lady whose name I do not remember at the moment. I identify all the three accused lady present in the Court. I can identify the fourth lady if shown to me. I chose Nagma for the prostitution and I gave an amount of Rs. 500/ to accused Prema for the purpose of prostitution. Pre determined signal was given and thereafter SI K.P. Singh, Ct. Sudhir, Ct. Jai Parkash also came at the spot. An amount of Rs. 500/ was recovered from accused Prema by the IO and the currency note was taken into police FIR No. 98/99 4 of 19 possession and the same was kept in a pulanda and was duly sealed with the seal of KPS. The seal after use was given to Ct. Jai Parkash. The pulanda was taken into police possession vide seizure memo, Ex. PW1/D bears my sig at point A. Thereafter IO prepared tehrir and gave the same to Ct. Jai Parkash for getting the case registered. After sometime, Ct. Jai Parkash came back at the spot after getting the case registered and gave copy of FIR and original tehrir to the IO. IO prepared site plan, etc. at the spot. Thereafter accused were brought to the PS and IO recorded the statement of witnesses. This witness has identified the case property i.e five currency notes ex. P1 to P5. The said witness has been cross examined by Ld. APP for the State as well as Ld. Counsel for the defence.
PW2 is ASI Renu. She deposed that on 05.04.1999, during night time, she was present at the PS and accused were brought at the PS and she conducted the personal search of the accused persons namely Prema, Sunita, Renu and Asha and IO prepared their personal search memo Ex. PW2/A to PW2/D, bears her signature at point A. She deposed that she identify two accused persons (witness pointed towards accused, Prema and Nagma), but she cannot identify the third accused. She was unable to tell even the names of two accused which FIR No. 98/99 5 of 19 were identified by her. The said witness has been cross examined by Ld. APP for the State as well as Ld. Counsel for the defence.
PW3 is ASI Jai Raj Singh, the DO. He has proved the copy of FIR Ex. PW3/A and endorsement on rukka PW3/B. The said witness has been cross examined by the accused.
PW4 is Ct. Jai Parkash. He is another member of the raiding party and has supported the prosecution story. He has deposed more or less on the similar lines of PW1. The said witness has been cross examined by Ld. counsel for the defence.
4. PW5 is Ct. Sudhir. He has deposed as under : "On 05.04.99, I was posted at PS Dilshad Garden as Ct. On that day I along with SHO, SN Pandey, SI KP Singh, Ct. Jai Prakash, HC NK Rao and driver Ct. Sunil was on patrolling in vehicle Tata
407. When during the course of patrolling we were present at E pocket, GTB enclave, a secret informer met Insp. SN Pandey and informed that some girls are present in the House of Prema for the purpose of prostitution work ( vyshya vriti) and if raid is conducted, they can be apprehended. SHO formed a raiding party and requested 8/10 passersby to join the same but none had agreed and went away without disclosing their names and addresses. Ct. NK Rao and me both were in civil uniform were deployed as decoy customer and shadow witness. Five currency notes of Rs. 100/ each after having given initials by the Insp. SN Pandey were given to Ct. NK Rao and was directed to go to the house of Prama and make deal with regard to girl/lady present there. I was sent as a shadow witness with the FIR No. 98/99 6 of 19 direction to hear the conversation with Ct. NK Rao and the person who deals for the same. I was also instructed to give signal by furling hand on my head after hearing the conversation and when the said deal is over. At about 8:30 PM we reached at house of Prema and accused Prema now present in court ( correctly identified) produced three ladies before Ct. NK Rao, and talked regarding deal which was struck for a total amount of Rs. 500/. Ct. NK Rao had chosen accused Nagma now present in court ( correctly identified). It was also settled by accused Prema that out of Rs. 500/, Rs. 250/ would be given to accused Nagma and Rs. 250/ would remain accused Prema. I accordingly gave signal to the raiding party by having firled my hand over my head. The members of raiding party reached at the spot and got recovered Rs. 500/ ( five notes x Rs. 100/ each) from the right hand of accused Prema which were bearing the initials of SNP. The names of females present there we came to know as Sunita and Asha along with Nagma. Accused Aasha is not present today in the court. I identified accused Sunita now present in court ( correctly identified). IO prepared a pulinda and put all the five currency notes of Rs. 100/ each into a white colour envelope and duly sealed with seal of SNP and was taken into possession vide memo already Ex. PW1/B, which bears my signatures at point B. All the accused persons were arrested after registration of FIR and after arrival of lady HC Renu on the spot. IO recorded my statement and we came back to PS and all the four accused persons put in the lock up of PS Shahdara."
