Delhi District Court
State vs . Prashant Kumar on 9 September, 2015
State Vs. Prashant Kumar
FIR No 77/14
PS Domestic Airport
IN THE COURT OF SH. PANKAJ SHARMA,
METROPOLITAN MAGISTRATE01, DWARKA COURTS, DELHI
Brief reasons for the Judgment in the case with following particulars:
FIR No. 77/14
PS Domestic Airport
U/S : 4 DPT & M Act
State V/s Prashant Kumar
C/No. 64/02
U.ID No. 02405R0236862014
Date of Institution: 14.10.2014
Name of the Complainant SI Karambir Singh
PS Domestic Airport.
Name and address of accused Prashant Kumar
S/o Sh. Praveen Kumar
R/o RZ2/2004, Vijay Enclave,
New Delhi.
Charge framed against accused U/S 4 DPTM Act
Plea of accused Pleaded not guilty
Final Order Convicted
Date for announcing the orders 09.09.2015
JUDGMENT: The brief facts and pre trial procedure
1. Charge U/S 4 DPTM Act was framed against accused Manish on 10.02.2015 "that on 17.09.2014, at about 7PM at terminal 1B near C/No. 64/02 Page No. 1 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport general Car parking, Domestic Airport, New Delhi, within the jurisdiction of PS Domestic Airport, accused was alluring the passengers coming from the arrival hall on the pretext of providing cheap taxi service and hotel on discounted rates due to which passengers were getting annoyed and thereby the accused committed an offence punishable under Section 4 Delhi Prevention of Touting and Malpractices against Tourists Ordinance Act, 2010 to which he pleaded not guilty and claimed trial.
Trial
2. To prove the charges, prosecution cited 5 witnesses in the list of witnesses and all were examined. PE stood closed on 26.08.2015. Thereafter, statement of accused U/S 313 CrPC was recorded in which accused pleaded his innocence. No defence evidence was led by the accused.
3. PW1 Constable Sunil Kumar deposed that on 17.09.2014, he was posted at Domestic Airport as Constable. On that day he along with SI Karmvir were on patrolling and checking duty in the area of Domestic Airport and about 7 p.m. When we reached at terminal 1B near general parking they noticed one TSR driver with TSR bearing no. DL 1RM 0132 was trying to lure the passengers for cheap hotel and concession on his TSR. Due to his act the passengers were getting disturbed and annoyed. They requested him not to do so but he did not pay any heed to our request and continued in his conduct.
C/No. 64/02 Page No. 2 of 12U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport Thereafter, we apprehended him and on inquiry his name was revealed as Prashant Kumar. They requested some passengers and drivers present there to join in the proceedings but none agreed. Thereafter, SI Karmveer prepared Terir and sent to the PS with Tehrir for registration of FIR. He went to PS and got present case registered through DO who handed over to me original tehrir and copy of FIR after registration of the case and he returned back to the spot and handed over original Tehrir and copy of FIR to SI Karmveer. SI Karmveer arrested Prashant Kumar vide arrest memo Ex. PW1/A and conducted his personal search vide personal search memo Ex. PW1/B. His TSR was seized vide seizure memo Ex. PW1/C. He was released on bail and TSR deposited in Malkhana. His statement was recorded by IO. He correctly identify the photographs Ex. P1 & P2 of case property.
In cross examination he stated that his departure was made vide DD no. 31. He stated that no notice u/s 160 Cr.PC was served by the IO to anyone in his presence. He stated that he was not instructed by the IO to serve notice on any person. He affirmed that the place/spot is visited by public persons. He stated that accused was present at the spot when they reached there. He affirmed that there are CC TV cameras installed on the spot. He stated that no CC TV footage was taken by the IO from the CC TV cameras installed on the spot in his presence. He stated that they remained at spot till 9.00 P.M. He stated that he went to the PS with Tehrir at 7.30 P.M and returned back to the spot after registration of the FIR at 8 p.m. He stated that no documents were prepared by the IO before preparing the Tehrir. He affirmed that C/No. 64/02 Page No. 3 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport that names and address of passengers and the driver who refused to join in the proceedings were not noted down by IO. He denied the suggestion that accused had come at the spot to drop the passengers and he has been falsely implicated in the present case. He denied the suggestion that he was not alluring the passengers.
4. PW2 HC Jawahar Lal brought on record the register no. 19 as summoned and stated that on 17.09.2014, SI Karmveer had deposited one TSR bearing no. DL 1R 0132 in the Malakhana vide entry 419 and same was released on 19.09.2014 by the order of the court on superdari. Copy of the entry is Ex. PW2/A. In cross examination, he stated that he made the entry 419. He stated that he cannot tell the time. He denied the suggestion that the DD entry is anti timed.
5. PW3 HC Sukhbir Singh deposed that he was the Duty Officer at the relevant date and time who proved the FIR no. 77/14 as Ex. PW3/A and his endorsement Ex. PW3/B on the rukka.
