Delhi District Court
State ...........Prosecution vs . on 1 February, 2022
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE-09, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 104/19
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 15642/2019
CNR no. DLSW020465182019
IN THE MATTER OF:-
State ...........Prosecution
Vs.
Ass Mohammad
S/o Sh. Bashir Khan
R/o P-74, SCM Nagar,
NIT Faridabad, Haryana. .............Accused
1. Name of complainant : ASI Ved Prakash
2. Name of accused : Ass Mohammad
3. Offence complained of : Under Section 4(a), The
Delhi Prevention of Touting
and Malpractices against
Tourist Act, 2010.
4. Plea of accused : Not guilty
5. Date of commission of offence : 15.08.2019
6. Date of institution of case : 06.09.2019
7. Date of reserving judgment : 05.01.2022
8. Date of pronouncement : 01.02.2022
9. Final judgment : Convicted.
State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.1/8
Digitally signed by BHARTI
BHARTI GARG GARG
Date: 2022.02.01 10:33:49
+05'30'
JUDGMENT:-
1. The present case pertains to prosecution of accused in respect of offence punishable U/s 4 (a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010 (hereinafter referred to as 'Act').
2. In nutshell, the case of the prosecution is that on 15.08.2019 the complainant ASI Ved Prakash was on patrolling duty on motorcycle and at about 02:25 pm, when he reached at Car Pick Up Zone, Domestic Airport, he witnessed that one person had parked his car bearing no.HR38Y2881 and was inducing the passengers coming out of the Arrival Hall on the pretext of providing them with cheap taxi services and hotels at discounted rates in Delhi. He was instructed not to indulge in touting as the passengers were getting annoyed but he did not desist from his conduct. Thereafter, the complainant apprehended the driver and enquired about his name and address, who disclosed his name as Ass Mohammad S/o Sh. Bashir Khan. Thereafter, he took him along with his car to the police station and the FIR was registered on the same date. Investigation was conducted by the IO wherein statements of witnesses under Section 161 Cr. P. C. were recorded, the accused was arrested and later on, was released on bail. The taxi of the accused was also seized which was subsequently released to the rightful owner pursuant to the order of Court. Upon the culmination of investigation, chargesheet was filed against the accused.
3. Cognizance of the offence under Section 4 (a) of the Act was taken against the accused and the copy of chargesheet was supplied to him in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
4. On the basis of material filed along with the chargesheet, notice of accusation u/S 4 (a) of the Act was served upon the accused to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.2/8 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.02.01 10:34:04 +05'30' FIR registered on 15.08.2019 under Section 294 of Cr. P. C. and consequently, PW W/ASI Ratan Prabha was dropped from the list of witnesses and the FIR was marked as Ex.A1 vide court order dated 17.01.2020.
5. In order to prove its case, the prosecution examined two witnesses. PW2 ASI Ved Prakash, the complainant, stated that on 15.08.2019 he was on patrolling duty on motorcycle and at about 02:25 pm, when he reached at Car Pick Up Zone, Domestic Airport, he witnessed that one person had parked his car bearing no.HR38Y2881 and was inducing the passengers coming out of the Arrival Hall on the pretext of providing them with cheap taxi services and hotels at discounted rates in Delhi. He was instructed not to indulge in touting as the passengers were getting annoyed but he did not desist from his conduct. Thereafter, he apprehended the driver and enquired about his name and address, who disclosed his name as Ass Mohammad. Thereafter, he took him along with his car to the police station and got his statement recorded which is Ex. PW1/A. Thereafter, the FIR was registered which is Ex.A1. The site plan was prepared by the IO at his instance which is Ex.PW1/D. Then, the IO arrested the accused vide arrest memo Ex.PW1/E and seized his car vide seizure memo Ex.PW1/F. The accused was released on police bail. He correctly identified the photographs of car Ex. PW1/H (colly). He also correctly identified the accused present in court. He also brought the summoned record i.e. register no.19 and as per the entry no.340 of the said register Ex.PW2/A (OSR), the IO had deposited the seized car in the Malkhana. In the cross-examination, the witness stated that at the time of incident the accused was standing at a distance of 10-15 meters from him and he did not enquire from the passengers with whom the accused was committing touting. He stated that there were no CCTV cameras installed at spot of incident.
6. PW1 SI Ishwar Singh, the IO, testified as to the investigation State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.3/8 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 10:34:15 +05'30' conducted by him. After recording the statement of complainant, he prepared the tehrir Ex.PW1/B and got the FIR registered. Upon the receipt of rukka and copy of FIR, he proceeded to arrest the accused and seize his car. He released the car in compliance with court order dated 19.08.2019 Mark A after preparing panchnama Ex. PW1/G. In his cross-examination, he stated that he received the information at around 02:00 to 02:35 pm. He left the police station at about 03:30 pm for the site to prepare the site plan. He did not attach any CCTV footage as there was no CCTV camera installed at the place of incident. There was no public witness of this incident. All other formal suggestions were refuted by him.
7. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against him in the evidence were put to the accused. The accused denied all the allegations and stated that he is innocent and has been falsely implicated in the present case. He stated that he had gone to the spot to meet the Supervisor of Indigo Staff and parked his car a little farther from Pick Up Zone and left. He stated that since it was 15th August, security was more because of which the police officials took his car and lodged this false case against him. The accused further stated that he did not wish to lead any defence evidence and hence, the matter was taken up for final arguments.
8. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts as the testimony of all witnesses has remained unshaken and corroborated. Per contra, the Ld. LAC appearing on behalf of accused has argued for his acquittal on the ground that he has been falsely implicated as there is no public witness to testify as to the veracity of case and further no CCTV footage has been produced to State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.4/8 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.02.01 10:34:25 +05'30' corroborate the testimony of police witnesses.
9. Arguments heard. Perused the record.
10. The provision of Section 4 (a) of the Act prescribes punishment for touting or commit any malpractice. According to Section 2 (f) of the Act, touting includes enticing, misguiding or coercing the tourists for accommodation, sight-seeing etc. If anyone loiters around the airports, as in the present case, with the intention of offering unsolicited service to the tourists and exhibits such conduct so as to manifest such intention will be deemed to have committed the act of touting if he has otherwise no reasonable explanation for visiting the said place.
11. It is well settled that the prosecution case cannot be disbelieved in the entirety merely because all the witnesses are official witnesses and no independent witness could be produced by the prosecution. Each case has to be determined on the basis of its peculiar facts and circumstances. Reliance in that regard is laid upon the judgment of Hon'ble Supreme Court of India in Kulwinder Singh and another Vs. State of Punjab (2015) 6 SCC 674, wherein it has been observed as hereinunder:
"23. The last plank of submission of the learned counsel for the appellants is that no independent witness has been examined to substantiate the allegation of the prosecution. It is worth to note that Labh Singh and Harvinder Singh have not been examined by the prosecution. The explanation has been offered that the investigating agency was of the view that they had been won over. The said explanation has been totally substantiated inasmuch as they have been examined as defence witnesses. In such a situation, no adverse inference can be drawn for non-examination of the said witnesses. That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.5/8 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.02.01 10:34:40 +05'30' rest the conviction on the basis of their evidence. In this regard, it is profitable to reproduce a passage from State (Govt. of NCT of Delhi) V. Sunil 2001 1 SCC 652 which reads as follows:
"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-Independence years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
24. In the case at hand, the evidence is unimpeachable and beyond reproach and the witnesses cited by the prosecution can be believed and their evidence has been correctly relied upon by the trial court and the High Court to record a conviction. It is well settled in law that what is necessary for proving the prosecution case is not the quantity but the quality of the evidence."
12. In the case at hand, both PW1 SI Ishwar Singh and PW2 ASI Ved Prakash have corroborated each other in material facts. Their testimonies cannot State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.6/8 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 10:34:51 +05'30' be doubted solely on the ground that no independent witness came forward to take part in the proceedings. The place of incident i.e. the Domestic Airport is such that the passengers or the tourists may be reasonably assumed to exhibit such kind of conduct as mostly they are in a hurry to catch their flight or head back towards their respective places after journey. There is also no bar on lodging the complaint by a police official as such. Moreover, the Court may draw the presumption under Section 114 of Indian Evidence Act, 1872 that the acts done by the police officials in discharge of their duties have been properly done in accordance with law, unless the said presumption is rebutted by the contesting party.
14. However, in the present case, there isn't sufficient material to rebut the aforesaid presumption. Although the production of CCTV footage would have operated as corroborative evidence, nevertheless, the failure to do so by the prosecution is not fatal as the ocular evidence has remained entrenched. The witnesses have remained unshaken on material facts and nothing substantial could be elicited in the cross-examination of PW1 SI Ishwar Singh and PW2 ASI Ved Prakash. The accused has admitted that he was present at the spot and there is no explanation tendered by him as to why he would be falsely implicated. This fact goes on to only reinforce the case of prosecution.
15. Therefore, the court finds the evidence of prosecution witnesses completely reliable. Consequently, it is reflected from the prosecution evidence that the accused was found to be indulged in the act of touting the tourists coming out of Arrival Hall on 15.08.2019, as he was enticing them to provide cheap hotels and taxi services. The offending act of accused is clearly covered under Section 4 (a) of the Act.
16. In view of the forgoing discussion, it is concluded that the prosecution has succeeded in proving its case beyond reasonable doubts against the accused.
State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.7/8 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 10:35:04 +05'30' Resultantly, the accused Ass Mohammad S/o Sh. Bashir Khan R/o P-74, SGM Nagar, NIT Faridabad, Haryana is hereby convicted for the offence punishable under Section 4(a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
17. Let the convict be heard separately on the quantum of sentence.
18. Copy of this judgment be given free of cost to the convict.
Pronounced in open court in the presence of accused on 01.02.2022. Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 10:35:16 +05'30' (Bharti Garg) MM-09/South West District Dwarka Court/New Delhi/01.02.2022 It is certified that this judgment contains eight pages and each page has been signed by the undersigned. Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 10:35:25 +05'30' (Bharti Garg) MM-09/South West District Dwarka Court/New Delhi/01.02.2022 State Vs. Ass Mohammad CNR no. DLSW020465182019 Page no.8/8