PW6 is ACP (Retired) Surya Narayan Pandey, the IO of the case and PW7 is Inspector Khemender Pal who was a member of the raiding party and has supported the prosecution story. They have also deposed more or less on the similar lines of PW1, PW4 and PW5. Ld. FIR No. 98/99 7 of 19 Defence Counsel has crossexamined these witnesses at length.
5. After the completion of the prosecution evidence of accused persons was recorded on 11.04.2013 wherein they submitted that they have been falsely implicated in this case. They did not lead any defence evidence.
6. I have heard the arguments from both the sides and have perused the case file carefully.
Ld. Defence Counsel has argued that there are various contradictions in the case put forward by the prosecution. He has argued that as per PW1 HC N.K. Rao, the police officials were on patrolling in a public vehicle on the relevant day whereas as per PW7 K.P. Singh, the police officials were in government vehicle. He has further argued that as per PW1 HC N.K. Rao, the pullanda containing the currency notes allegedly recovered from the accused was sealed with the seal of KPS whereas other PWs mentioned the seal as SNP. Also, as per PW2 ASI Renu, the personal search of the accused persons was conducted at the P.S by her which creates doubt in the case of the prosecution. Further, he has argued that the information regarding the arrest of the accused persons was not given to the relatives of all the accused persons. He has prayed that due to FIR No. 98/99 8 of 19 aforementioned contradictions/doubts, the accused persons are entitled to acquittal.
On the other hand, Ld. APP for the State has submitted that the prosecution has proved its case beyond reasonable doubts. He has argued that the PW1 HC N.K. Rao initially mentioned the seal by which the pullanda containing the recovered currency notes was sealed as KPS but subsequently, when he was crossexamined on this point by the APP with the permission of the Court, he correctly mentioned the seal as SNP. Regarding remaining contradictions pointed by Ld. Defence Counsel, he has argued that these contradictions are minor in nature and does not affect the case of the prosecution.
It is to be seen that accused Prema is charged with commission of offences under Section 3,4, & 5 ITP Act 1956. Accused Sunita and Nagma are charged with commission of offence under Section 8 ITP Act 1956. Now, the Court proceeds to examine each offence along with evidence on record separately to see as to what offence, if any, has been proved.
Section 3 Immoral Traffic (Prevention) Act provides as under
: FIR No. 98/99 9 of 19 Punishment for keeping brothel or allowing premises to be used as a brothel.(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a terms of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
(2)Any person who
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel.................
The case of the prosecution is that on 05.04.1999 on receipt of a secret Information, police officials i.e the then SHO Inspector S.N. Pandey, Ct. Sudhir, Ct. Jai Prakash, Ct. Sunil, Ct. N.K. Rao and SI K. P. Singh who were on patrolling duty went to the house of of accused Prema i.e H.No. E123/A, GTB Enclave where allegedly prostitution racket was being run. PW1 HC N.K. Rao, was deputed as decoy customer in the civil uniform and was given five currency FIR No. 98/99 10 of 19 notes duly signed by the IO of Rs. 100/ each vide handing over memo Ex. PW1/A after taking his personal search. He was directed to struck the deal with the woman and the shadow witness Ct. Sudhir was also deputed.
PW1 HC N.K. Rao has testified as under : "...........One Secret Informer informed the IO that prostitution is going on at House No. E123/A, GTB Enclave at the house of Prema...................At about 8.30 p.m, I reached at the aforesaid address where one lady namely Prema met me and she stated that she had the girls and an amount of Rs. 500/ would have to be given for a girl. Prema produced three girls before me for this purpose whose name later on revealed as Asha, Nagma and third lady whose name I do not remember at the moment. I identify all the three accused lady present in the Court. I can identify the fourth lady if shown to me. I chose Nagma for the prostitution and I gave an amount of Rs. 500/ to accused Prema for the purpose of prostitution........."
