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PETITIONER: KAMALABAI JETHAMAL

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 18/01/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1962 AIR 1189            1962 SCR  Supl. (2) 632

ACT:      Immoral Traffic-Suppression  of prostitution- Employment of youngmen by the police for Detection of offence-If  proper-Validity of  conviction-High Court’s power  of eviction-Suppression  of Immoral Traffic in,  Women and  Girls Act,  1956  (104  of 1946), of ss. 3(2), 4(1), 18.

HEADNOTE:      On learning  that the appellant was using her premises as  a brothel and was supplying girls for the purpose  of prostitution,  the police arranged to lay  a trap. With two one hundred rupees marked currency notes  given by the police two persons, M and L,  went  to  the  premises  occupied  by  the appellant; M was to ask for a girl for the purpose of prostitution  and L  was to be a witness of the fact. M  selected a  girl and gave the one hundred rupees note  to the appellant who put it under her blouse. When  M and  the girl were in the room, on signal being  given, the  police entered  the room and found  them in a rather compromising position. A woman Panch who had accompanied the Police party searched  the  appellant  and  recovered  the  one hundred  rupees   currency  note  from  under  the blouse.      The appellant  was tried  for offences  under ss.3(2) and  4(1) of  the Suppression  of  Immoral Traffic in  Women and  Girls  Act,  1956,  by  the Magistrate who, however, acquitted her. On appeal, the High  Court accepted  the prosecution case and convicted the  appellant and,  further ordered her eviction. The  High Court  accepted the testimoney of L  in regard  to the  payment  of  the  hundred rupees currency note to the appellant and also the evidence in  the case  to show that the amount was used  for   the  purpose   of  prostitution.   The appellant contended  (1) that  the conviction  was bad because  it was  based only on the evidence of the police  and its agents, and the search was not conducted in accordance with the provisions of the Code of  Criminal Procedure,  and (2) that, in any

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case, only  the Magistrate  was given the power of eviction under s. 18 of the Act. ^      Held, that  on the  evidence accepted  by the High Court,  the conviction  of the  appellant was valid.      The practice  of the  Governmental authority, like the police, employing young men, particularly students studying at the educational institutions, as in the present case, in 633 order to  suppress immoral traffic in women and to stop prostitution, condemned.      Held, further,  that the  High  Court  having ordered the  conviction of  the appellant, had the power to evict her under s. 18 of the Act.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:  Criminal Appeal No. 167 of 1961.      Appeal by special leave from the judgment and order dated September 29, and October 11, 1961, of the Bombay  High Court  in Criminal Appeal No. 906 of 1961.      S. G.  Patwardhan, J.  B. Dadachanji,  O.  C. Mathur and Ravinder Narain for the appellant.      H.  R.   Khanna  and  P.  D.  Menon  for  the respondent.      1962. January  18.-The Judgment  of the Court was delivered by      KAPUR  J.-This   is  an  appeal  against  the judgment and  order of  the High  Court of  Bombay secting  aside  the  order  of  acquittal  of  the appellant  and   sentencing  her   to  one  year’s rigorous imprisonment  and evicting  her from  the premises which she was occupying as a tenant.      The appellant  was tried  by  the  Additional Chief Presidency Magistrate, Esplanade, Bombay for offences  under   ss.  3(2)   and  4(1)   of   the Suppression of  Immoral Traffic in Women and Girls Act (Act  104  of  1956)  hereinafter  called  the ’Act’. The  charge against  the appellant was that she supplied  a girl to Manmohan Anandji Mehta who is a  witness and she kept or managed a brothel at block No.  6, plot  No. 144; Shivaji Park, Bombay; that  she  knowingly  lived  on  the  earnings  of prostitution and  that the  procured women for the purpose  of   prostitution.  The   story  of   the prosecution was  that information  was received by Police Superintendent Kanga that the premises were being used as a brothel and that the appellant was supplying 634 girls  for   the  purpose   of  prostitution.   He thereupon  laid  a  trap  and  sent  two  persons, Manmohan Anandji  Mehta and Prabhakar K. Loke, the former was  to ask  for a  girl for the purpose of prostitution and  the latter  was to be a panch i. e. a  witness of that fact. Sub-Inspector Purohit, it is  stated, gave  two one hundred rupees marked currency notes  to Manmohan Anandji Mehta with the instruction that  he was to pay out of that to the appellant and  thus to  obtain a girl from her for

