The authority of the first respondent to register the FIR under the Immoral Traffic (Prevention) Act and the non-vitiating nature of procedural irregularities in conducting the search.

JUDGMENT :

G.K. ILANTHIRAIYAN, J.

Prayer: Criminal Original Petition filed under Section 482 of Criminal Procedure Code, to call for the records in the FIR Crime No. 969 of 2020 on the file of the first respondent police and quash the same.

1. This petition has been filed to quash the FIR in Crime No. 969 of 2020 on the file of the first respondent police, for the offences under Sections 3(2)(a),4(1),5(1)(a) of the Immoral Traffic (Prevention) Act r/w Section 4(1)(k) of the Tamil Nadu Prohibition Act and Sections 188, 269 of IPC as against the petitioners.

2. The case of the prosecution is that when the respondent police were on regular check up, they found that a Recreation club was running without any valid permission. It is also alleged that the petitioners and other accused are the owners of the club and they were doing prostitution business. Hence, the complaint.

3. The learned counsel appearing for the petitioners would submit that there are totally 9 accused in which the petitioners are arrayed as A1 and A2. They are running a Recreation Club on their own in the name of Kadal Pura Recreation Club, after obtaining necessary permission and proper license from the Prohibition and Excise Department. It is also periodically renewed by the department concerned. He would further submit that the provisions of the Act must be strictly followed, cogent and with the convincing material must be placed before this Court that the petitioners were involved in the offences. While being so, the second respondent ought not to have arrayed the petitioners as the accused without any specific allegation. The premises was let out by the landlord Mrs. P. Sridevi to one Ramamohan Durai for carrying out the business of bar, restaurant and entertainment events on monthly rental basis. The first petitioner entered into the business agreement with the said Ramamohan Durai on 27.03.2019. Therefore, the role played by the petitioners is that they handed over the premises for the purposes of skill development and to keep fit health and mind, away from day today human problems. That apart, the petitioners were not present at the time of search and they are no way connected with the activities of the recreation club. Only on the false information given by the competitor, the present impugned FIR has been registered as against the petitioners.

4. The first respondent is not the competent person to register the case under the Immoral Traffic (Prevention) Act [herein after called as ITP Act]. As per the provision under Section 13 of the ITP Act has not been complied with by the first respondent who had conducted the raid and may arrest of the accused persons is not a Special Police Officer as specified under the Act. Therefore, the first respondent has no jurisdiction to register the FIR under the ITP Act. He further submitted that the first respondent failed to follow the procedure laid down under Section 15 of the ITP Act.

5. In support of his contentions, he relied upon several Judgments in which this Court held in Crl. O.P. No. 30001 of 2019 in respect of the provisions under Section 15 of the ITP Act. By relying upon the judgment of this Court reported in Kadek Dwi Ani Rasmini and Others vs. K. Natarajan and Others, 2019 (1) LW Crl. 94 held that the inspection was not carried out by the Special Police Officer or the Trafficking Police Officer or the Officer who carried out the inspection, was not an authorized Officer under Section 15 of the Act. Further, held that if the search and inspection is not carried out by following the procedure prescribed under Section 15 of the Act, the entire proceeding is illegal in the eye of law. The Police officer failed to follow the mandatory procedure as contemplated under Section 15 of the ITP Act.

6. This Court held in Crl. O.P. No. 10334 of 2022 in the case of Udhaya Kumar vs. State Rep. by the Inspector of Police, Anti-Vice Squad-II Police Station, Chennai CCB and Another on relying upon the Judgment of the Hon'ble Su