sat 1 wp 851-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 851 OF 2011 Gunavati Bhavarlal Mehta & Anr. ...Petitioners vs. The State of Maharashtra & Anr. ...Respondents Mr.S.K. Chourasia with Ms.Fatima Khan i/b. Mr.S.N. Raj for the Petitioner. Mrs.P.P. Shinde, APP for the State. CORAM : B.H. MARLAPALLE & U.D. SALVI, JJ. JULY 20, 2011 P.C. :- 1 Heard Ms.Fatima Khan holding for Mr.S.N. Raj, the learned Counsel for the petitioners. Mrs.Shinde, the learned APP appears for the State of Maharashtra. 2 The petitioner had approached this Court in the earlier round in Criminal Writ Petition No. 3657/2010 challenging the order dated 30th November, 2010 passed by the Commissioner of Police, Brihan sat 2 wp 851-2011 Mumbai, under Section 18(1)(a) and 18(a)(b) of the Immoral Traffic (Prevention) Act, 1956 and the said order was set aside on the ground that the Commissioner of Police, who passed the impugned order, had not heard the petitioner and the hearing was given by his predecessor. The Commissioner of Police, who passed the order, was expected to record his own satisfaction and nor merely place reliance on the subjective satisfaction arrived at by his predecessor. The impugned order was, therefore, quashed and set aside. On 17th March, 2011, a fresh order of eviction came to be passed under Section 18(1)(a) and 18(a)(b) of the Immoral Traffic (Prevention) Act, 1956, by Shri Arup Patnaik, who succeeded Shri Sanjeev Dayal, and hence, this petition in the second round. 3 It is submitted by the learned Counsel for the petitioners that the fresh order on 17th March, 2011 also suffers from the same illegality which was sought to be corrected in Criminal Writ Petition No. sat 3 wp 851-2011 3657/2010 and this fresh order is also required to be quashed and set aside on the very same ground as noted in the order passed by this Court on 23th December, 2010. One paragraph of the said order would be sufficient to set it aside and it would indicate that the application of mind to the material on record was by the predecessor Police Commissioner and the successor Police Commissioner did not record his satisfaction to the material on record as he had not heard the petitioner. “Accordingly, you remained present for personal hearing before my predecessor on 25/02/2011 along with your advocate. As per the record he was not convinced with your written and oral replies to the Show Cause Notice and was convinced that the aforesaid premises is being used as a brothel or for carrying on prostitution. From the available record and material placed before me I am convinced that the aforesaid place is used as a brothel and proceed to confirm proposed action of attachment of aforesaid premises for a period of one year.” 4 This order also clearly shows that the sat 4 wp 851-2011 personal hearing was granted to the petitioner on 25th February, 2011 by Shri Sanjeev Dayal and not by Shri Arup Patnaik. When this was brought to the attention of the learned APP, she has placed before us a copy of the letter dated 20th July, 2011 received from the Senior Inspector of Police, Social Service Branch, CB, CID, Mumbai. As per the said letter, the Commissioner of Police, Brihan Mumbai, has decided to hear the petitioners afresh and pass a fresh order under Section 18(1) of Immoral Traffic (Prevention) Act, 1956. The petitioners have been directed to remain present before the Police Commissioner for hearing on 28th July, 2011. 5 For the reasons set out in our the order dated 23rd December, 2010, this petition also succeeds and the impugned order dated 17th March, 2011 is hereby quashed and set aside. The petitioners shall appear before the Commissioner of Police, Brihan Mumbai, on 28th July, 2011, for fresh hearing. On completion of the hearing, an appropriate order under sat 5 wp 851-2011 Section 18(1) of the Immoral Traffic (Prevention) Act, 1956 be passed, as expeditiously as possible, and preferably within four weeks. 6 The petition is disposed off. (U.D. SALVI, J) (B.H. MARLAPALLE, J)