Reserved on : 23.03.2018 Delivered on : 29.03.2018
Court No. - 29
Case :- CRIMINAL MISC. WRIT PETITION No. - 1903 of 2018 Petitioner :- Bilal Khan And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Anoop Trivedi Counsel for Respondent :- G.A.
Hon'ble Govind Mathur,J. Hon'ble Ashok Kumar,J.
The petitioner has preferred this petition for writ to question correctness of the order dated 20.12.2017, passed by the City Magistrate, Ghaziabad rejecting an application for de- sealing of the hotel owned by him.
In brief the facts of the case are that on 14.11.2017 a police team while in search at the hotel owned by the petitioner, noticed activities of prostitution, thus lodged a case for commission of offences under Sections 3, 4, 7 (1), 7 (2) & 5 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the Act of 1956) against three persons, including the petitioner. Beside the hotel of the petitioner, certain other hotels too were searched and cases were lodged against the persons relevant under the Act of 1956. The police team then informed the City Magistrate, Ghaziabad, who in turn came to the spot of occurrence at one hotel and then the premises, including the premises of the hotel owned by the petitioner, were sealed. An application then was preferred on 8.12.2017 by the petitioner before the City Magistrate to de-seal the premises but that came to be rejected under the order impugned dated 20.12.2017. The City Magistrate, while rejecting the application, observed that the case concerned is under investigation and no memo of sealing the hotel is annexed with the application therefore, no justification is there to pass any order at his level.
While assailing the order aforesaid, the argument advanced by learned counsel appearing on behalf of the petitioner is that the police sealed the hotel on 14.11.2017 without following due procedure of law, contemplated under Section 18 of the Act of 1956 and, as such, the sealing on its face is bad. It is further submitted that the Magistrate has acted in gross abuse of powers, in as much as, the sealing was made under his instructions but he failed to examine the application, preferred by the petitioner on merits. Much emphasis is given on the authority of the police team to seal the hotel without adhering the process under Section 18 aforesaid.
Per contra, as per learned Additional Government Advocate, the police team while making search found immoral traffic activities in the hotel and, therefore, as per Section 102 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), considered necessary for the purpose of investigation to seize the property and, as such, there was no illegality as alleged. It is also submitted that the Magistrate rightly dismissed the application as the seizure of the property was not made at his instance but as per provisions of Section 102 Cr.P.C.
Heard learned counsels for the rival parties.
At the threshold we would like to state that the stand taken by the respondents is not at all tenable as the power under Section 102 Cr.P.C. can be used by the police to seize the movable property only. The police under the provision aforesaid has no power to seize immovable property and the word 'seize' under Section 102 Cr.P.C. would mean only taking actual possession of movable property.
We are also not in agreement with the argument advanced by learned Additional Government Advocate that the hotel was not seized under instructions of the City Magistrate. A bare perusal of the FIR makes it crystal clear that the Magistrate was not only informed by the police about the action taken but he also came at one hotel where too search was made. True it is that the Magistrate did not draw any order sheet in this regard but that does not mean that the action was not taken under his instructions. His presence at the spot on having information and mention about his instruction clearly indicates that it was he only who after having necessary information, directed the police to act upon for seizure. It is important to notice that under Section 18 of the Act of 1956, the closure of brothel and eviction of offender from the premises can be made only under orders of the Magistrate. Under Section 18 of the Act of 1956, the authority for closure of brothel and eviction of offender from the premises is available to a Magistrate subject to compliance of the procedure given therein. In the case in hand no procedure, given under Section 18 of the Act of 1956, was adhered. As such the seizure by the police virtually amounts to closure of the premises without following the procedure. The same hence is apparently bad.
The Magistrate further failed to appreciate that the police had no other authority under the Act of 1956 for seizure / closure of the premises except provided under Section 18 of the Act of 1956. This power could have been exercised only under the orders of the Magistrate. The Magistrate in these circumstances should have examined the merits of the application, preferred by the petitioner.
In view of whatever stated above, we deem it appropriate to dispose of this petition for writ by directing the City Magistrate, Ghaziabad to consider and decide the application of the petitioner afresh and in accordance with law, within a period of seven days from the date the petitioner presents a certified copy of this order before him.
In the event of failure to dispose of the application within the period prescribed, the petitioner shall be at liberty to get the hotel de-sealed by informing the Station House Officer, Police Station Kotwali, District Ghaziabad.
Order Date :- 29.3.2018 pk (Ashok Kumar,J.) (Govind Mathur,J.)