ANUP GANPAT GONDKAR ALIAS ANUP RAJENDRA GONDKAR AND ANOTHER vs THE STATE OF MAHARASHTRA
- Court
- Bombay High Court
- Case type
- Writ Petition
- Decided on
- 17-03-2026
2026:BHC-AUG:11692
990.Cri.WP-1405-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1405 OF 2025
1. Anup Ganpat Gondkar
(Actual Name)
Anup Rajendra Gondkar
(As per Charge-sheet)
2. Parmilabai Ganpat Gondkar
…Petitioners
Versus
…Respondent
State of Maharashtra
APPEARANCES :
Advocate for Petitioners : Mr. Sanket S. Kulkarni
APP for Respondent/State :
Mr. K. K. Naik
:
CORAM MEHROZ K. PATHAN, J.
th
Date On Which The Arguments Were Heard
: 25 FEBRUARY 2026
th
Date On Which The Judgment Is Pronounced
: 17 MARCH 2026
JUDGMENT :
1. The Petitioners have filed the present petition
challenging the order dated 21.07.2025 passed by the Sub-
Divisional Magistrate, Shirdi, whereby the Petitioners were
evicted from the premises owned by them in exercise of powers
Page 1 of 18
990.Cri.WP-1405-2025.odt
under Section 18 of the Immoral Traffic (Prevention) Act, 1956
(hereinafter referred to as the ‘PITA Act’), and the premises of
Hotel Shirdi Sai Inn were directed to be closed for a period of one
year.
FACTS :
An FIR bearing No. 1112/2023 is registered with the
2.
Shirdi Police Station, Ahilyanagar on 21/12/2023 under Sections
3, 4, 5, 7 and 8 of the Immoral Traffic (Prevention) Act, 1956. In
the FIR it is alleged that the Informant is serving as a Police
Constable at Shirdi Police Station. On 21.12.2023, Police
Inspector Sopan Shirsath called the Informant along with other
police personnel and informed them that Superintendent of
Police, Shirdi Division, Shri Sandip Mitke had received
confidential information that within the jurisdiction of Shirdi
Police Station, at a hotel on Pimpalwadi Road, an individual was
running a prostitution racket under the guise of a "Spa Centre."
It is alleged that, acting on this information, Police Inspector
Shirsath summoned two panch witnesses, namely Bhausahib
Arjun Bade and Siddharth Bharat Surana. Thereafter, he also
summoned one person, Vishal Shivprasad Verma, to act as a
decoy customer. It is alleged that Police Inspector Shirsath
handed over Rs. 500/-in four currency notes to the decoy
customer and instructed him to hand over the said money to the
person conducting prostitution in the name of Spa Centre,
demand a woman for sexual intercourse, and after obtaining
such a woman, give a missed call to him. It is alleged that Police
Inspector Shirsath, along with the police staff, both panch
Page 2 of 18
990.Cri.WP-1405-2025.odt
witnesses, and the decoy customer, proceeded in a government
vehicle and one private vehicle, carrying a laptop, printer, and
other material required for preparing the panchanama. It is
alleged that at Pimpalwadi, Dattanagar, the vehicles were halted
and the decoy customer was sent inside Hotel Sai Inn, where the
Spa Centre was allegedly being operated. After about 15
minutes, Police Inspector Shirsath received a missed call from
the decoy customer.
. It is alleged that, at around 16:25 hrs, the police staff
along with the panch witnesses entered Hotel Sai Inn,
Pimpalwadi Road, Shirdi. Inside, one woman was found sitting,
who on inquiry in the presence of panch witnesses disclosed her
name as Sheetal Hardik Chaudhary. She was informed about the
purpose of the search. On further checking, in one of the rooms,
the decoy customer was found with another woman, who
disclosed her name as Nuri Mehbub Syed, resident of Chitta
Camp, Karbala Maidan, D-Sector, F-Line Slum, Khadi, Mankhurd
East, Mumbai, and working at the Spa Centre. On her person,
one mobile handset was recovered, and under the bed, four
packets of Manforce brand condoms were found.
