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2006 Supreme(Guj) 128
2007 (2) GCD 1195 (Guj)
Hon’ble Mr. Justice K.M. Mehta
Pramod Bhagwan Nayak [Surat]
Versus
State of Gujarat & Ors.
Special Civil Application No. 21309 of 2005
Decided on 21/02/2006
Point in Issue :
Order of detention - Ground of - Running brothel or involved in immoral trafficing - Disturbance to public order - Finding as to - Sustainability.
Headnote:Head Note :
(a) Gujarat Prevention of Anti-social Activities Act, 1985 (Guj. Act 16 of 1985) — Sections 2, 2-C, 2(9), 3(2), 3(4), 6, 9(2) — Immoral Traffic (Prevention) Act, 1956 — Sections 2, 2(a), 2(f), 3, 4, 5 and 7 — Suppression of Immoral Traffic in Women and Girls Act, 1956 — [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Chapter XVI, XVII — Arms Act — Chapter V — Constitution of India, 1950 — Articles 23 and 226 — Order of detention — Ground of — Running brothel or involved in immoral trafficing — Disturbance to public order — Finding as to — Sustainability — Order of detention of petitioner is firstly, challenged on ground of holding him habitual offender under the Act of 1956 — Considering the law laid down by Supreme Court and this Court and considering the provision under Article 23 of Constitution the detaining authority has rightly held that he is a habitual offender — After examining the material on record detenu, certainly falls within the definition of immoral traffic offender as defined in the Act — There is, therefore, no illegality in the finding of the authority on this contention — There is also no delay in passing the impugned order as alleged — The last offence was committed by petitioner on 19.06.2005 and order was passed on 23.08.2005 — During the period of two months authority has recorded the statement of witness and same were verified — In view of the same there is no delay in passing the order — No fault can also be found in the claim of privilege made by authority — The authority having considered all the relevant material properly has claimed the privilege in not disclosing the name of witnesses — The order is consistent with general background and character of petitioner — Considering the magnitude of offence which affects a large number of people activities of petitioner falls within ambit of Section 2(9) of the Act and the activities of petitioner constitutes disturbance of public order and not of law as contended —There is, therefore, no infirmity in the impugned detention order passed by authority and petition has no force.
Held :
As regards first contention regarding habitual offence to be considered, Court has considered the judgment of the Hon’ble Supreme Court in the case of Mustakmiya Jabbarmiya Shaikh, Piyush Kantilal Mehta and other cases in this behalf. However, Court has also considered Articles 23 of the Constitution of India and other provisions of Immoral Traffic (Prevention) Act and also the affidavit filed by the respondent and the judgment of this Court in Amanullakhan Kudratallakhan Pathan, which Court has referred while considering the contention of AGP which has been confirmed by the Hon’ble Apex Court in the case reported in AIR 1999 SC 2197. The first contention raised by the petitioner has no substance.
[Para 34]
As regards the second contention that in this case offence is committed on 19.06.2005 and the order is passed on 23.08.2005 and there was a delay of two months, The authority after registering the same has recorded statement of witnesses on 09.07.2005 and 10.07.2005 and the same was varified on 22.08.2005 and thereafter passed the impugned order in this behalf. In view of the same, there is no delay in passing the order. [Para 35]
As regards contention of the Advocate for the petitioner that the authority claimed privilege under Section 9(2) of the PASA Act is not proper and not genuine. Court has considered the facts and circumstances of the case and also considered the grounds of detention and the statements of the witnesses. The authority is in right in claiming privilege udner Section 9(2) of the Act. Court has also considered the judgement of Division Bench of this Court as well as Full Bench of this Court. While claiming privilege from those judgements whether the detaining authority can be said to be considered all the relevant material properly or not, the question will have to be decided with reference to the facts of the case. As regards premises potential given by the user regarding statement is concerned, one has to consider general background, character. [Para 36]
The other contention which has been taken is that the offence committed by the petitioner does not fall within the ambit of Section 2(g) of the PASA Act and the activity of disturbance of law and order and not public order. If one has to consider the magnitude of offence which affects a large number of people. The authority has considered all these aspects properly and there is no violation of fundamental right of the petitioner. [Para 37]
Head Note :
(b) Immoral Traffic (Prevention) Act, 1956 — Section 2(a) — Brothel — Definition of — Essential ingredients — Stated.
Held :
The essential ingredient, therefore, is a place being used for the purpose of sexual exploitation or abuse. The phrase “for the purpose of” indicates that the place being used for the purpose of the prostitution may be a brothel provided a person uses the place and asks for girls, where the person is shown girls to select from and where one does engage or offer her body for promiscuous sexual intercourse for hire. In order to establish prostitution, evidence of more than one customer is not always necessary. All that is essential to prove that a girl/lady should be a person offering her body for promiscuous sexual intercourse for hire. Sexual intercourse is not an essential ingredient. The inference of prostitution would be drawn from diverse circumstances established in a case. Sexuality has got to be established but that does not require the evidence of more than one customer and no evidence of actual intercourse should be adduced or proved. It is not necessary that there should be repeated visits by persons to the place for the purpose of prostitution. A single instance, coupled with the surrounding circumstances may be sufficient to establish that the place is being used as a brothel and the person alleged was so keeping it. The prosecution has to prove only that in a premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire. On proof thereof, it becomes a brothel.” [Para 28-A]
Law Laid Down :
The essential ingredient of term brothel is a place being used for the purpose of sexual exploitation or abuse.
