The Bombay High Court has held that where minor girls are found during a raid in a place used for prostitution in the presence and custody of the accused, and the prosecution evidence of the panch witness, police witnesses, panchnama, and medical evidence reliably proves those foundational facts, the presumption under Section 6(2) of the Immoral Traffic (Prevention) Act, 1956 (PITA) is attracted. Once that presumption arises, the burden shifts to the accused to rebut it, and in the absence of rebuttal evidence, conviction under Section 6 of PITA can be sustained.
The Court also clarified that in trafficking cases involving minors, non-examination of victims or minor inconsistencies in prosecution evidence do not by themselves destroy the prosecution case if the core circumstances remain proved.
A Single Judge Bench of Justice M.M. Sathaye observed that offences under PITA are grave offences against humanity and society, and that trafficking of minors is especially heinous. The Bench noted that in such cases, rescued victims are often traumatised and may not be in a position to give clear statements or depose before the court, and therefore minor contradictions in the testimony of police officers and panch witnesses cannot be treated as fatal to the prosecution case.
The Bench found that the prosecution evidence of the panch witness, the police officers, and the panchnama consistently established that the two minor girls were found with the applicant in the raided premises. It also held that the apparent discrepancy in dates was not material, since the raid began on 26 August 1996 and continued past midnight into 27 August 1996, which explained why some witnesses referred to one date and others to the next. The FIR timing was also held to be sufficiently explained in light of the need to medically examine the girls and send them to the children’s home.
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On age determination, the Bench rejected the argument that no ossification test had been conducted. It held that the doctor had assessed age on the basis of X-rays along with clinical examination and secondary sexual characteristics, and that even allowing a margin of error, the girls would still be minors. The Bench also accepted the prosecution case that the statutory presumption under Section 6(2) of PITA applied, since the minors were found with the applicant in a brothel and the applicant had led no rebuttal evidence.
The Bench further held that the objection regarding absence of proof of participation of a Special Police Officer had no merit, because prosecution evidence showed that ACP Gawali, who was appointed as the Special Police Officer, was present during the raid. It also held that the judgments relied on by the applicant did not help her on the facts of the present case, and that no glaring procedural defect or manifest error of law had been shown to justify interference in revisional jurisdiction.
Briefly, the criminal revision arose from the conviction of the applicant under Section 6 of the Immoral Traffic (Prevention) Act, 1956 (PITA). The prosecution case was that, acting on information received on 26 August 1996, the police raided the 3rd floor of a building at S.V. Marg, Mumbai, where two minor girls were found in a room with the applicant. The girls were rescued, the applicant was arrested, and after trial the Magistrate convicted her under Section 6 of PITA, while acquitting her of the charge under Section 41 of the Juvenile Justice Act, 1986. The appellate court affirmed the conviction and sentence.