3. It is alleged that, upon further search of the premises,
three more women were found, namely:
1. Shabana Salimuddin Shaikh, age 30, resident of Garib Nagar
Slum, Room No. 26, Bandra East, Mumbai.
2. Ruksar Imran Ansari, age 24, resident of Nehru Nagar Chawl,
near Anjuman High School, Kurla East, Mumbai.
3. Ganga Gorakhnath Khandare, age 33, resident of Akhada
Balapur, Taluka Kalamnuri, District Hingoli.
Page 3 of 18
990.Cri.WP-1405-2025.odt
. It is alleged that from each of them one mobile
handset was recovered, and from under the bed of their room,
six packets of Manforce brand condoms were found.
4. It is alleged that, when the decoy customer was
questioned in the presence of the panch witnesses regarding to
whom he had handed over the money, he pointed towards
Sheetal Hardik Chaudhary, who had accepted the same. On her
person, one mobile handset and Rs. 2,500/- in cash were
recovered, which included the marked notes of Rs. 500/- (four
notes handed to the decoy) along with one additional Rs. 500/-
note. It is alleged that, on further questioning, Sheetal Hardik
Chaudhary disclosed that the owner of the Spa Centre was the
Petitioner. With these allegations the complainant had lounged
the FIR bearing crime No. 1112 registered U/s. 3, 4,5,7 and 8 of
the Immoral Traffic (Prevention) Act, 1956. Dated 21/12/2023
registered at Shirdi Police Station, Shirdi Taluka- Rahata, District
Ahilyanagar.
5. Upon registration of the FIR and after conducting an
inquiry, the police inspector of the concerned police station had
submitted a proposal to the Collector, Ahilyanagar for an action
to be taken for closure eviction of the premises under Section 18
of the PITA Act. The Competent Authority i.e. the Sub-Divisional
Magistrate had issued notice to the concerned persons including
the Petitioners, about the proposed action to be taken under
Section 18(1) and sought their response to such proposal. The
Petitioners failed to file any response to such show cause notice
Page 4 of 18
990.Cri.WP-1405-2025.odt
and as such relying upon the reports submitted by the concerned
police inspector of Shirdi Police Station, the impugned order
dated 21.07.2025came to be passed by the Sub-Divisional
Magistrate, exercising powers under Section 18(1) of the PITA
Act, for closure of the premises.
SUBMISSIONS OF THE PETITIONERS :
6. The learned Counsel for the Petitioners submits that
the impugned order directing eviction of the Petitioners from the
premises and ordering its closure has been passed by the
authority without following the principles of natural justice. The
Petitioners were out of station for medical treatment and,
therefore, could not file their say. It is thus prayed that a fresh
opportunity be granted to the Petitioners in the interest of justice
by remanding the matter back to the competent authority for
conducting a fresh inquiry.
7. It is further submitted by the learned Counsel for the
Petitioners that the action under Section 18(1) can be taken by
the competent authority only if it is found that there is a violation
of Section 7 of the PITA Act. The Competent Authority without
going through any documentary evidence or any witness being
examined, had come to a conclusion that the said premises fall
within 200 meters of a public place and thus found a violation of
Section 7 of the PITA Act and passed the impugned order. The
said procedure adopted by the competent authority is bad in law
without any cogent evidence and thus liable to be set aside.
Page 5 of 18
990.Cri.WP-1405-2025.odt
It is further submitted by the learned Counsel for the
8.
Petitioners that when a strict penal action such as closure of a
premises is to be taken, the standard of proof ought to have
been more cogent, thereby leading to a safe conclusion that the
premises was situated within 200 meters of a public place. In the
absence of any evidence to establish that the premises fell within
200 meters of a public place, the impugned order is liable to be
set aside.
9. The learned Counsel further submits that the said
premises had been given on leave and licence to another person,
namely Kailash Shirsath, for running a spa by the Petitioners.
