1. Rule. Heard forthwith. Respondents waive service.

2. An order passed by the Commissioner of Police in terms of Section 18 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as “the Act”) has been challenged in this petition. By the order under Section 18(1)(b), the Magistrate directed the petitioner that during the period of one year from the date of the order, he shall obtain his previous approval before leasing / letting out or handing over the possession of the said premises to any other person. This order was passed after a show-cause notice was given to the petitioner, and he was heard.

3. The allegations against the petitioner were based on a report received by the Magistrate / Commissioner from the Senior Inspector of Police, Anti Trafficking Cell. The material placed before the Commissioner / Magistrate revealed that on 28th August, 2007, the premises, Bungalow No. 27, 1st Floor, Dr. Ambedkar Road, Pali Village, Khar (West), Mumbai, were raided and searched under Section 15 of the Act by the Special Police Officer. During the raid, the petitioner was found along with his associates (pimps) carrying on prostitution by keeping three girls. The names of these girls are given. They were aged between 18 and 19 years, and the girls were rescued from the aforesaid premises. The petitioner was arrested as the landlord / owner, his three associates were also arrested as pimps. Then the Commissioner of Police was satisfied that the petitioner and his associates were in possession of the premises, which were being used improperly for prostitution as a brothel for carrying on illegal trade within the meaning of Section 7(1) of the Act, and the aforesaid premises fall within two hundred metres from a temple and a sports academy. These allegations were found substantiated and, therefore, the impugned order was passed.

4. The learned counsel for the petitioner has only attacked this order on one ground, which has not been taken in the petition, but has been argued at length. He submitted that the Hon'ble Supreme Court has laid down the law that action under Section 18(1) of the Act cannot be taken till prosecution under Section 3 or 7, as the case may be, is not initiated and disposed of. In order to appreciate the argument made by the learned counsel for the petitioner and also to understand the law laid down by the Hon'ble Supreme Court in its Constitution Bench Judgment reported in A.C. Aggarwal, SubDivisional Magistrate, Delhi, & Anr. v. Mst. Ram Kali, etc., reported in AIR 1968 S.C. 1, certain provisions of the Act need to be looked into.

5. Section 3 of the Act lays down as under:-

“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 willfully 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 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 imp