6. PW4 SI Karambir Singh deposed that on 17.09.2014, he was posted at PS Domestic Airport as SI. On that day, he was on emergency duty from 8.00AM to 8.00PM. On that day, at around 7.00PM, he along with Ct. Sunil Kumar were on patrolling and checking duty in the arrival hall area of Domestic Airport and when they reached at terminal 1B, near General Parking, we noticed one TSR driver having TSR C/No. 64/02 Page No. 4 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport bearing no. DL 1RM 0132 was trying to allure the passengers coming out of the arrival hall on the pretext of providing them cheap hotel and concession on his TSR. The passengers were getting annoyed due to his conduct. They also requested him not do so but he did not pay any heed to your request and continued in his conduct. He informed the SHO regarding the conduct of that person and directed him to take action against that person. Thereafter,he with the help of Ct. Sunil Kumar apprehended that person, whose name on inquiry was revealed as Prashant Kumar. He requested some passengers to join in the proceedings but none agreed as they were in hurry. He prepared rukka Ex.PW4/A and sent Ct. Sunil Kumar to the PS for registration of FIR. After registration of FIR, Ct. Sunil Kumar returned back to the spot and handed over original rukka and computerised copy of FIR. He arrested the accused Prashant Kumar vide arrest memo Ex.PW1/A and conducted his personal search vide memo Ex.PW1/B. TSR was seized along with the photocopies of the documents of the vehicle through seizure memo Ex.PW1/C. He prepared site plan Ex.PW4/B. Accused was released on bail. TSR was deposited in the malkhana. He recorded the statement of Ct. Sunil Kumar. After the completion of investigation he prepared challan and filed the same in the Court through concerned SHO.
In cross examination, he stated that he had left the PS vide DD No. 31. Same was done by him. He affirmed that DD No. 31 is not the part of judicial file. He denied the suggestion that no such DD entry was made or he was never been on patrolling duty vide DD No. 31 and C/No. 64/02 Page No. 5 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport that is why the same is not placed on judicial record. He affirmed that area of Arrival Hall is under the surveillance of CC TV cameras. He voluntarily stated that parking area is not covered by the CC TV camera. He stated that parking area is at a distance of around 50 feet from the Arrival Hall. He stated that he watched the conduct of accused for 57 minutes. He affirmed that there remain many vehicles present in the parking area. He further affirmed that cabs and drivers also remain present in that area. He further affirmed that whenever notice u/s 160Cr.P.C. is served on any person, the name and address of that person is mentioned in the notice in different of whether he refuses the same or accepts the same. He denied the suggestion that no such notice u/s 160Cr.P.C. is placed on record as the accused was lifted from some other place other than the place of incident. He denied the suggestion that the place of incident is also covered with CC TV footage and the same is not placed on record as no such incident took place. He further denied the suggestion that no such CC TV footage placed on record to show the presence of accused at the place of incident as the accused was not picked up from the place of incident. He further denied the suggestion that accused was not alluring the passengers. He further denied the suggestion that all the document were prepared while sitting at the PS.
7. PW5 Asha Ram deposed that he is the registered owner of TSR/Auto bearing No. DL 1RM 0132. He had released the same on superdari vide superdarinama Ex.PW5/A. C/No. 64/02 Page No. 6 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport In cross examination, he affirmed that he does not know from where his vehicle was confiscated by police. He affirmed that he had found his vehicle stationed in the PS. Statement of accused and defence
8. After closure of prosecution evidence, the statement of accused U/S 313 CrPC were recorded. When all the incriminating evidence was put to the accused separately, distinctly and specifically to afford him an opportunity to explain the circumstances so put to him, but he did not offer a shred of evidence to prove his innocence except by saying that he is innocent and has been falsely implicated. Further accused did not lead any defence evidence in support of his claim of innocence.
Arguments and appreciation of evidence in the light of legal propositions
9. During the course of arguments, Ld. Counsel for accused has submitted that the case of the prosecution should not be believed as IO of the case is complainant himself. Ld. Counsel has further submitted that it is not in accordance with principles of natural justice that a complainant himself investigate the case and files the charge sheet against a person. Ld. Counsel has further submitted that despite airport being a busy place, no public persons have been made witnesses to the proceedings carried out by the IO. It is further argued that despite CC TV installed on all the places in the airport, no footage C/No. 64/02 Page No. 7 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport has been filed by way of evidence showing the accused was alluring or soliciting the passengers. It is also submitted that both the accused did not annoy any passenger.
10. On the other hand Ld. APP for the State submitted that there is enough evidence against the accused as he tried to allure the passenger and also worked in tandem to influence the passenger at the Airport, which caused annoyance to the passenger.