The said leave and licence holder, Kailash Shirsath, was not made
a party to the present proceedings, and therefore the impugned
order passed in the absence of the person who was actually
running the hotel as a spa could not have been passed. The
impugned order is therefore liable to be set aside on this ground
also.
10 . The learned Counsel further submits that the premises
could not have been closed in exercise of powers under Section
18, unless the Petitioners were convicted of an offence under
Section 3 or Section 7 of the PITA Act. He relies upon the
judgment of the Bombay High Court at Aurangabad Bench in
Rajaram @ Rajendra Wamanrao Ghogare Vs. State of
Maharashtra and Ors. (Writ Petition No. 1862/2024), to submit
that the present Crime No. 1112/2023 is the first crime
registered against the Petitioners, which is still pending. As such,
Page 6 of 18
990.Cri.WP-1405-2025.odt
applying the principles laid down by this Court in Rajaram @
Rajendra Wamanrao Ghogare (supra), unless the Petitioners are
convicted under Section 3 or Section 7 of the PITA Act, the
premises could not have been closed in exercise of powers under
Section 18. Hence, the impugned order is liable to be set aside.
SUBMISSIONS OF THE STATE :
11. As against this, the learned APP strongly opposes the
present petition. It is submitted by the learned APP that after
receipt of the proposal from the concerned police station, the
Police Inspector, Shirdi, was directed to serve notice upon the
Petitioners and the concerned persons regarding the proposed
action under Section 18 of the PITA Act. Accordingly, the Police
Inspector, Shirdi, submitted a report on 24.04.2025 to the
competent authority stating that notice had been served upon
Anup Gondkar (Petitioner No. 1) and Pramila Gondkar (Petitioner
No. 2), whereas the notice could not be served upon Sheetal
Choudhary as she was not found at the time of service.
12. It is further submitted by the learned APP that even
during the pendency of the proceedings before the competent
authority, the office of the Sub-Divisional Magistrate again issued
a notice dated 10.02.2025 to the Petitioners, which was served
upon Petitioner Nos. 1 and 2 through Shirdi Police Station and
acknowledgment of service was filed on 20.02.2025. However,
the Petitioners failed to file any response to the said notice dated
10.02.2025. Thereafter, the office of the Sub-Divisional
Magistrate once again served notice upon the Petitioners on
Page 7 of 18
990.Cri.WP-1405-2025.odt
26.03.2025 through Shirdi Police Station, and acknowledgment
to that effect was submitted to the office on 24.04.2025
regarding service of notice of the proceedings under Section 18.
Yet again, the Petitioners failed to file any response to the second
show-cause notice dated 26.03.2025 issued by the office of the
Sub-Divisional Magistrate. Thus relying upon the proposal
submitted by the Police Inspector, Shirdi, which was based on the
investigation conducted in Crime No. 1112/2023 for offences
under the relevant sections of the PITA Act, the competent
authority, after taking into consideration the relevant factors,
satisfied itself about the necessity of passing an order under
Section 18 of the Act for closure and eviction of the premises.
Accordingly, the impugned order came to be passed. The learned
APP therefore submits that the impugned order is just, proper,
and liable to be maintained.
. The learned APP further submits that the requirement
of conviction under Section 3 or 7 of the PITA Act, is for an action
under Section 18(2) and not under Section 18(1). Hence the
impugned is liable to be maintained.
REASONINGS
13. I have gone through the impugned order dated
21.07.2025 passed by the Sub-Divisional Magistrate, whereby
the Petitioners were evicted from the premises owned by them in
exercise of powers under Section 18 of the PITA Act. Insofar as
the first ground raised by the Petitioners, namely that the
principles of natural justice were not followed while passing the
impugned order, is concerned, the record shows that upon
Page 8 of 18
990.Cri.WP-1405-2025.odt
instructions from the competent authority, Shirdi Police Station
initially served notice upon the Petitioners and submitted
acknowledgment thereof to the office of the Sub-Divisional
Magistrate on 24.04.2025. However, the Petitioners failed to file
any response to that notice. Subsequently, during the
proceedings undertaken by the Sub-Divisional Magistrate, the
office of Sub-Divisional Magistrate again issued notice to the
Petitioners on 10.02.2025, and the report of service upon
Petitioners was submitted on 20.02.2025. Yet, the Petitioners
failed to file any reply or explanation to the said show-cause
notice. The record further indicates that another notice was
issued on 26.03.2025, and the report of service upon Petitioners
was submitted by Shirdi Police Station on 24.04.2025. Even
then, the Petitioners failed to submit their reply or explanation.
