ORDER : This application is directed against the order dated 23rd September, 2013 passed by Shri K.M. Prasad, learned Judicial Magistrate, 1st class, Jamshedpur, by which the petitioner has been convicted for the offence punishable under sections 3, 4 & 5 of the Immoral Traffic Act ( Hereinafter referred to as the Act) and has been sentenced to undergo R.I. for one year and a fine of Rs. 500/- for the offence committed under section 3 of the Act, R.I. for one year committed under section 4 of the Act and R.I. for three years for the offence committed under section 5 of the Act and to pay a fine of Rs.1,000/- for the offence committed under section 3 of the Act and all the sentences were to run concurrently. The petitioner has also challenged the judgment dated 26.8.2015, passed in Cr. Appeal No. 274 of 2013, by which the judgement and order of conviction and sentence passed against the petitioner has been affirmed. 2. An FIR was instituted on 11.10.2010 with respect to a raid conducted in Flat No. 411 at Adarsh Nagar, Sonari pursuant to an information received that a brothel was running by a lady called Priti. On conducting a raid, it was found that inside the Flat two ladies and two unknown persons were present and a girl was also present in the other room in the said portion. Two of the boys suddenly pushed the lady police and fled away and in spite of attempt made by the police, they could not be apprehended. The women who were apprehended namely Rupali Mazumdar and Laxmi Rao had confessed that they were involved in sex trade. The petitioner, who was inside the room was also apprehended who had confessed her guilt and from the possession of apprehended women several incriminating articles were recovered. 3. After institution of the FIR, investigation was conducted, which resulted in submission of charge-sheet and after charge was framed under sections 3, 4, 5 & 7 of the Act, trial proceeded. In course of trial, four witnesses were examined on behalf of the prosecution. On conclusion of the trial, by judgment dated 23.9.2013, learned Judicial Magistrate, 1st class, Jamshedpur was pleased to convict the petitioner for the offence under sections 3, 4 & 5 of the Act and sentenced her accordingly. In course of trial, four witnesses were examined on behalf of the prosecution. On conclusion of the trial, by judgment dated 23.9.2013, learned Judicial Magistrate, 1st class, Jamshedpur was pleased to convict the petitioner for the offence under sections 3, 4 & 5 of the Act and sentenced her accordingly. Being aggrieved by the order of conviction and sentence, the petitioner along with others had preferred an appeal being Cr. Appeal No. 274 of 2013, which however, was dismissed by the learned District & Additional Sessions Judge-IV, Jamshedpur on 26.8.2015. 4. Heard Mr. Amit Prasad, learned counsel for the petitioner and Mrs. Lily Sahay, learned A.P.P. 5. It has been submitted by the learned counsel for the petitioner that the petitioner was never involved in running Sex Racket and even if assuming the petitioner was found in the Flat and was involved in prostitution, the same by itself could not make the petitioner liable to be prosecuted under the Act. It has further been submitted that the learned trial court and appellate court had not appreciated this fact before convicting and sentencing the petitioner. Learned counsel further submits that the Investigating Officer as well as the informant were never examined and even the seizure list has not been proved by the prosecution, which further demolishes the prosecution case. Learned counsel while referring to Section 55 of the Act has submitted that the informant was never the Special Police Officer or the Trafficking Police Officer, who was designated to conduct search and seizure and in absence of basic requirements under the Act having not been fulfilled the order of conviction and sentence and its subsequent affirmation in appeal deserves to be set aside. 6. At this Mrs Lily Sahay, learned A.P.P., has submitted that the petitioner was caught red-handed in the brothel, which was being run by a lady named Priti and she had also confessed her participation in sex trade, which has been supported by the prosecution witnesses and therefore there being no lacuna in the prosecution case as the involvement of the petitioner had been proved beyond any reasonable doubt, both judgements under challenge deserve to be affirmed. 7. Perused the Lower Court Records. It appears that four witnesses were examined by the prosecution. 7. Perused the Lower Court Records. It appears that four witnesses were examined by the prosecution. P.W-1-Subodh Kumar Srivastava, who was a member of the raiding party, had stated that he did not have in his possession any notification of the Commissioner of Police with respect to permission to run a Brothel. P.W-2-Safira Tirkey has merely stated about the occurrence, which had taken place as she was also a member of the raiding party. Same is the version of P.Ws. 3 and 4. Admittedly, in the present case, neither the informant nor the investigating officer had been examined and even the seizure list has not been proved by the prosecution. Non examination of the informant and the Investigating Officer is fatal to the prosecution case as would be discussed in the subsequent paragraphs. In support of his contention that the petitioner could not be prosecuted under the Act, learned counsel for the petitioner has referred to a judgment of Madras High Court in the