While taking a very serious note of the notorious crime of girl trafficking, none other than the Orissa High Court itself has just recently on June 29, 2020 in a latest, landmark and extremely laudable judgment titled Panchanan Padhi Vs State of Odisha in Case No.: BLAPL No. 2612 of 2020 has minced no words to categorically observe that trafficking of girls is an offence more heinous than drug trafficking but ironically less stringent. How can our lawmakers still take this for granted? How can our law makers still justify less stringent punishment for trafficking of girls as compared to drug trafficking?
At the outset, Justice SK Panigrahi who authored this commendable, comforting and courageous judgment makes it a point to first and foremost recollect what the legendary Justice VR Krishna felt about this woman issue by stating that, “No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free – free to live without sale of their young flesh to lascivious wealth or commercializing their luscious figures…..” It is our lawmakers who must bear this in mind always while enacting laws! How can less stringent punishment be ever justified by anyone for heinous offences like girl trafficking?
To start with, the ball is set rolling in para 1 of this noteworthy judgment wherein it is first and foremost observed that, “The instant case has once again given an opportunity to this Court to ponder as to how the opportunistic predators seize upon the vulnerability of some desperate and impoverished girls. The accused herein is allegedly notorious for his aplomb in identifying girls and capitalizing their distress condition but caught red-handed by police. The Petitioner herein has preferred the instant application under Section 439 of the Code of Criminal Procedure vide BLAPL No. 2612 of 2020 against the C.T. Case No. 379 of 2020 pending before the court of the Learned SDJM Bhubaneswar (T), CSI, Bhubaneswar for alleged offences punishable under Sections 4/5 of the Immoral Trafficking (Prevention) Act, 1956 read with Section 370(3)/467/471/120B and 34 of the Indian Penal Code. The court of the Addl. Sessions Judge, Bhubaneswar has rejected the application seeking grant of bail vide B.A No. 260 of 2014 filed by the Petitioner herein u/s 439 Cr.PC on 4.3.2020.”
While elaborating on the facts, it is then stated in para 2 that, “The factual matrix of the instant case as set out in the F.I.R. is that on 21.01.2020 at around 10:00 AM Shri Alok Kumar Jena, Inspector of Police, STF/informant received information from a reliable source that one Ibrahim Khan and one Ruksar Begaum of Danagohiri, from Pipili, Dist. Puri are regularly trafficking girls from Kolkata and other places and engage them in sexual exploitation for commercial purposes from which he derive income. It was also informed that the girls were being procured from Kolkata and they were housed in a rented house at Bishnukunj Ratha Road, PS-Shree Lingaraj, Bhubaneshwar. They were being exploited at the instance of Ibrahim Khan and Ruksar Begum. These girls were forcefully sent to various hotels and lodges where they were subjected to sexual abuse and exploitation. Upon receiving such information, the informant apprised the Superintendent of Police, STF, Bhubaneswar who recorded the said facts vide Station Diary Entry No. 4 dated 21.01.2020 and directed the informant to reach the spot along with a team of police officers including some lady officers to conduct the raid.”
Going forward, it is then brought out in para 3 that, “Accordingly, the informant acc ompanied by a team of police officers including some lady officers proceeded to the aforementioned house where the kingpin Ibrahim Khan and his wife were residing. After reaching at the said house, which is a double storied building, they gheraoed the said building to prevent the egress or ingress by anyone. The informant proceeded to the first floor and knocked at the door of the first room and in response to the same one of the girls opened the door and he could notice the presence of six girls in the room. He, thereafter disclosed his as well as his team’s identity by showing their Identity Cards and asked for production of their identity cards. The six girls disclosed their respective identity and they were stated to have been brought from Kolkata by alluring them to work in some beauty parlors in the city.”
Be it noted, it is then revealed in para 4 that, “Before conducting the said raid, the informant secured the presence of two respectable persons of the locality as witnesses to the search and seizure operation. Thereafter, while conducting the personal search of the girls by the lady police officers, they found six mobile phones, thirty unused condoms etc. Those articles were seized in presence of the seizure witnesses and a seizure list was prepared on the spot which was duly signed by the witnesses as well as the victims.”
