Judgement

HEGDE, J.: These are companion appeals. They were brought to this Court on the strength of the certificates issued by the High Court of Punjab. The only question that falls for decision in these appeals is whether S. 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act) is ultra vires Art. 14 of the Constitution. The attack on the validity of that section on the basis of Art. 19(1) (d), (e) and (f) was not pressed at the time of the hearing. Hence there is no need to examine the said plea.

2. The first appellant in these appeals Shri A. C. Aggarwal, Sub-Divisional Magistrate, Delhi, issued notices to the respondents in these appeals-except that in criminal appeal No. 82 of 1965-to show cause why the premises occupied by them should not be attached under S. 18 (1) of the Act. Those notices were issued on the basis of police reports that those premises were being used as brothels. In reply amongst other pleas those respondents challenged the validity of S. 18. They moved the learned Magistrate to refer the question as to the validity of S. 18 to the High Court under S. 432 of the Criminal Procedure Code of 1898. As the learned Magistrate rejected that prayer, they moved the High Court under Art. 226 of the Constitution in Criminal Writs Nos. 3D to 7D and 10D of l962, challenging the vires of S. 18. Respondent in Criminal Appeal No. 82 of 1962 claims to be the tenant in flat No. 54 on the first floor of Japan Building, which premises had been attached in the proceedings against one Mst. Ambar under S. 18 (l). His case was that he had permitted the said Mst. Ambar to use those premises temporarily but she had vacated the same and, therefore, he was entitled to their possession, as according to him he was unaware of the fact that Mst. Ambar was using the premises in question for an improper purpose. But the learned Magistrate rejected his application holding that (a) there was no satisfactory proof of the fact that he was a tenant in those premises, and (b) he was aware of the unlawful use to which the premises in question were being put. Aggrieved by that decision, he moved the High Court of Punjab in Cr. Writ No: 12-D/62 to quash the order of the learned Magistrate on the ground the, S. 18 was ultra vires of Art. 14.

3. The aforementioned writ petitions were heard by Mahajan and Shamsher Bahadur, JJ. and by a common order, dated September 9, 1963, they allowed those petitions and quashed the notices issued to the respondents in criminal appeals Nos. 76 to 81 of 1965. They also quashed the order refusing to raise the attachment in respect of flat No. 54 of which Sri Chand the respondent in Criminal Appeal No. 82/65 claimed to be the tenant. The learned Judges held that "whenever action is taken under S. 18 independently of S. 7, it would offend Art. 14 of the Constitution and to that extent S. 18 would be ultra vires of the Constitution."

4. In the course of their order, dated 23rd July 1963, the learned Judges observed :

"The requirements for taking action under S. 18 or under S. 7 of the Act are identical. The Act leaves the choice of the action under one or the other provision to the executive in the case of persons similarly situate and thus can lead to discrimination without there being any rational basis for the same. The consequences of an action in one case are of an extremely penal nature whereas in the other case, that is, under S. 18 of comparatively inconsequential nature. The discrimination can come about where in the case of a number of prostitutes, who carry on their profession within two hundred yards of a public place, as defined in S. 7, the authorities may take action against some of them under S. 18 and against the others under S. 7. The fact that this can happen is not controverted by the learned counsel for the Delhi State. We also find no rationale behind this type of discrimination. The scheme of the Act also does not provide any key for such sort of