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the purpose  of prostitution.  He along  with Loke went to  the house of the appellant, rang the bell and  was  admitted  by  her.  He  then  asked  the appellant to  arrange a  girl  for  him  and  both Manmohan Anandji  Mehta and  Loke are  alleged  to have  said   that  they   wanted  two   girls  for enjoyment. Two  girls were shown, one Kamal Govind and the  other Indu  Bapurao Salunke  both of whom are witnesses.  The amount quoted by the appellant in the case of the former was Rs. 100/-and for the latter Rs.  50/-. Manmohan  Anandji Mehta selected Kamal and  handed over  heroine one hundred rupees currency note to the appellant which she put under her blouse.  Manmohan Anandji  Mehta and  the girl then  went   into  the   kitchen  and  there  they undressed and  were later found naked on the floor and in a rather compromising position. On a signal being given  the police  i.e. Superintendent Kanga and Sub-Inspector Purohit entered the premises and were told  by Loke that Manmohan Anandji Mehta and the girl  were in the kitchen. The police officers opened the  door of  the kitchen  and  found  both Manmohan Anandji  Mehta and Kamal as stated above. They then  were  asked  to  dress  and  come  out. Manmohan Anandji Mehta then returned the other one hundred rupees  currency  note  to  superintendent Kanga. A  woman  Panch  who  had  accompanied  the police party  searched the appellant and recovered the one  hundred rupees  currency note  from under the blouse.  It is stated that the male members of the party were at that time in a passage adjoining the 635 hall  where   the  appellant   was  searched.  The appellant  was   tried  for   the  offences  above mentioned but  was  acquitted  by  the  Additional Chief Presidency  Magistrate. On  appeal the  High Court  set   aside  the  order  of  acquittal  and sentenced her  to a  year’s rigorous  imprisonment and also  ordered her  eviction from  the premises she was occupying as a tenant.      The  evidence  mainly  consists  of  Manmohan Anandji  Mehta   and  Loke   and  the  two  police officers. The  testimony of Manmohan Anandji Mehta and Loke  by itself  may not, in the circumstances of the  case, be of much value but their testimony receives corroboration  and thus gives credence to the  prosecution  case.  The  evidence  of  Police Superintendent Kanga  shows that  when the door of the  kitchen   was  pushed  open  both  Kamal  and Manmohan Anandji  Mehta were  naked and  were in a compromising position; their clothes were lying by the side  of the  mattress, The  testimony of Sub- Inspector Purohit  is also to the same effect. The other circumstances which is very much against the appellant is  that there  is evidence to show that when the  woman panch accompanied the police party and  searched   the  appellant  a  hundred  rupees currency note  was found from her person under her blouse. The  fact is  deposed to  by Sub-Inspector Purohit and  by Police  Superintendent Kanga. Loke has also  deposed to  the same  effect. But it was submitted on  behalf of  the appellant  that  this evidence should  not be  accepted as, according to law, no  woman can  be searched  except by another

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woman and having regard to the emphasis on decency under ss.  52 and  103 of  the Criminal  Procedure Code that  cannot be  done in the presence of men. There is  no  evidence  to  show  except  that  of Manmohan Anandji  Mehta that the men were asked to move away  from the  hall or had actually left the hall during the search. But assuming they were not in  the   hall  even   then  it  will  not  be  an extraordinary circum- 636 stance that  one or  all of  them should have seen the hundred  rupees, note  being  taken  out  from under the  blouse of the appellant. The High Court has, accepted the testimony of Loke and we find no reason to  depart from  the usual practice of this Court, of  accepting such  findings. Besides,  the High Court has also accepted the testimony of Loke in regard  to the  payment  of  a  hundred  rupees currency note  to the  appellant which proves that money was  paid before the girl, Kamal Govind, was asked to  go with  Manmohan Anandji  Mehta for the purpose of prostitution.      Counsel  for  the  appellant  emphasised  two points: (1) that the woman, who was brought by the police to  search the  appellant and is alleged to have recovered  the hundred  rupees note  from her person,  has   not  been  produced  and  (2)  that considering that  the person  to be searched was a woman it  must be presumed that in accordance with the requirements  of law  and of  decency  no  man could have  been present  when the  search of  the appellant took  place. In  support  of  the  first contention reference  is made  to  a  judgment  of this, Court  in Purvez  Ardeshir Poonawalla v. The State  of   Bombay(1),  where   the  necessity  of producing the search witness was emphasised and it was observed:-           "This is,  one of  those cases where the      rule in  regard to  search witnesses  becomes      applicable and importance must be attached to      the lack  of that  class, of search witnesses      which are envisaged by the Criminal Procedure      Code in s. 103." The Privy Council also in Malak Khan v. Emperor(2) emphasised the necessity of the presence of search witnesses. Lord Porter there said:           "In   their   Lordship’s   opinion   the      presence of  witnesses, at a search is always      desirable and  their absence  will weaken and      may sometimes  destroy the  acceptance of the      evidence  as,   to   the   finding   of   the      articles......." 637 The observations in Poonawalla’s case (1) and Lord Porter  in   Malikkhan  v.  Emperor  (2)  are  not directly applicable  in the  present case.  As  we have said  above there  is evidence  in this  case which has  been accepted  by the High Court that a hundred rupees  note was given to the appellant by Manmohan Anandji  Mehta. There  is  also  evidence that as  a consequence  of the  payment  of  money Manmohan Anandji  Mehta did  hire Kamal Govind for prostitution and  it is  regrettable to  say  that with the money given to him by the police he acted not merely  as a  ’bogus customer’, as he has been