Thus, the principles of natural justice appear to have been
complied with, and it cannot be said that the impugned order
was passed without following them. There is nothing brought on
record to show that the Petitioners were medically unfit to file
their response. The contention raised by the Petitioners is
therefore baseless and stands rejected.
14. Insofar as the grounds raised by the Petitioners, that
there was no evidence of violation of Section 7 of the PITA Act
and in the absence thereof the impugned order could not have
been passed is concerned, it can be seen from the record that a
detailed report was submitted by the Police Officer to the
competent authority after registration of Crime No.1112/2023
under the Immoral Trafficking Act. The report states that the
Page 9 of 18
990.Cri.WP-1405-2025.odt
premises owned by the Petitioners, namely Hotel Sai Inn, Shirdi,
is situated at Pimpalwadi Road, wherein there are big hotels and
a residential area, and the nearby lodges and hotels are used by
the devotees visiting the Sai Mandir. It is further stated in the
report that about 100 to 150 meters from Hotel Sai Inn, Shirdi,
towards the west, there is a Marathi school wherein children from
the nearby area pursue their education. It is also stated that just
adjacent to Hotel Sai Inn, Shirdi, owned by the Petitioners, there
are Ashrams belonging to people from Andhra Pradesh,
Karnataka, and other States, where devotees of Sai Mandir
regularly visit and stay. The road in front of Hotel Sai Inn, Shirdi,
owned by the Petitioners, leads to Dattanagar, Silver Oak,
Lutebasti, Shindebasti, and other residential colonies situated
near Pimpalwadi Road, where the Petitioners’ hotel is located.
The Hotel Sai Inn, Shirdi, falls under Dattanagar, and within 70
meters of the hotel there is a Datt Mandir, though Shri Sai Baba
Mandir and Laxmi Mandir are situated about 300 meters from the
said hotel. It is further submitted by the proposing authority that
the Petitioners are running a brothel in Hotel Sai Inn, which is
situated on a public road in a city full of devotees visiting Sai
Mandir. The action of the Petitioners has brought disrepute to the
temple town, which is renowned for Sai Mandir, and therefore the
action was proposed.
15. Taking into consideration the aforesaid report, the
Sub-Divisional Magistrate i.e. the Competent Authority satisfied
itself with the aforesaid reports of the Shirdi Police Station and
found that the premises owned by the Petitioners fall within 100
Page 10 of 18
990.Cri.WP-1405-2025.odt
to 150 meters of the Marathi School, various adjacent Mandirs
and Hotels, and the residential colony which is a violation of
Section 7. The Competent Authority specifically observed in the
impugned order that the spot of offence and the premises owned
by the Petitioners fall within 200 meters of a public place, and as
such and that the premises was being used as a brothel, the
impugned order under Section 18 of the PITA Act was passed.
Thus it could be seen that once such proposal and report was
submitted by the Shirdi Police Station and a notice was served
upon the Petitioners who are the owners of the Hotel allegedly
run as brothel, it was for the Petitioners to file an appropriate
response to the said submission and lead evidence to the
contrary. In the absence of any explanation submitted by the
Petitioners to show that the premises owned by them do not fall
within 200 meters as stated by the police station, the competent
authority has rightly appreciated the report submitted by the
police authorities and found that there is a violation of Section 7
of the PITA Act. Consequently, the impugned order of
closure/eviction of the premises has been rightly passed. The
ground raised by the Petitioners is therefore misconceived and
stands rejected.
