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1. By this appeal, appellant Kanchi Tamang challenges the impugned judgment dated 29th August 2016 convicting her for the offence punishable under Section 3 of the Immoral Traffic (Prevention) Act, 1956 (in short 'ITP Act') and the order on sentence dated 2nd September 2016 directing her to undergo rigorous imprisonment for a period of three years and to pay a fine of ₹2,000/- and in default whereof to undergo simple imprisonment for a period of six months.

2. Assailing the conviction, learned counsel for the appellant submits that the property situated at 'Kotha No.59, Second Floor, Right Side, G.B. Road, Delhi' has not been proved to having been used as a brothel and a mere submission that it was being used as a brothel is not sufficient to hold any person guilty of that offence. Therefore, the learned Trial Court has erred in convicting the appellant for the offence punishable under Section 3 of the ITP Act. The evidence on record amply demonstrates that the appellant is the owner of the 'top floor', that is, the 3rd floor, Kotha No.59, G.B. Road, New Delhi. The site plan prepared by the Investigating Officer is false and misleading inasmuch as it records that the building at Kotha No.59 only had two floors. Notwithstanding the same, the site plan is inadmissible in view of Section 162 Cr.P.C. inasmuch as the same has been proved through the Investigating Officer himself who inter alia deposed that he prepared the said site plan at the instance of one of the alleged prosecutrix. Reliance was placed upon the decision of the Supreme Court reported as (1962) 1 CriLJ 469 Tori Singh v. State of U.P., the decision of the Calcutta High Court reported as AIR 1944 Cal 339 Ibra Akanda v. Emperor and the decision of this Court reported as 1997 JCC 263 Narain Singh v. State. The entire evidence including the deposition of 'P'@'R' and 'M'@'M' shows that the appellant's property situated at the third floor had nothing to do with the running of the brothel. He further submitted that for an offence under Section 3 of ITP Act, it is essential that the learned Trial Court comes to a conclusion that an accused person keeps or allows a property to be used as a brothel. 'Knowledge' is an essential ingredient of Section 3 ITP Act. Hence, even if it is assumed that the property of the appellant is the same property as alleged in the prosecution story, mere fact that the appellant is the owner of the building/kotha in absence of any definite evidence to prove any specific instances of prostitution or that the said kotha was used for prostitution with the connivance of the appellant would not be sufficient to make out an offence under Section 3 ITP Act. Reliance was placed on the decision of this Court reported as 2003 Cr.LJ 533 (Delhi) Mumtax Alias Behri vs. State (NCT of Delhi).

3. Per contra, learned APP for the State submits that the appellant has been rightly convicted for the offence punishable Section 3 ITP Act. From the deposition of the two prosecutrix i.e. PW-1 and PW-2 it is proved beyond reasonable doubt that they were forcefully made to indulge into prostitution in the presence which was in occupation/possession of the appellant, which fact is admitted by the appellant as also proved from the evidence that the electricity bill was in the name of the appellant as consumer.

6. Consequently, FIR No. 405/14 was registered for offences punishable under Sections 365/368/370/376/342/343/344/109/120B/34 IPC and Sections 4/5/6/7 ITP Act at PS Kamla Market vide Ex.PW8/A.

7. Thereafter, for further investigation of the case, Insp. Binod Kumar Singh along with SI Padam Singh, W/Ct. Shelly, HC Chandramani and the prosecutrixes went to Kotha No.59, Second Floor, G.B. Road for search of the accused persons but they could not be located. The site plan was prepared at the instance of 'B'@'S' vide Ex.PW-11/B.

19. From the testimonies of prosecutrixes, 'P'@'R' (PW-1), 'M'@'M' (PW-2) and 'B'@'S' (PW-5) clearly proves that Kotha No.59, on the second floor right side, G.B. Road, Delhi was being used as a brothel. Furthermore, it is established from the deposition of Rajiv Verma (PW-9), Field Executive, BSES that meter number 11641212 installed at Kotha No. 59, Second Floor, Right side, G.B. Road, Delhi was in the name of Kanchi Tamang, thus, she was the user of the premises. As noted above, appellant though appeared as DW-1 and sought to exhibit the photographs of the various rooms on the second floor, however, neither the negatives nor certificate under Section 65B of the Indian Evidence Act was proved. Thus conviction of Kanchi Tamang for offence punishable under Section 3 ITP Act is upheld.