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Kanchi Tamang vs State Of G.N.C.T Of Delhi on 24 September, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 17th January, 2018
Decided on: 24th September, 2018
+ CRL.A. 912/2016
KANCHI TAMANG …..Appellant
Represented by: Mr. Sidharth Aggarwal,
Mr.Harshit Jain, Mr.Faraz
Maqbool, Ms.Rupali Samuel
Advocates.
versus
STATE OF G.N.C.T OF DELHI …..Respondent
Represented by: Mr. Amit Gupta, APP with SI
Navdeep PS Kamla Market.

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

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

CRL.A. 912/2016 Page 1 of 13
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).

CRL.A. 912/2016 Page 2 of 13

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.

4. Brief facts of the case are that on 21st December 2014 at around 10:19
A.M., a PCR call was received from Satya Prakash regarding three girls who
had escaped from a kotha situated at G.B. Road and were standing at the
New Delhi Railway Station, Ajmeri Gate side. Aforesaid information was
recorded vide DD No.10A (Ex.PW-3/A). Thereafter, on receipt of the above
information, SI Padam Singh along with Ct. Vikram reached at the place of
occurrence, that is, Gate No.1, Metro Station, New Delhi where
prosecutrixes ‘B’@’S’, ‘M’@’M’, ‘P’@’R’ were found present. They
informed him that they have managed to escape from Kotha No.59, Second
Floor, G.B. Road. They were taken to PS Kamla Market wherein they were
produced before Insp. Binod Kumar Singh who called the counsellor from
one NGO.

5. Statement of ‘B’@’S’ was recorded vide Ex.PW-5/A wherein she
stated that about 4 months back she met a woman aged between 35-40 years
named Sapna (declared ‘Proclaimed Offender’) at Gaudiya Railway Station.
She became friends with her and used to talk to her on the phone frequently.
She could neither recall Sapna’s phone number nor her own. Sapna told her
that she has a brother named Sagar (declared ‘Proclaimed Offender’) to

CRL.A. 912/2016 Page 3 of 13
whom she wanted her to get married to. Thereafter, Sapna made her meet
Sagar who was aged between 25-30 years where after they started talking to
each other on the phone. She stated that she secretly married Sagar in a
mandir and informed her parents over the phone regarding the same. Sagar
then brought her to Delhi by train. They reached New Delhi Railway
Station around 10:30 P.M. whereafter Sagar took her to a woman’s house
whose name she later found out as Sarika (declared ‘Proclaimed Offender’).
They took around 30 minutes by auto to reach Sarika’s house. She was kept
there for around 10 days and Sagar did ‘galat kaam’ with her on multiple
occasions while they were there and had done the same twice back in the
village as well. Thereafter, Sagar told her that he cannot take her to his
house right now as he had no money. He asked her to stay and work with
Sarika at G.B. Road for 5 days after which he would take her to his house.
She stated that she had not consented for the said ‘galat kaam’ but due to the
fear that he might leave her, she agreed and went with Sarika to work at
Kotha No. 59, G.B. Road. On reaching there, Sarika handed her over to a
woman named Kali who made her wear short clothes and made her do ‘galat
kaam’. The money she received from the customers was taken by Kali and
was further handed over to Sarika who came after every two to four days to
collect it. At the Kotha, she met ‘P’@’R’ who was also from Bengal and the
two became friends where after she found out that ‘P’@’R’ had also been
brought there on false pretext. She stated that she was at the Kotha for
around three to three and a half months. Three to four days before the
complaint, Kali took her and ‘P’@’R’ to Sarika’s house in Rohini. There she
met ‘M’@’M’ who was also from Bengal and was brought to Delhi on false
pretext by Sagar and Sarika in the same manner as her. On 21 st December,

CRL.A. 912/2016 Page 4 of 13
2014 the three of them planned to run away from the house. When
everybody was sleeping they ran away and took an auto to New Delhi
Railway Station where they met a taxi driver who called the police to help
them. She stated that she can identify Kali, Sagar, Sapna and Sarika if
brought in front of her.

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.

8. Inspector Veena Kumari took the prosecutrixes ‘B’@’S’, ‘M’@’M’,
‘P’@’R’ to LNJP Hospital for their medical examination.