Case Law Analysis :
Amanullakhan Kudratallakhan Pathan vs. State of Gujarat & Ors., 1999 (1) GLH 1003 [Para 19] = AIR 1999 SC 2197 [Para 22];; Balkrishna Kashinath Khopkar vs. The District Magistrate, Thana, 58 BLR 614 [Para 24];; Bai Amina W/o Ibrahim Abdul Rahik Alla vs. State of Gujarat & Ors, 22 GLR 1186 [Para 25];; Chandrakant N. Patel vs. State of Gujarat & Ors., 35 (1) GLR 761 [Para 26];; Vishal Jeet vs. Union of India, AIR 1990 SC 1412 [Para 27];; Gaurav Jain vs. Union of India & Ors., 1997 (8) SCC 114 [Para 28] = 1998 (4) SCC 270 [Para 30];; Sahyog Mahila Mandal & Anr. vs. State of Gujarat & Ors., 45 (2) GLR 1764 [Para 32].—Relied on
Appearance :
Mr. Amrish Pandya, for the Ms. Krishna U. Mishra, for Petitioner(s) No.1
Mr. L.R. Pujari, AGP, for the Respondent
Ms. Banna Datta, Amicus Curiae.
Conclusion :
Considering the magnitude of offence which affects a large number of people activities of petitioner falls within the ambit of ‘immoral traffic offender’ and the activities of petitioner constitutes disturbance of public order — There is, therefore, no infirmity in the impugned detention order passed by authority.
Cases Referred :
Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police & Ors., 1995 (2) GLR 1268;; Piyush Kantilal Mehta vs. Commissioner of Police, 1989 (1) GLR 563 (SC);; Ashokbhai Jivraj @ Jivabhai Solanki vs. Police Commissioner Surat & Ors., 2001 (1) GLH 393;; T.A. Abdul Rahman vs. State of Kerala, AIR 1990 SC 225;; Anand Prakash vs. State of U.P., AIR 1990 SC 516;; Pradeep Nilkanth Paturkar, AIR 1994 SC 656;; Elesh Nadulal Patel, 1997 (1) GLH 381;; Thakor Girishji, 2002 (1) GCD 338 [Para 8];; Kalidas Kahar 1993 (2) GLR 1659;; Ranu Bhikabhai Bharwad, 2000 (3) GLR 2696;; Kajalben Sindhi, 2000 (1) GLH 320;; Kishore Nagin Parmar, 2004 (4) GLR 3236;; Kaliyo Alias Noor Mohammad, 1997 (1) GLH 1017;; Vishaljeet vs. Union of India & Other States & Union Territories, 1990 (3) SCC 318.
Decided in Favour of :
Respondent
Petition Dismissed
K.M. Mehta, J.—Pramod Bhagwan Nayak, petitioner, original detenu, has filed this habeas corpus petition challenging the order dated 23.08.2005 passed by the Police Commissioner, Surat City, Surat, Respondent No. 2 herein. The petition was filed before this Court on 13.10.2005. When the matter was placed for hearing on 21.10.2005 this Court has issued rule. On behalf of the respondent Mr. L.R. Pujari, learned AGP, appears. With the consent of the parties the matter is taken up for final disposal.
2. Mr. Amrish Pandya, learned Advocate, appears on behalf of Ms. Krishna U. Mishra, learned Advocate for the petitioner. He has invited my attention to the order of detention dated 23.08.2005 in which the authority has passed order under the provisions of Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “the PASA Act”). He has also invited my attention to the order of committal dated 23.10.2005 whereby the petitioner has been sent to Rajkot jail.
3. The learned Advocate has also invited my attention to the grounds of detention supplied to the petitioner by the authority. The grounds of detention reveal that the authority has recorded statements of witnesses on 20.05.2005 as well as 12.06.2005 and other material shown in the note and from the grounds it is alleged that the activities carried on by the detenu fall within “immoral traffic” as defined in Section 2(g) of the PASA Act. The grounds of detention further reveal that the detenu is an immoral traffic offender. He is carrying on such activity by taking on rent Flats at Belgiam Square, Japan Market, opp. Linear Bus Stand, Surat. The petitioner is engaged in the activity of immoral traffic by bringing girls and women from other cities to Surat and by supplying them to various customers in consideration of money and also providing rooms for the said purpose, he was running the business of prostitution and also earning his livelihood from the said income. It is also alleged in the grounds of detention that he is giving threats to the people who are coming on his way in such anti-social activities and also beating them in public and therefore, are not coming forward to file any complaint against the detenu in public. Thus it has been alleged that the activities are directly causing or are likely to cause harm, danger to life, property and public health. It has been further alleged in the ground that immoral trafficking is resulting in spreading sexual disease including dangerous diseases like H.I.V. Aids etc., and there is no need of any documentary evidence to prove that such activity is dangerous to public health particularly when there is sufficient material on record of the case to show that the detenu was involved in the anti-social activities of running brothel or involved in the offences of immoral trafficking. It was further stated in the ground of detention that with a view to immediately prevent him from continuing his such illegal activities in any manner prejudicial to the maintenance of public order and public health, after subjectively satisfying that such activities of the detenu cannot be curbed or prevented immediately by resorting to any other provisions of general law which would have been a time consuming process, as a preventive measure, the authority has passed order of detention against detenu under the PASA Act. This order was passed with a view to immediately prevent him from continuing such illegal and anti-social acitivities which are prejudicial to the maintenance of public order. The authority has passed the said order with full application of mind and in compliance and in consonance with the provisions of the PASA Act. It was further stated that all the relevant materials and vital documents which have a bearing on the aspect of the matter and which were available have been placed before the authority. It was stated that copies of all the documents which have been considered and relied upon by the