16. Insofar as the other ground raised by the Petitioners,
namely that they had given the premises on leave and licence to
one Kailash Shirsath, it can be seen that the Petitioners
themselves claim to be the owners of the premises. The
provision under Section 18(1) contemplates issuance of notice to
the owner, lessor, or landlord of such premises to show cause
Page 11 of 18
990.Cri.WP-1405-2025.odt
within seven days of receipt of notice as to why the same should
not be attached for improper use thereof. A perusal of the FIR
shows that Petitioner No.1, Anup, has been added as an accused
for running the said brothel, forcing women into prostitution, and
earning a livelihood out of prostitution with the assistance of
another accused, Sheetal Chaudhary. The said Sheetal was
apprehended on the spot during the raid, wherein she stated the
name of the owner of the premises as Anup Gondkar (Petitioner
No.1 herein). The record shows issuance of notice to Petitioner
No.1 and Sheetal Chaudhary, along with Petitioner No.2 (mother
of Petitioner No.1 and actual owner of the premises). Thus, the
person who was found to be in occupation of the premises,
namely Sheetal Chaudhary, and the owners of the premises,
namely Petitioners Nos.1 and 2, were issued notices, and as
such, the mandate of Section 18(1) appears to have been
properly followed. The absence of issuance of notice to Kailash
Shirsath, the alleged leave and licence holder, would not, by
itself, vitiate the impugned order, which is otherwise just and
proper. The contention is therefore misconceived and stands
rejected.
17. Now coming to the arguments based upon the
judgment passed by this Court in the case of Rajaram @
Rajendra Wamanrao Ghogare (supra), a perusal of the said
judgment shows that an identical order passed under Section
18(1) of the PITA Act dated 23.10.2024, directing eviction and
closure of the Petitioner Rajaram Ghogare’s Hotel Sai Prasad for
a period of one year, was under challenge. The Petitioner therein
Page 12 of 18
990.Cri.WP-1405-2025.odt
relied upon the judgment of the Single Bench at the Principal
Seat of the Bombay High Court in Maqsood Mohammed Mustak v.
State of Maharashtra, reported in 2022 ALL MR (Cri) 3743, to
submit that the premises could have been closed only if there
was a conviction of the owner of the premises under Section 3 or
Section 7 of the PITA Act. Relying upon the observations of the
Single Bench of the Principal Seat, this Court quashed and set
aside the order passed under Section 18(1) dated 23.10.2024,
on the ground that Petitioner Rajaram was not convicted of any
offence under Sections 3 or 7 of the PITA Act.
The perusal of the judgment of the Single Bench of
18.
the Principal Seat of the Bombay High Court in the case of
Maqsood Mohammed Mustak (supra) does not indicate that an
order under Section 18(1) of the PITA Act could not have been
passed unless there was a conviction of the owner, occupier, or
lessor under Section 3 or Section 7 of the PITA Act. On the
contrary, the judgment in Maqsood Mohammed Mustak (supra)
differentiates and holds that Section 18(1) and Section 18(2) of
the PITA Act operate in different spheres and address distinct
situations. The relevant paragraphs in Maqsood Mohammed
Mustak (supra) are as under :
15. From the phraseology of Section 18 extracted above, it becomes
abundantly clear that sub-section (1) and sub-section (2) of Section 18, operate in
different spheres and address distinct situation. Sub-section (1) empowers a
Magistrate to pass an order of attachment, direct eviction of the occupier and also
make the owner, lessor or landlord to obtain prior approval before letting out the
premises, where he is satisfied that the premises was being run or used as a
brothel or used by prostitutes for carrying on their trade, only after giving an
opportunity to show cause. Sub-section (1) of Section 18, thus, contemplates an
opportunity of hearing in the nature of show cause notice, based on the
Page 13 of 18
990.Cri.WP-1405-2025.odt
information received by the magistrate that the premises was being put to such
improper use.
