Customers cannot be prosecuted under trafficking laws without evidence of knowledge regarding the exploitation of individuals involved.

S.S. Mishra, J.

1. An FIR No. 212 dated 19.05.2018 in UPD, Bhubaneswar Capital Police Station was registered against many accused persons under Sections 3 , 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956. The present petitioners were also named in the FIR. The allegations against the petitioners in the FIR in precise were that being the customers, they were availing services from a Spa Centre. Under the guise of running a Spa Centre, a brothel is being run from the same place. One Surendra Kumar Mohapatra under the managership of Sanjay Kumar Rana was running the Spa in the name and style of “H2O Spa And Hamam”. It is alleged that they procure the girls and using them for prostitution. On 19.05.2018 a raid was conducted by the Police, eight young girls were found inside the Spa, out of them seven girls were found to have been doing sexual activities with seven persons. They were found in a compromising position. It is alleged that the present petitioners were also engaged in sexual activities with two girls. All the girls were confronted. They stated that Rs. 2,000 each has been charged for giving sexual favour to the clients by the Manager of the Spa. The girls disclosed their identities. On verification of the passports and visa, it was ascertained that all these girls were from Thailand. The FIR indicates that the girls were of the age range from 27 to 35. The passports of the girls were confiscated, and they were subjected to investigation and were let off.

2. After the investigation, the Police have filed the charge sheet on 17.06.2021. In the charge sheet apart from the offences under Sections 3 ,4,5,6 and 7 of Immoral Traffic (Prevention) Act,1956, two more higher offences are added i.e. the offences under Sections 370 (3) and 370A (2) IPC . Relevant would be reproduced the provisions: -

“Section - 370. Trafficking of person -

(1) xxxxxx

(2) xxxxxx

(3) Where offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

(4) xxxxxx

(5) xxxxxx

(6) xxxxxx

(7) xxxxxx

Section - 370(A) Exploitation of a trafficked person.-

(1) xxxxxx

(2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.”

3. Perusal of Section 370A (2) of the Act indicates that whoever knowingly by or having reason to believe that a person having trafficked, engaged such person for sexual exploitation in any manner shall be punished with the imprisonment for a term which shall not be less than three years but which may extend to five years and shall also be liable for fine. However, the issue as to whether the customer has the knowledge that the person/women is trafficked or engaged for sexual exploitation needs to be adduced from the material on record. In the light of the aforementioned provisions the allegation against the petitioners in the charge sheet is analyzed in the succeeding paragraphs.

4. The petitioners are primarily aggrieved by the addition of aggravated/higher offences under Sections 370 (3) and 370A (2) of IPC .

5. Mr. Amit Bose learned counsel for the petitioners submits that the addition of aforementioned two offences and taking cognizance for the said offences by the trial Court is misplaced under law. The petitioners are neither the owner of the Spa nor the Managers, rather