More damningly, it is then unfolded in para 5 that, “During examination of the victims, they revealed that the aforesaid Ibrahim Khan and Ruksar Begum and certain other unknown persons have procured them from Kolkata and on some false pretext of employment in beauty parlors forced them into sexual slavery and prostitution. As per victims’ statement made under Section 161 of Cr.P.C. the present petitioner was forcibly sending them to various hotels and lodges and were arranging customers for such illegal act. The Petitioner herein was acting in concert with aforesaid principal accused by making wide publicity among the prospective customers to be in touch with them for such act. The victims have further disclosed that Ibrahim Khan and Ruksar Begum have kept them in the said rented house and they used to give them a sum of 1000/- per day as allowance and lion’s share of the amount received was pocketed by them. The informant and other officers nabbed Ibrahim Khan and Ruksar Begum from the adjacent rooms of the said building. On being interrogated they confessed that they were running a prostitution racket by forcefully exploiting the victims in the adjoining rooms. During the search of Ibrahim Khan, 5 Aadhaar Cards of the girls along with a mobile phone and cash of 40,000/- were recovered from his pant pocket and were seized in the presence of witnesses. During interrogation, the above-named accused persons also confessed that the Aadhaar Card were forged documents to facilitate the business of prostitution.”
As a corollary, what follows next is then stated in para 6 as: “The victims were rescued and were kept in shelter homes. The accused persons were apprehended U/s. 4 and 5 of Immoral Trafficking (Prevention) Act read with Sections 370(3), 467, 471 & 120B/34 of Indian Penal Code who were later produced along with seized articles before STF. Accordingly, the FIR was drawn and these accused persons have been forwarded U/s. 4/5 Immoral Trafficking (Prevention) Act read with Section 370(3), 467, 471 & 120B/34 of Indian Penal Code on 22.01.2020.”
To put things in perspective, it is then observed in para 9 that, “Perused the up-dated case diary and the rival submissions of the parties, wherein it is deciphered that the victim girls have clearly stated against the accused persons in their statements recorded U/s. 161 of Cr.PC. It prima facie reveals that the principal accused Ruksar and Ibrahim have kept them in the house for the purpose of sexual exploitation. The statement of the victim girls also hints that the accused persons were threatening them to face starvation if they try to flee from the said house. In addition, the accused have fabricated their Aadhaar Cards and the seizure list also reveals that 30 unused condoms along with their mobile phones were seized from the possession of victim girls. The instant petitioner was also alleged to have been working in partnership with principal accused. Prima facie, it appears to be a complete racket run by the principal accused and his accomplice though the complete picture will emerge from a thorough trial.”
While lambasting the trafficking crime, it is then held in no uncertain terms in para 10 that, “The crime of trafficking girls is dehumanizing as well as utterly shameful to our civilized society. This issue has sufficiently captured the attention of our Constitution makers and also appeared on the radar screen of modern Indian Law. Despite constitutional dictums and legal provisions, the humanity is still struggling to combat human trafficking. It is a complex policy challenge which intersects many policy paradigms. The international policy frameworks have also been in place since long, especially, since 1904, the international community has been working together to understand and put together the pieces of the human trafficking puzzle. There are six international treaties that explicitly address issues related to human trafficking. However, this issue has only topped the policy agendas of the international community in 2000. [United Nations drafted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Anti Human Trafficking Protocol-2000)].”
While lamenting the deep inroads made by this menace of trafficking, it is then underscored in para 13 that, “Unfortunately, despite the protection afforded by the Constitution, the stringent laws and large number of treaties and conventions, commercial sexual exploitation with its concomitant human rights abuse is expanding multi-fold. The human rights discourse is profoundly silent on this grave issue. Such exploitation is now not confined to conventional brothels, but is spreading everywhere including residential areas, hotels, clubs etc. as apparent in the present case. One cannot be oblivious of the fact that the ‘flesh trade’ today is evolving into varied forms with the advent of new technologies. This makes the strict enforcement of these laws even more challenging. The Parliamentary Standing Committee Report on the Immoral Traffic (Prevention) Amendment Bill, 2006 dated 23.11.2006 notes that there were about 30 lakh women in the prostitution trade. According to the National Crime Records Bureau, 5264 human trafficking cases were reported in India in 2018. Disturbingly, about 25 percentage of such cases were for the purposes of sexual exploitation for prostitution and child pornography. The commercialization of sexuality is seen as a part of the explanation for prostitution. It is seen as a worst expression of the unequal distribution of power between men and women. Despite the substantial role of poverty in promoting sex commerce and human trafficking, the complexities of cultural values, attitudes and practices towards sex deserve serious consideration as well. The multi pronged approach to gender reforms – one that ranges from institutional education to grass-root activism – will provide the rupture in the tradition of a perverted imagined values towards sexuality.”