16. Sub-section (2) of Section 18, on the other hand, empowers the court
convicting a person of any offence punishable under Section 3 or Section 7 to
pass an order contemplated by subsection (1). Under sub-section (2) of Section 18,
the requirement of notice, as envisaged by sub-section (1) is, however, done away
with. The reason is not far to seek. The order under sub-section (2) of Section
18, can be passed by a court only against the person who is convicted for the
offence punishable under Section 3 or 7 of the PITA, namely, keeping a brothel
or allowing the premises to be used as a brothel, and carrying on prostitution in
or in the vicinity of public places, respectively. Evidently, a person who is found
guilty of running a brothel need not be again provided an opportunity of hearing,
as envisaged by sub-section (1) of Section 18 of the Act. However, where an
order of closure of the premises operates to the prejudice of the occupier, who is
not prosecuted for the offence punishable under Section 3 or Section 7 of the
PITA, different considerations come into play. In such a situation, the requirement
of opportunity of hearing, postulated by sub-section (1) of Section 18, cannot be
dispensed with.
19. Thus, a perusal of the above observations of this
Court and also the provisions of Section 18 makes it amply clear
that the powers under Section 18(1) are to be exercised for
temporary closure after giving an opportunity of hearing in the
nature of a show cause notice, relying upon information that the
premises were being used as a brothel. Sub-section (2), on the
other hand, contemplates action under Section 18(1) without any
notice to such person to show cause as required in sub-section
(1). The language of the above two clauses of Section 18 is plain
and unambiguous and does not require any further interpretation
or construction, much less a construction which would commit
violence to the letter and spirit of the provisions. The plain and
unambiguous meaning of the aforesaid clauses of Section 18
itself suggests that, for taking action under Section 18(1), the
conviction of the owner, lessor, or occupier under Sections 3 or 7
is not mandatory.
Page 14 of 18
990.Cri.WP-1405-2025.odt
The judgment of Rajaram @ Rajendra Wamanrao
20.
Ghogare (supra) refers to paragraph no. 16 of the judgment of
Maqsood Mohammed Mustak (supra) wherein it is observed that
“the order under sub-section (2) of Section 18 can be passed by
a Court only against the person who is convicted for the offence
punishable under Section 3 or 7 of the PITA Act, namely, keeping
a brothel or allowing the premises to be used as a brothel and
carrying on prostitution in or in the vicinity of public places,
respectively.” However it appears in Rajaram Ghogare’s case
(cited supra), that observations pertaining to exercise of powers
under Section 18(2) for closure of premises by convicting Court
as discussed in the judgment of Maqsood Mohammed Mustak
(supra) are inadvertently applied to quash and set aside the
order passed under Section 18(1) of the PITA Act.
21. The mandatory condition of a conviction of the owner,
lessor, or occupier is required only to pass an order of closure in
exercise of powers under sub-section (2) of Section 18 of the
PITA Act by the convicting Court, whereas no such conviction is
required for closure/eviction of the premises if the same is
ordered in exercise of powers under Section 18(1) by the
Magistrate, even when charges of running a brothel are still
pending before the trial Court. Section 2(c) of the PITA Act
defines ‘Magistrate’ to mean : “A Magistrate specified in the
second column of the Schedule as being competent to exercise
the powers conferred by the section in which the expression
occurs and which is specified in the first column of the Schedule.”
The Schedule prescribes Magistrate for Section 18 as the District
Page 15 of 18
990.Cri.WP-1405-2025.odt
Magistrate or Sub- Divisional Magistrate.
. Thus it could be seen that the powers under Section
18 (1) are to be exercised by the District Magistrate or Sub-
Divisional Magistrate, whereas the powers under Section 18(2)
are to be exercised by the convicting Court. The judgment in
Maqsood Mohammed Mustak (supra) clearly states that Section
18(1) and Section 18(2) operate in different spheres, and thus
the sine qua non to exercise powers under clause (2) of Section
18 cannot be read and applied to invalidate an order passed
under clause (1) of Section 18 of the PITA Act. In my view,
therefore, the impugned order is just and proper and satisfies
the requirements laid down under Section 18(1).