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described, but  his participation was more active, reprehensible, immodest,  indecent and indecorous. If in  any case the following observations of Lord Goddard, Chief  Justice, in  Brannan, v.  Peek (3) are apposite it is this case:           "The court  observes  with  concern  and      disapproval  the   fact   that   the   police      authority as Derby thought it right to send a      police officer  into a public house to commit      an  offence.   It  cannot   be  too  strongly      emphasised that,....it  is wholly wrong for a      police officer or any other person to be sent      to commit an offence in order that an offence      by another person may be detected." We have  only to  substitute the words "aid an act of prostitution"  for "to  commit an  offence" and the analogy is complete. In this case two youngmen were given  money  to  go  to  the  house  of  the appellant and  also to use that money in rather an improper manner.  Manmohan Anandji  Mehta seems to be a  person of  rather doubtful character and the employment of  this class of persons for detection of offences is hardly a credit to any one. What is more reprehensible and a matter of greater concern is the  sending, with  him a young student who was reading for his Matriculation. To use students in 638 this  manner   should  not   be  allowed   by  any governmental authority  in a country like ours. It is no  justification to  say  that,  in  order  to suppress immoral  traffic in  women  and  to  stop prostitution somebody  has to be-used and the only class of  people that  can be employed are persons like Manmohan  Anandji Mehta  who is confessedly a police agent and Loke who is a youngman willing to be employed  by the  police. After  saving this we have still  to see  what is the consequence of the testimoney of these witness produced in this case. The High  Court has believed the testimony of Loke in regard to the payment of one hundred rupees and there is evidence to show that amount was used for the purpose  of procuring  Kamla for prostitution. The payment must therefore be held to be proved.      It may be that the search was contrary to the spirit  or   even  the   letter  of  the  Criminal Procedure Code  but the fact remains that the High Court has  accepted that  there was a search and a hundred rupees  currency note  was  recovered  and even if  the recovery of a hundred rupees currency note were  held not  proved, the  payment of  that amount will  not thereby  become unproved if there evidence which the High Court has accepted.      On the  findings of  the High  Court  we  are unable to come to any other conclusion but the one to which the High Court came that the appellant is guilty of the offences of which she was accused.      The  next   submission  of  Counsel  for  the appellant was  that the High Court in appeal could not order  the appellant’s  eviction because  that power only  a Magistrate  has under  s. 18  of the Act. The  argument raised  was that  the powers of the appeal  court under s. 423, Criminal Procedure Code are  to reverse  the order of acquittal or to order a fresh enquiry or a retrial etc. but not to order eviction.  But this argument is untenable in

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view of  the fact  that in  the  Act  there  is  a specific provision in s. 18 639 of the Act authorising the making of such an order by a  court convicting  a person of offences under s. 3  or s.  7 of the Act. The relevant portion of s. 18 is as follows:- S.  18   "Closure  of  brothels  and  eviction  of offenders from the premises,-           (1)....... ,and  if  after  hearing  the      person concerned, the magistrate is satisfied      that the  house........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.........           (2) A  court convicting  a person of any      offence under section 3 or section 7 may pass      orders under  sub-section (1) without further      notice  to  such  person  to  show  cause  as      required in that sub-section." The High  Court  ordered  the  conviction  of  the appellant under  s. 3  of the Act and therefore it had the  power to  order her  eviction. The second contention is also without substance.      The appeal is therefore dismissed.                                  Appeal dismissed. 640