PW5 Ct. Sudhir was the shadow witness. He has testified as under : " ..............during the course of patrolling we were present at Epocket, GTB enclave, a secret informer met Insp. SN Pandey and informed that some girls are present in the House of Prema for the purpose of prostitution work ( vyshya vriti) and if raid is conducted, they can be apprehended ..................At about 8:30 PM we reached at house of Prema and accused Prema now present in court ( correctly identified) produced three ladies before Ct. NK Rao, and talked regarding deal which was struck for a total amount of Rs. 500/. Ct.
FIR No. 98/99 11 of 19 NK Rao had chosen accused Nagma now present in court ( correctly identified). It was also settled by accused Prema that out of Rs. 500/, Rs. 250/ would be given to accused Nagma and Rs. 250/ would remain accused Prema............"
PW4 is Ct. Jai Prakash who was member of the raiding party. He has corroborated the testimony of PW1 & PW5 in following words.
".............. At Epocket, GTB Enclave, a secret informer met Insp. SN Pandey and informed that prostitution work ( vyshya vriti) was going on in house no. E 123A, GTB Enclave i.e the house of Prema. ..................At about 8:50 PM, Ct. Sudhir gave signal by furling his hand on his head, we all reached there and Ct. NK Rao told that he had given those Rs. 500/ to Prema who produced three girls and he further narrated that he had chosen Nagma i.e one of the three girls. Those Rs. 500/ ( five notes X Rs. 100/each) were recovered from the right hand of accused Prema which were bearing the initials of SNP............."
PW7 is Inspector K.P.Singh, he was also a member of the raiding party. He has testified as under : ".........Secret informer met Inspector S.N. Pandey and informed that at H.No. E123A, G.T.B Enclave, a lady namely Prema is running a prostitution racket and if raided she could be apprehended red handed............."
PW6 ACP(Retired) S.N. Pandey is the IO of this case. He has deposed as under : FIR No. 98/99 12 of 19 ".............when during the course of patrolling we were present at Epocket, GTB enclave, I received a secret information that at the house no. E123A, GTB Enclave belonging to one Prema, prostitution work was going on and if raid is conducted, the wrong doers may be apprehended................"
Perusal of the aforementioned evidence shows that it has not come on record as to who was the owner/tenant/lessee/occupier/person in charge of the premises in question i.e H.No. E123A, GTB Enclave, Delhi. Although, it has been deposed by the witnesses that the premises in question belongs to the accused Prema but apart from making this oral submission, no other material has been brought on record. It has also not come on record as to whether the prostitution was being done at the premises in question before the day of alleged offence i.e 05.04.1999 also. This fact is necessary to be proved because in the absence of the same, this Court is of the view that the premises in question cannot be termed a brothel as per definition provided under Section 2(a) ITP Act 1956.
Section 2(a) ITP Act, 1956 provides as under : "brothel" includes any house, room, [conveyance] or place or any portion of any house, room, [conveyance] or place, which is used for purposes [ of sexual exploitation or abuse] for the gain of another person or for the mutual gain of two or more prostitutes.
Perusal of this definition suggests that single instance of FIR No. 98/99 13 of 19 prostitution will not in itself make any of the premises mentioned therein a brothel. As no previous instance of prostitution at the premises in question has been proved, so the premises can't be termed a brothel. So, in view of the Court, the prosecution has failed to prove beyond reasonable doubt the offence under Section 3 ITP Act against the accused Prema.
Now Section 4 Immoral Traffic (Prevention) Act provides as under : Punishment for living on the earning 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 [ 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 [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].
[(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 her prostitution; or (c ) to be acting as a tout or pimp on behalf of a prostitute, It is shall be presumed, until the contrary is proved, that such person FIR No. 98/99 14 of 19 is knowingly living on the earning of prostitution of another person within the meaning of subsection (1).] The deposition of the witnesses is not being reproduced here for the sake of brevity. The perusal of the evidence which has come on record suggests that it was accused Prema who asked Rs. 250/ as commission for the services to be offered by the remaining coaccused persons. Also, it was she who had shown the girls to the decoy customer HC N.K. Rao for the purpose of prostitution.