22. The Hon’ble Supreme Court in the case of Chintan J.
Vaswani and Ors. Vs. State of West Bengal and Ors. reported in
AIR 1975 SSC 2473, was pleased to observe as under :
7. Section 18(1) proprio vigore applies only to brothels within the vicious
distance of 200 yards of specified types of public institutions. No criminal
prosecution or conviction is necessary for taking action under Section 18(1).
Strictly speaking, this is not a punitive provision but a preventive one. This power
vested in the Magistrate is calculated to ensure moral hygiene in the locality
which is particularly sensitive. If one may say so, it is a moral scavenging
operation, or a fumigation process whereby the dangerous visitations may be
totally inhibited by a legally enforced closure
12. This Court in A. C. Aggarwal v. Ram Koli MANU/SC/0079/1967 :
1968CriLJ82 held 2 that Section 18(1) deals with one class and Section 18(2)
relates to another class. Section 18(1) is a summary procedure for closing down
obnoxious places of prostitution, without going through the detailed process of a
criminal prosecution. It is a quick-acting defensive mechanism, calculated to
extinguish the brothel and promote immediate moral sanitation, having regard to
the social susceptibility of places like shrines, schools, hostels, hospitals and the
like. Section 18(2) on the other hand, operates only where persons have been
convicted of offences under Section 3 or Section 7. Thus the place is found to be
put to prostitutional use, in a criminal trial. It stands to reason that if the purpose
of extirpating the commercial vice from that venue were to be successful, the
occupier must be expelled therefrom.
Page 16 of 18
990.Cri.WP-1405-2025.odt
Thus, taking into consideration the aforesaid
23.
observations of the Hon’ble Supreme Court, it is clear that the
powers under Section 18(1) can be exercised by the Magistrate
for closure of premises even without there being any conviction
of the owner under Section 3 or Section 7 of the PITA Act. The
powers under Section 18(1) are to be exercised by the
Magistrate, whereas the powers under Section 18(2) are to be
exercised by the convicting Court. These two powers are to be
exercised distinctly by “two different authorities” in two different
contingencies. The Full Bench of the Gujarat High Court in the
case of State of Gujarat vs. Gordhandas Keshavji Gandhi And
Ors. reported in AIR 1962 Guj 128, was pleased to hold that “a
decision of a High Court Judge sitting singly is not legally binding
on another Judge of the same High Court sitting singly.”
. The rule that a court should follow the decision of
another Court of co-ordinate jurisdiction is subject however to
several exceptions which have been dealt with in Salmond's
jurisprudence, 11th Edn. at page 199 to 217.
(1) A decision ceases to be binding if a statute or statutory rule
inconsistent with it is subsequently enacted, or if it is reversed or
overruled by a higher court.
(2) A precedent is not binding if it was rendered in ignorance of
a statute or a rule having the force of statute.
(3) A precedent loses its binding force if court that decided it
overlooked an inconsistent decision of higher court.
24. The observations of the Hon’ble Supreme Court in this
regard in the case of Chintan J. Vaswani and Ors. (supra), clearly
Page 17 of 18
990.Cri.WP-1405-2025.odt
lay down that the powers under Section 18(1), to be exercised
by the Magistrate, are independent of any conviction under
Section 3 or Section 7 of the PITA Act. Since the observation of
this Court in the case of Rajaram Ghogare (supra) appears to be
inadvertent and in ignorance of the above judgment of the
Hon’ble Supreme Court, hence I am not inclined to follow the
same.
25. Thus, taking an overall view of the matter, I am not
inclined to entertain the present Writ Petition. The Petitioners
have thus failed to make out any case for interference by this
Court under its extraordinary jurisdiction under Article 226 or its
supervisory jurisdiction under Article 227 of the Constitution of
India. The petition is, therefore, devoid of substance and merits
and stands rejected.
[ MEHROZ K. PATHAN ]
JUDGE
Najeeb.
Page 18 of 18