More significantly, it is then very rightly pointed out in para 15 that, “The High Courts of several states have not only recognized the menace of human trafficking but also taken up cases for strengthening the Institutional Machinery and various statutory agencies mandated by various laws. The High Court of Delhi in Bachpan Bachao and Ors. vs. Union of India (UOI) and Ors. ILR (2010) Supp (5) Delhi 376, High Court of Gauhati (Agartala Bench) in Tara Das vs. State of Tripura 2009 (1) Crimes 745 (Gau.) and High Court of Gujarat in Sahyog Mahila Mandal and Ors. vs. State of Gujarat and Ors 2004 GLH (2) 236 : (2004) 2 GLR 1764 have delved into issues of human trafficking, prostitution and its implications on the society. It has been emphasized on the fact those courts and other instrumentalities of the State have to deal with these issues in a sensible manner and there is a need to come out of stereotype attitude. Even if the accused had a limited role in selling the victims or in the prostitution business, no leniency can be shown to him inasmuch as he played a major role in the racket to push the helpless and innocent girls into prostitution. If any leniency is shown for committing such heinous crime, like forcing a girl into prostitution, it would amount to an affront to the statutes which govern the field and, more importantly, the Constitution of India.”
Most significantly, no words are then minced to say in simple and straight language in para 17 that, “The kingpins behind such sex rackets exert considerable influence in the area and are bound to intimidate the victims. More importantly, the safety and security of the witnesses is a major concern, especially in view of the fact that these are organized crime syndicates. The nature of crime is such that grant of bail will only embolden such hardened criminals, who keep evading the law and punishment, to perpetuate such heinous crimes. The complex and troubling issue as emerged in the instant case, in essence, demonstrates a conflict between collective morality of the society and markedly skewed legislations which mismatches the culpability of the participants in question (i.e. service provider, facilitator) and the recipient of the services. Though it involves clandestine and unlawful trafficking of girls but the law makers have missed the opportunity to prescribe a stringent punishment regime, even though the present offence is far more heinous than drug trafficking. There seems to be an all-pervasive puritan, moral, anti-prostitution posture of the Government, but in practice, there is a yawning gap between the law and its enforcement which results in abysmally low conviction rates.”
In essence, what is then chiefly mentioned in para 18 is that, “The principal accused, other accomplices and the co-accused, namely, Ibrahim Khan, Ruksar Begum, Ajay Bihari, Sunil Kumar Moharana, Keshab Sahoo, Aluddin Khan, Prashant Kumar Pradhan have already been granted bail by this court. This court is, therefore, constrained to grant bail to the accused in the instant case on the grounds of parity alone.”
Finally, para 19 then concludes by holding that, “In view of the facts and circumstances of the case as discussed above, it is directed that the petitioner may be enlarged on bail on some stringent terms and conditions as deemed just and proper by the learned S.D.J.M, Bhubaneswar. It is, however, clarified that the above observations shall not come in the way of a fair trial before the Ld. Trial Court and it will proceed to decide the matter on its own merits, uninfluenced by any of the observation made hereinabove. The bail application is accordingly disposed of.”
In conclusion, the bottom line of this latest, landmark and extremely laudable judgment is that it is high time and now the offence of girl trafficking must be taken most seriously! It very rightly laments that this offence is more serious than drug trafficking yet ironically less stringent. It also very rightly cites in para 14 the Report of the Committee on Amendments to Criminal Law which was headed by Justice JS Verma (Retd) and which submitted its report on 23.01.2013 stating that human trafficking is no less a serious crime than drug trafficking. It is high time and now our law makers must take the initiative to make offence of girl trafficking a more serious crime than drug trafficking and so hugely increase the quantum of punishment and fine so that it can act as a powerful deterrent to offenders!