Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 500 (JHR)

Sumanto Ghosh v. State Of Jharkhand

2017-03-08

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. K.K. Ojha, learned counsel appearing for the petitioner and Mr. Binod Singh, learned S.C.(L&C). 2. In this application the petitioner has prayed for quashing of the Letter No.583 dated 25.06.2016 passed by the Circle Officer, Pakur in compliance of the order dated 08.06.2016 passed by the Sub-Divisional Officer-cum-Magistrate, Pakur whereby and where under the hotel of the petitioner has been sealed. 3. It has been stated by the learned counsel for the petitioner that a raid was conducted by the Assistant Sub-Inspector of Police who was not authorized as a Special Police Officer or a trafficking Police Officer in terms of section 13 of Immoral Traffic (Prevention) Act, 1956. It has also been stated that the hotel was sealed without following the mandatory requirement as envisaged in section 18 of the Act. Learned counsel, therefore, submits that since proper compliance has not been made with respect to the provisions of the Act, the order of the Circle Officer complying with the direction of the Sub-Divisional Judicial Magistrate, Pakur for sealing the premises be quashed and set aside. 4. Mr. Binod Singh, learned S.C. (L&C) has filed counter affidavit in which a notification has been brought on record to suggest that various Police Officer in separate districts have been designated as the Special Police Officer for effective implementation of the provisions of Immoral Traffic (Prevention) Act. Learned counsel submits that merely because the Assistant Sub Inspector of Police has instituted the first information report, the same cannot lead to any benefit to the petitioner as the law has merely been put to motion. Learned counsel further submits that since illegal activities were going on in the hotel of the petitioner, the authorities have taken steps for securing the hotel premises. It is, therefore, submitted that the order of the Sub-Divisional Officer-cum-Magistrate as well as the Circle Officer do not deserve any interference. 5. It appears that primary thrust of the argument of the learned counsel for the petitioner is with respect to section 18 of the Act. It is, therefore, submitted that the order of the Sub-Divisional Officer-cum-Magistrate as well as the Circle Officer do not deserve any interference. 5. It appears that primary thrust of the argument of the learned counsel for the petitioner is with respect to section 18 of the Act. In order to appreciate the rival contentions, it would be necessary to quote section 18 of the Act which reads as under:- "Section 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, issued 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 nay 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 withing seven days of the passing of the order from the house, room, place or portion; (b) directing that before letting it our 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 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." 6. Section 18, therefore, pre-supposes that a show-cause notice be issued to the owner, lessor or the landlord in a place in which brothel is being run and after hearing the person concerned, the Magistrate may pass necessary orders for eviction of the occupier or for a conditional order for letting out the premises. 7. Section 18, therefore, pre-supposes that a show-cause notice be issued to the owner, lessor or the landlord in a place in which brothel is being run and after hearing the person concerned, the Magistrate may pass necessary orders for eviction of the occupier or for a conditional order for letting out the premises. 7. It appears from the present case that a raid was conducted in the hotel of the petitioner on 11.05.2016 and it was found that some illegal and immoral activities were going on which led to institution of Pakur (T) P.S. Case No.111 of 2016. The order for sealing the premises has been brought on record by the learned S.C. (L&C) in the supplementary counter affidavit filed by the State from which it appears that a recommendation had been made for sealing of the hotel premises. No where from the impugned letters, it could be detected that the provisions of Section 18 of the Act has been properly followed. Concentration has only been made with respect to the allegation that innocent girls were being induced by the petitioner to engage themselves in flesh trade. That by itself, it is not a pre-dominant necessity as the course available to the State Authorities was for issuing notice to the petitioner who claimed himself to be the owner of the hotel and after submission of show-cause and after hearing the petitioner could necessary orders have been passed for sealing the hotel premises. Since Section 18 which is the mandatory provision and its compliance has admittedly not been followed by the authorities in sealing of the property in question, the petitioner cannot be continuously deprived with respect to carrying out his business. 8. Thus, in view of what has been stated above, the impugned letters dated 25.06.2016 and 08.06.2016 cannot be sustained in the face of Section 18 of the Act. 9. Accordingly, the impugned Letter No.583 dated 25.06.2016 passed by the Circle Officer, Pakur in compliance of the order contained in Memo No.206 (Confidential) dated 08.06.2016 passed by the Sub-Divisional Officer-cum-Magistrate, Pakur are hereby quashed and set aside. The respondent No.2 is directed to immediately unseal the hotel premises of the petitioner. 10. This application stands disposed of.