11. I have given my thoughtful consideration to the submissions advanced by both sides. This case was registered against the accused for offence u/s 4 Delhi Prevention of Touting and Malpractices against Tourist Act, 2010. The accused is a TSR driver and was soliciting and alluring the passengers outside the arrival hall and as per the prosecution case accused was alluring the passengers outside arrival hall by saying that they will ferry them in a cheap rate and also trying to keep the baggages of the passenger in their WagonR despite the passenger was not interested going with him. PW4 is the IO of this case supported the prosecution version in entirety. These facts show that the accused was committing the offence of touting by indulging in illegal activity of enticing the passenger.
12. With respect to the contention raised on behalf of accused that IO and the complainant is same person, to this argument, it is observed that when a crime is informed by any person who happens to be a C/No. 64/02 Page No. 8 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport police official of the same jurisdiction, he becomes complainant of the case and same does not preclude him from becoming the IO if the SHO hands over him the investigation of the case and accordingly, the contention put forth on behalf of accused is dismissed.
13. Also, the complainant in these cases are generally policemen as they have the duty to prevent touting at these places. Nowhere the law prevents a policeman to become complainant or competent witness. A policeman is as competent a witness as any other person and where the testimony of policeman is reliable and trustworthy and plausible explanation is given by the police for not making any public person as witness, the testimony can be relied upon.
14. With respect to another contention raised on behalf of accused that despite arrival hall being crowded place, IO has not made any public person as witness, to this argument, it is observed that the testimony of police officials can be relied upon unless it suffers from doubts and failure to join any public person do not go to dismantle the case of prosecution entirely if the plausible explanation given by the police for not doing so, which in this case is given by the IO and accordingly, the argument is dismissed. Also, it is not very uncommon that Public persons are generally reluctant to join as a witness and appear before the court as a witness. In State of U.P. Vs Anil Singh, 1988 Supp SCC 686, it is observed that "it is also not proper to reject the case for want of corroboration by independent witnesses if the case C/No. 64/02 Page No. 9 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport made out is otherwise true and acceptable". Even otherwise if the evidence on record is sufficient to nail the accused, the same does not become tainted by reason of absence of any public person as witness.
15. With respect to further argument raised on behalf of accused that the passenger which was allegedly allured/annoyed by them was not examined on behalf of prosecution, to this argument, it is observed that the testimony of IO reveals that while he was busy in apprehending the accused, the passenger took some other cab and left the spot. It is quite likely that passengers are in hurry to reach their destination once they come out of their journey and they tend to ignore the disturbance created by unscrupulous persons who annoy them by forcing them to take their services and in these circumstances the passengers try to leave the place at the earliest to avoid further inconvenience. Even some time they were on the spot but they prefer not to become witness to legal proceedings as they fear that it may become onerous and expensive venture to them in future.
16. With respect to another contention raised on behalf of accused that CC TV footage of the spot has not been filed by the prosecution showing the presence of accused at the spot and indulging into touting, to this argument, it is observed that the testimony of prosecution witnesses is reliable, firm and unshaken by cross examination and accordingly, the same is relied upon by the Court and absence of CC TV footage is of no use when the testimony of witnesses is reliable and C/No. 64/02 Page No. 10 of 12 U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport further the fact that no defence whatsoever has been led on behalf of accused.
17. It is in common knowledge of everyone that in airport outside arrival hall several unscrupulous TSR and cab driver allure passengers of cheap hotel, low fare and other benefits and in most of the cases they misbehave with the passengers who do not fall prey to their allurements and generally passengers avoid police action against them to avoid their future trouble. It is also noteworthy that absence of adequate police officials outside arrival hall give encouragement to these unlawful activities by these law breakers. Also, these people annoy the passengers in front of their families and friends thereby reducing the joy of their journey and exposing them to all sort of dangers. These illegal activities also show lack of effective policing. In these circumstances, the role of police assumes significance and stern and preventive action is required for stopping these illegal activities going around sophisticated place like Airport where people from all over the world come. Such incident of touting also diminishes the reputation and also brings bad name to our country in the world.
Conclusion
18. In the light of the aforesaid facts and considering the handicaps of the policeman in these cases and the evidence on record, this court is convinced that accused has committed the offence u/s 4 Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
C/No. 64/02 Page No. 11 of 12U.ID No. 02405R0236826014 State Vs. Prashant Kumar FIR No 77/14 PS Domestic Airport Nothing favourable could be brought by the counsel for the accused in defence and prosecution has firmly established its case against the accused beyond the shadows of doubt. In view of the aforesaid, this Court is of the view that accused committed the offence u/s 4 of Delhi Prevention of Touting and Malpractices against Tourist Act, 2010 and both the accused is accordingly convicted for the same.
Copy of the judgment be given to the convict free of cost. Order on sentence will be pronounced after hearing the convict.
Announced in the Open Court (DR. PANKAJ SHARMA) today on this 9th day of September, 2015 MM 01: Dwarka : Delhi C/No. 64/02 Page No. 12 of 12 U.ID No. 02405R0236826014