9. On 22nd December 2014, Insp. Binod Kumar Singh along with the
prosecutrixes went to G.B. Road pursuant to the secret information received
regarding the accused persons. Accused Farida @ Kali was spotted at the
instance of the prosecutrixes who was arrested vide arrest memo Ex.PW-
1/A. Her personal search was conducted vide Ex.PW-1/B and her disclosure
statement was recorded vide Ex.PW-11/A. Minor child of ‘P’@’R’ was
recovered from the kotha and handed over to her.

10. On 24th December 2014, Insp. Veena Kumari got the statements of the
prosecutrixes recorded under Section 164 Cr.P.C. vide Ex.PW-1/C, Ex.PW-
5/B and Ex.PW-6/B.

11. On 1st March 2015 on receiving an information by a secret informer,

CRL.A. 912/2016 Page 5 of 13
Insp. Binod Kumar Singh arrested the appellant from her house at Majnu ka
Tila vide arrest memo Ex.PW-10/A. Her personal search was conducted
vide Ex.PW-10/B and her disclosure statement was recorded vide Ex.PW-
10/C.

12. During the course of investigation, Insp. Binod Kumar Singh obtained
certified copy of the writ petition (Ex.PW-11/C) filed by the appellant
containing her affidavits with regard to her ownership of Kotha No. 59,
Second Floor, Right Side, G.B. Road, Delhi. He also collected the electricity
bill with regard to electricity connection installed in the name of the
appellant at the given premises which was proved vide Ex.PW-11/D.

13. After completion of investigation, charge sheet was filed. Charge was
framed for offence punishable under Section 3 ITP Act against the appellant.

14. ‘P’@’R’ (PW-1) in her testimony stated that she met one Raju who
was living in her village in the month of June or July, 2014. He induced her
to accompany him to Delhi by giving assurance that he will find her a good
job of cleaning, sweeping etc. in Delhi. Raju also took away her phone along
with some of her jewellery. She did not have cordial relations with her
husband, therefore, she accompanied Raju to Delhi. She brought one of her
daughters with her to Delhi and left the other one with her mother. After
reaching Delhi, she was taken to one lady named Sarika who was living in
Kotha No. 40, G.B. Road, Delhi. She was then handed over to a lady named
Kali who was living at Kotha No. 59, right side at top floor at G.B. Road,
Delhi. She stated that Kali forced her to work as a prostitute. On her refusal
to do the same, she was beaten, and her daughter was taken away from her
and given to someone else by Kali. She stated that about 6-8 customers
established physical relations with her per day for which Kali used to charge

CRL.A. 912/2016 Page 6 of 13
₹200 to ₹300 per customer. There were 10 to 20 other girls doing the same
work in the said Kotha but she only knows ‘B’@’S’ amongst them. She was
not aware of Sarika’s house address to which she was taken along with
‘B’@’S’. She met ‘M’@’M’ at Sarika’s house and was there for about 2
days. Three of them then escaped on a Sunday and reached New Delhi
Railway Station. They met a taxi driver at the station to whom they narrated
the entire incident after which the taxi driver called the police and they were
taken to the Police Station. In her cross examination she stated that the
Kotha No.59, Right Side was on the second floor to which she was referring
to as the top floor.

15. ‘M’@’M’ (PW-2) stated in her testimony that she met Sapna at
Canning Railway Station while on her way to her aunt’s house. Sapna took
her mobile number where after Sapna’s brother Sagar called her stating he
wants to become her friend. She met Sagar at Sunar Pur Railway Station,
West Bengal. He took her to Bokhali falsely stating that his mama had
expired and wanted her to accompany him. Thereafter, he took her to a hotel
in Bokhali and established physical relations with her without her consent.
He also took away her mobile phone and took her to his friend’s house and
kept her there for one night. On the next day, Sagar brought her to Delhi by
train stating he will marry her and will also find a job there. Thereafter, he
took her to the house of Sarika where she stayed for 15 days and Sagar again
established physical relations with her without her consent. Thereafter,
Sarika’s husband and Sagar took her to Agra after 15 days. She was kept in
a Kotha at Kabari Bazar. Sagar left her there claiming that he will take her
with him after a month but never returned. Geeta, who was the owner of the
Kotha in Agra, told her that she had been sold to her by Sagar. She was