case of Ratnamala and Anr. Vs. State reported in 1962 (1) CRI.L.J. 162, wherein with respect to the Act, it was held that the idea was not to render prostitution per se a criminal offence, or to punish a woman merely because she prostitutes herself. It further went on to hold as follows :- "I desire to emphasise that a careful scrutiny of the Central Act 104 of 1956 clearly reveals that the Act was aimed at the suppression of commercialized vice, and not at the penalization of the individual prostitute, or of prostitution in itself. This is of some importance in considering the case against the appellant Ratnamala". In support of his contention that neither the informant or for that matter the Investigating Officer was competent to conduct search and seizure, learned counsel for the petitioner has referred to Section 13 of the Act, which deals with Special Police Officer and Advisory Body and which reads as follows :- "13. Special police officer and advisory board-(1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area. [(2) The special police officer shall not be below the rank of an Inspector of Police. Special police officer and advisory board-(1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area. [(2) The special police officer shall not be below the rank of an Inspector of Police. (2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally : Provided that no such power shall be conferred on— (a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector; (b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer.] (3) For the efficient discharge of his functions in relation to offences under this Act— (a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and (b) the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act. [(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State, appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.]". There is nothing in the record to suggest that the informant was designated as a Special Police Officer or a Traffic Police Officer for the area which could have been specified if such notification for delegation of the powers of a Special Police Officer to be exercised by a person not below the rank of Inspector of Police was issued. A similar matter fell for consideration before this Court in the case of Rehan Ahmad @ Mojahid Rehan Ahmad @ Majid Rehan and Ors Vs. State of Jharkhand, reported in 2008 (2) JCR 153 (Jhr.) [ : 2008 (1) JLJR (SC) 519], wherein it was held as follows :- "8. I have examined the provisions of law carefully and I find substance in the arguments advanced on behalf of the petitioners that the investigation of the instant case, under the Special Act, was done by the Sub-Inspector of Police and not by a Special police officer in contravention of the provision of Section 13 of Special Act. Similarly search made and seizure list prepared by the Investigating Officer as well as the informant were not a competent police officer under Section 15 of the Act and therefore, the institution of the case as well as its investigation suffers from material irregularity and illegality and in view of the lack drop of such irregularity cognizance of the offence taken by the CJM is unsustainable". A conjoint reading of Sections 13 and 15 of the Act would clearly suggests that any search and seizure could only be carried out by a Special police officer who has been designated as such by the State Government or Traffic Police Officer designated by the Central Government in terms of Section 13(4) of the Act but as it seems nothing has been brought in the record to suggest that the raiding party or the informant or for that matter the Investigating Officer was conferred powers in terms of Section 13 of the Act. This fact has not been properly appreciated by the learned trial court or by the appellate court. This fact has not been properly appreciated by the learned trial court or by the appellate court. Both the courts below have merely concentrated on the evidence of the prosecution witnesses without taking into consideration the fact that apart from incompetency of the informant to conduct search and seizure, the informant as well as the Investigating Officer were never examined by the prosecution and their non-examination in the fact and circumstances of the case does prove to be fatal to the prosecution. In such view of the matter, therefore, since a fundamental defect is palpable in initiation of the prosecution case and which goes to the root of the case and the same having not been properly appreciated or considered by both the learned courts below, this revision has to succeed. Accordingly, this application is allowed and the order dated 23rd September, 2013 passed by Shri K.M. Prasad, learned Judicial Magistrate, 1st class, Jamshedpur, by which the petitioner has been convicted for the offence punishable under sections 3, 4 & 5 of the Immoral Traffic Act and has been sentenced to undergo R.I. for one year and a fine of Rs.500/- for the offence committed under section 3 of the Act, R.I. for one year for the offence committed under section 4 of the Act and R.I. for three years for the offence committed under section 5 of the Act and to pay a fine of Rs.1,000/- for the offence committed under section 3 of the Act and all the sentences were to run concurrently and the order dated 26.8.2015, passed in Cr. Appeal No.274 of 2013, by which the judgement under order of conviction and sentence passed against the petitioner has been affirmed, are hereby set aside.