Now, as per the Section 4 (2)(c) ITP Act, 1956 mentioned above, there is a presumption that in case any person over the age of 18 years is acting as tout or pimp on behalf of a prostitute then it shall be presumed that such person is knowingly living on the earning of another person. The burden to prove otherwise lies on the accused. In this case, it is not disputed that the accused Prema was not below the age of 18 years on the day of alleged offence i.e 05.04.1999. The evidence on record shows that accused Prema was acting as a tout for the accused Asha ( since expired), Sunita and Nagma. No explanation whatsoever has been provided by the accused Prema regarding the same and hence due to the presumption mentioned above, this Court is of the view, that it stands proved that on 05.04.1999 at the premises i.e E123A, GTB Enclave, Delhi, accused FIR No. 98/99 15 of 19 Prema was living on the earning of prostitution of accused Asha( since expired), Nagam and Sunita.
Section 5 of Immoral Traffic (Prevention) Act reads as under : Procuring, inducing or taking [Person] for the sake of prostitution(1) Any person who
(a) procures or attempts to procure a [Person] whether with or without [his] consent, of the purpose of prostitution ; or
(b) induces a [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; or ( c ) takes or attempts to take a [Person] or causes a [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 [Person] to carry on prostitution; {shall be punishable on conviction with rigorous imprisonment for a term of not less then 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 fourteen years..................
Here again the evidence is not being reproduced for the sake of brevity.
Perusal of the evidence on record shows that the decoy customer i.e PW7 HC N.K. Rao has himself gone to the premises in FIR No. 98/99 16 of 19 question. It is not the case of the prosecution that any of the three ladies namely Sunita, Nagma and Asha ( since expired) allegedly involved in the prostitution was minor on the day of offence. It is also not the case of the prosecution that the ladies involved in the prostitution were procured or were induced to carry on prostitution. It appears that all the three ladies found at the premises were there by their own free will, and there does not seem any inducement or procurement on the part of the accused Prema. So, this Court is of the view that no offence under Section 5 of ITP Act is made out against accused Prema.
Lastly, Section 8 Immoral Traffic (Prevention) Act provides as under: 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, willful 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 endeavours to attract the attention of, any person for the purpose 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 FIR No. 98/99 17 of 19 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:
[Provided that where an offence under this section is committed by a man, he shall by punishable with imprisonment for a period of not less than seven days but which may extend to three months.] Perusal of this Section clearly brings out following two things :
1) Seduction for the purpose of prostitution is punishable if the same is done by words, gestures or willful exposure of any person only when same is done in any public place or within sight of, and in such manner as to be seen or heard from, any public place.
2) Solicitation for the purpose of prostitution is punishable only if same causes obstruction or annoyance to the persons residing nearby or passing by such public place, or if the same offends public decency.
All the accused persons were apprehended from the premises i.e E123A, GTB Enclave. It is not the case of the prosecution that the accused persons were found in a public place or whatever was being done in the house was being done in such a manner that same could be seen or heard from any public place. The activities were confined within the precincts of the premises aforementioned. It FIR No. 98/99 18 of 19 seems that if a major choses to indulge in prostitution and whatever is being done cannot be seen or heard from any public place then same is not punishable under Section 8 of ITP Act. This may not be the intent of the legislation but that seems to be the interpretation as on today. This Court is of the view that no case is made out against accused persons namely Nagma and Sunita for the offence under Section 8 of ITP Act.
7. In view of the above discussion, the accused Prema is held guilty and accordingly convicted for the offence under Section 4 Immoral Traffic (Prevention) Act 1956. She is acquitted of the offences under Section 3 & 5 Immoral Traffic (Prevention) Act 1956. Accused Sunita and Nagma are acquitted of the offences punishable under Section 8 Immoral Traffic (Prevention) Act 1956.
To come up for arguments/order on the point of sentence with regard to convict Prema on 11.07.2013.
Dictated & Announced in the open Court on 05.07.2013 ( SUNIL GUPTA ) METROPOLITAN MAGISTRATE(NE) KKD COURTS, SHAHDARA, DELHI FIR No. 98/99 19 of 19