CRL.A. 912/2016 Page 7 of 13
made to work as a prostitute there on the pretext that if she does this work
then she will be allowed to go back to her village. She remained there for
about 5 months. From Agra, she was taken to a Kotha in Meerut by Sarika’s
friend Prakash where she remained for a month and was again forced to
work as a prostitute. On falling ill, she was taken to Sarika’s house in Delhi
where she was medically treated. One day Kali brought ‘P’@’R’ and
‘B’@’S’ to Sarika’s house. Thereafter, she found out that ‘B’@’S’ was also
brought to Delhi by Sagar. Thereafter, they planned and escaped from
Sarika’s house and went to New Delhi Railway Station. ‘P’@’R’ told her
that her daughter had been taken by Sarika and then given to some other
lady so she advised her to take help of Delhi Police. Then, they met a taxi
driver who informed the police after they narrated all the facts to him.

16. Rajiv Verma (PW-9), Field Executive, BSES, Town Hall deposed that
on 1st September 2015 he had visited Kotha No. 59, Second Floor, Right
side of premises bearing number 5382/89, G.B. Road, Delhi. The meter
number 11641212 installed at the aforesaid Kotha was in the name of the
Kanchi Tamang. He had prepared a site inspection report which was proved
vide Ex.PW-9/A and handed over electricity bill and photographs of the
meter vide Ex.PW-9/B and Ex.PW-9/A respectively. He further stated that
as per the electric meter connection record, the electricity connection had
been in the name of the appellant since 30th September 2011 and was still in
her name. He produced electricity bill dated 12th August 2015 vide Ex.PW-
9/C which was also in the name of the appellant. In his cross-examination he
stated that there are total of three floors at the premises in question including
one mezzanine floor. The site that was inspected by him vide Ex.PW-9/A is
the top floor, that is, the second floor.

CRL.A. 912/2016 Page 8 of 13

17. The appellant in her statement recorded under Section 313 Cr.P.C.
stated that she was residing at the third floor of the premises in question and
on the said floor where her property is situated, that is, at the right side there
were two premises including hers and the other one belonged to someone
else. Kanchi Tamang appeared as DW-1 also and deposed that her room
was situated on the top floor, that is, the third floor of Kotha No.59, G.B.
Road, Delhi. There were four rooms on the same floor and all the rooms
bear the same number i.e. Kotha No.59. She exhibited the photographs vide
Ex.DW-1/A, however, she neither exhibited the negatives of the
photographs nor exhibited the certificate under Section 65 B of the Indian
Evidence Act.

18. Section 3 of ITP Act reads as under:

“3. Punishment for keeping a 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 term 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 wilfully a party to the use of
such premises or any part thereof as a brothel, shall be punishable
on first conviction with imprisonment for a term which may extend

CRL.A. 912/2016 Page 9 of 13
to two years and with fine which may extend to two thousand
rupees and in the event of a second or subsequent conviction, with
rigorous imprisonment for a term which may extend to five years
and also with fine.

(2A) For the purposes of sub-section (2), it shall be presumed until
the contrary is proved, that any person referred to in clause (a) or
clause (b) of that sub-section, is knowingly allowing the premises
or any part thereof to be used as a brothel or, as the case may be,
has knowledge that the premises or any part thereof are being used
as a brothel, if,–

(a) a report is published in a newspaper having circulation in the
area in which such person resides to the effect that the premises or
any part thereof have been found to be used for prostitution as a
result of a search made under this Act; or

(b) a copy of the list of all things found during the search referred
to in clause (a) is given to such person.

(3) Notwithstanding anything contained in any other law for the
time being in force, on conviction of any person referred to in
clause (a) or clause (b) of sub-section (2) of any offence under that
sub-section in respect of any premises or any part thereof, any
lease or agreement under which such premises have been leased
out or are held or occupied at the time of the commission of the
offence, shall become void and inoperative with effect from the
date of the said conviction.”

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

CRL.A. 912/2016 Page 10 of 13
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.

