1 Cri.Appln.No.34 of 2011 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 34 OF 2011 Smt. Savitri @ Sumitra Narayan Gauda ... Applicant Versus State of Maharashtra and Anr. ... Respondents Mr. I.S. Thakur, i/by M/s. Global Juris Consults, Advocate for the applicant. Mr. D.R. More, A.P.P. for State. CORAM : K.U. CHANDIWAL,J. DATED : AUGUST 22, 2011 P.C. Heard the learned counsel for the applicant and the learned A.P.P. 2. The applicant questions legality of the order recorded by respondent no. 2 Commissioner of Police, Mumbai for eviction and closure of brothel under section 18(1)(a) and 18(1)(b) of the Immoral Traffic (Prevention) Act, 1956 dated 4.1.2011. 3. The status of the applicant Smt. Savitri to be owner of the disputed premises by and large is not in question. Indeed there was leave and licence agreement effected dated 12.3.2008 between the applicant Smt. Savitrai as licensor and one Kiran Naidu as licencee for the period of 22 months which by 2 Cri.Appln.No.34 of 2011 calculation was to expire on 11.1.2010. 4. Based on secret information, raid was conducted by the police on the premises owned by the applicant leased to above person on 17.12.2009 and FIR subsequent to the panchanama raid was also registered. There was pre- trap panchnama before proceeding to the site. 24 girls/women engaged in illegalities were noticed in the said premises. 5. The learned counsel for the applicant submits that being the owner of the property she had no control over the activities of the licencee. It cannot be construed that under her supervision the activities of conducting the brothel were carried in the premises leased to the licensee. The learned counsel submits that the show cause notice issued by the then Commissioner of Police to the applicant or the conductor of the brothel is identical in all particular materials barring referring each of the person either as owner or occupier or as brothel conductor or as pimp. Reply to the show cause notice dated 30.1.2010 is also placed on record. 6. The learned counsel submits that the order of eviction recorded on 4.1.2011 is by the subsequent learned Commissioner of Police as Magistrate and therefore, he could not do so as he was not aware of the facts and cannot be said to have gone through the record. 3 Cri.Appln.No.34 of 2011 7. Having read the order as a whole dated 4.1.2011, it is indicative that the incumbent magistrate, Commissioner of Police, before issuing the order of eviction had heard the petitioner herein and even record illustrate that the petitioner was accommodated from time to time. Such hearing was given on 9.12.2010. Therefore, it would not be feasible to accept that the incumbent, the Commissioner of Police/ Magistrate did not apply his mind to the facts of the case. 8. The another feature of the matter is the order of eviction and closure of brothel dated 4.1.2011 which dwells as under : "An order for eviction and closure of a brothel for a period of one year from the date of its actual attachment is hereby being issued under section 18(1)(a) of the Immoral Traffic (Prevention) Act, 1956 to Smt. Savitri @ Sumitra Narayan Gauda, First and Second Floor, Building No. 429 and 9, Noor Mohammed Compound, Congress House, Opp. Queen Mary School, Grant Road, Mumbai 7 within seven days from receipt of this order. An order is hereby issued under section 18(1)(b) of the Immoral Traffic (Prevention) Act, 1956 directing you that during the period of one year, from the date of this order, you shall obtain my previous approval before leasing/letting out or handing over the possession of the said premises to any person. Under Section 18(4) of the Immoral Traffic (Prevention) Act, 1956, any lease or agreement made by you i.e. Smt. Savitri @ Sumitra Narayan Gauda, regarding the premises, at the time, shall become void and inoperative from the date of hits order for a period of one year. 4 Cri.Appln.No.34 of 2011 That if you Smt. Savitri @ Sumitra Narayan Gauda, fail to comply with the above directions as given to you under section 18(1)(b) of the Immoral Traffic (Prevention) Act, 1956, appropriate legal action as specified under the said Act will be taken against you forthwith. " 9. There should not be any quarrel that the Magistrate has power for eviction and closure of the brothel on the charge as specified in the order. However, from the owner taking possession of the property and putting seal thereon, is not contemplated, even under the statute. It was imperative on the authorities concerned to see that the owner himself is coming within the bracket of occupier of brothel or conductor of Brothel. No such events are illustrated either from the panchanama or from the record. The very presence of the applicant during the course of raid by itself would not indicate that she had any interest of profit in the activities of brothel. None of the customers, women or conductor contended that the applicant as owner had contributed in the activities. 10. The second clause of the order of directing the applicant to take prior approval/permission from the learned Magistrate (Commissioner of Police) as per section 18(1)(b) of the Act. Even if any new agreement is entered into by the applicant, would be rendered void in terms of section 18(4) of the very Act. 5 Cri.Appln.No.34 of 2011 11. During the course of submissions, the learned counsel for the applicant candidly accepted that the applicant has no intention for the present to lease out the premises to any person at least upto 4th January, 2012. This statement is accepted. The learned counsel for the applicant also submit that if in future the applicant desires to lease out the premises to any person, she would necessarily approach the authorities, the Magistrate in this regard in terms of Section 18 of the said Act. The user of applicant for self need not be foreclosed. The owner herself was not occupier being the person running the brothel or carrying on prostitution in premises. Taking survey of the above facts, seal put by the authorities under order dated 4.1.2011 requires to be set aside. However, second part and third part to remain, to the effect, without seeking previous approval no agreement to be entered into. If still it is executed, it would be void. 12. Writ petition allowed to the above extent. Seal to be opened within a week. (K.U. CHANDIWAL,J.)