20. With respect to the prayer of the appellant to de-seal the property of
Kanchi Tamang being Top Floor, Right Side, Kotha No. 59, G.B. Road.
Delhi, it would be appropriate to note Section 18 of ITP Act which reads as
under:

“18. Closure of brothel and eviction of offenders from the
premises.–

(1) A magistrate may, on receipt of information from the police or
otherwise, that any house, room, place or any portion thereof
within a distance of [two hundred metres] of any public place
referred to in sub-section (1) of section 7, is being run or used as a
brothel by any person or is being used by prostitutes for carrying
on their trade, issue notice on the owner, lessor or landlord of such
house, room, place or portion or the agent of the owner, lessor or
landlord or on the tenant, lessee, occupier of, or any other person
incharge of such house, room, place, or portion, to show cause
within seven days of the receipt of the notice why the same should
not be attached for improper user thereof; and if, after hearing the
person concerned, the magistrate is satisfied that the house, room,
place or portion is being used as a brothel or for carrying on
prostitution, then the magistrate may pass orders–

(a) directing eviction of the occupier within seven days of the
passing of the order from the house, room, place or portion;

(b) directing that before letting it out during the period of one
year[,or in a case where a child or minor has been found in such
house, room, place or portion during a search under section 15,
during the period of three years,] immediately after the passing of
the order, the owner, lessor or landlord or the agent of the owner,
lessor or landlord shall obtain the previous approval of the
magistrate:

Provided that, if the magistrate finds that the owner, lessor or
landlord as well as the agent of the owner, lessor or landlord, was

CRL.A. 912/2016 Page 11 of 13
innocent of the improper user of the house, room, place or portion,
he may cause the same to be restored to the owner, lessor or
landlord, or the agent of the owner, lessor or landlord, with a
direction that the house, room, place or portion shall not be leased
out, or otherwise given possession of, to or for the benefit of the
person who was allowing the improper user therein.
(2) A court convicting a person of any offence under section 3 or
section 7 may pass order under sub-section (1) without further
notice to such person to show cause as required in that sub-
section.

(3) Orders passed by the magistrate or court under sub-section (1)
or sub-section (2) shall not be subject to appeal and shall not be
stayed or set aside by the order of any court, civil or criminal and
the said orders shall cease to have validity after the [expiry of one
year or three years], as the case may be:

Provided that where a conviction under section 3 or section 7 is set
aside on appeal on the ground that such house, room, place or any
portion thereof is not being run or used as a brothel or is not being
used by prostitutes for carrying on their trade, any order passed by
the trial court under sub-section (1) shall also be set aside.
(4) Notwithstanding anything contained in any other law for the
time being in force, when a magistrate passes an order under sub-
section (1), or a court passes an order under sub-section (2), any
lease or agreement under which the house, room, place or portion
is occupied at the time shall become void and inoperative.
(5) When an owner, lessor or landlord, or the agent of such owner,
lessor or landlord fails to comply with a direction given under
clause (b) of sub-section (1) he shall be punishable with fine which
may extend to five hundred rupees or when he fails to comply with
a direction under the proviso to that sub-section, he shall be
deemed to have committed an offence under clause (b) of sub-
section (2) of section 3 or clause (c) of sub-section (2) of section 7,
as the case may be, and punished accordingly.”

21. Learned Trial Court vide order dated 2nd September, 2016 directed
that Kotha No.59, Second Floor, Right Side, G.B. Road, Delhi be sealed.
Since the conviction of Kanchi Tamang is upheld, the property cannot be

CRL.A. 912/2016 Page 12 of 13
directed to be de-sealed in favour of Kanchi Tamang. Though Kanchi
Tamang has placed on record the copy of W.P. (Crl.) 217/2014 along with
her affidavit vide Ex.PW-11/C claiming to be the owner of the
aforementioned premises, it cannot be de-sealed in her favour since the
period of three years as mandated under Section 18 of ITP Act has not
elapsed.

22. Impugned judgment and order on sentence are upheld. Appeal is
dismissed. Vide order dated 27th September, 2016 passed by this Court, the
sentence of Kanchi Tamang was suspended. Kanchi Tamang is directed to
surrender to custody and undergo the remaining sentence. Personal bond
and surety bond furnished by Kanchi Tamang at the time of suspension of
her sentence are discharged.

23. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

24. TCR be returned.

(MUKTA GUPTA)
JUDGE
SEPTEMBER 24, 2018
‘rk’

CRL.A. 912/2016 Page 13 of 13

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