Delhi District Court
State vs . : Mukesh Mehto on 24 August, 2023
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTHWEST)
DWARKA COURTS: DELHI
State Vs. : Mukesh Mehto
FIR No : 14/2022
U/s : 4(a) of The Delhi Prevention of Touting and
Malpractices against Tourist Act
P.S. : Domestic Airport
1. CNR No. of the Case : DLSW020446562022
2. Date of commission of offence : 06.04.2022
3. Date of institution of the case : 25.07.2022
4. Name of the complainant : HC Ram Prasad
5. Name of accused, parentage & : Mukesh Mehto
address S/o Kamal Dev Mehto,
R/o C514, PocketC,
Sector15, J. J. Colony,
Bharat Vihar, Kakrola.
Delhi.
6. Offence complained of : Section 4(a) of the
Delhi Prevention of
Touting and
Malpractices against
Tourist Act, 2010
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 24.08.2023
Argued by: Mr. Pankaj Gulia, Ld. APP for the State.
Mr. Vinod Wadhwa, Ld. Counsel for accused.
FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 1 of 11 Digitally signed
Abhinav by Abhinav
Ahlawat
Ahlawat Date: 2023.08.24
12:12:28 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE
DECISION:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 06.04.2022 at about 12:10 AM, at Car Pick Up Zone, Terminal1, Domestic Airport, New Delhi, accused was found indulging in touting by enticing the tourists coming out of Arrival Hall for accommodation and sightseeing on the pretext of providing them with hotels and services at discounted rates in Delhi in his taxi bearing registration no.DL1RT4606 and thereby committed the offence punishable under Section 4(a) of the Delhi Prevention of Touting and Malpractices against Tourist Act, for which FIR no.14/22 was registered at the police station Domestic Airport, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused person was filed. The Ld. Predecessor of this court took the cognizance against the accused person and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused person, notice under Section 4(a) of the Delhi Prevention of Touting and Malpractices against Tourist Act FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 2 of 11 Abhinav by Digitally signed Abhinav Ahlawat Ahlawat Date: 2023.08.24 12:12:41 +0530 was served upon the accused on 15.09.2022. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: ORAL EVIDENCE PW-1 ASI Ram Prasad PW-2 Inspector Umed Singh PW-3 ASI Mahender PW-4 Inspector Satish Lohia DOCUMENTARY EVIDENCE Ex.PW1/A Statement of complainant Ex.PW1/B Arrest memo Ex.PW1/C Personal search memo Ex.PW1/D Seizure memo Ex.P1 Photographs of the vehicle Ex.PW3/A Entry in register no.19
4. PW1 ASI Ram Prasad (complainant) deposed that on 05.04.2022, he was on duty at Arrival Hall from 07:00 pm till 08:00 am on the next day. At about 12:10 am, he saw one person who was enticing the passengers coming out of the Arrival Hall to get them hotel stay and taxi services at cheaper rates in his taxi bearing registration no.DL1RT4606. Thereafter, he asked the accused to desist from such activities but he did not adhere. He called HC Satpal who was also on duty at the spot and apprehended the said person with the help of HC Satpal. That person disclosed his name to be Mukesh Mehto. He took the accused and his taxi to the police station and handed him over to the IO. The IO recorded his statement Ex.PW1/A. Thereafter, the FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 3 of 11 Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.08.24 12:12:50 +0530 present FIR was lodged upon his statement. After the registration of the FIR, the accused was interrogated by the IO and arrested vide arrest memo Ex.PW1/B. The accused was later on released on police bail. The accused was personally searched vide personal search memo Ex.PW1/C. The IO also seized the aforesaid taxi vide seizure memo Ex.PW1/D. The witness correctly identified the accused present in the court and the vehicle through photographs. In his crossexamination, he stated that he asked some public persons to join the investigation but they refused and left the spot without disclosing their name or addresses. No notice was served upon those public persons. All other formal suggestions were refuted by the witness.
5. PW2 Inspector Umed Singh deposed regarding preparation of chargesheet and filing the same before the court.
6. PW3 ASI Mahender MHC (M), brought the summoned record i.e., register no.19 and as per the entry no.220 of the said register Ex.PW3/A (OSR), the IO had deposited the seized taxi in the Malkhana.
7. PW4 Inspector Satish Lohia deposed that on 06.04.2022, HC Ram Prasad came to police station along with accused Mukesh Mehto and the offending vehicle bearing registration no.DL 1RT6406 and gave a complaint. He prepared a tehrir Ex.PW4/A and handed over the same to DO for registration of FIR. After registration of FIR, the DO handed over the original tehrir and copy of FIR to him. Thereafter, he interrogated the accused, arrested him, conducted his personal search and seized the FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 4 of 11 Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.08.24 12:12:59 +0530 offending vehicle. Then, the accused was released on police bail. Thereafter, he was transferred from PS Domestic Airport and the case file handed over to MHC ( R). In his crossexamination, he stated that the offending vehicle was black and yellow taxi and that he never visited the spot.
8. Thereafter, prosecution evidence was closed.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
9. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded on 07.06.2023 without oath under section 281 r/w 313 Cr.PC, wherein he has stated that he was innocent and has falsely been implicated in the present case. He further stated that he was plying the taxi near roundabout and the police arrested him. He further stated that he did not want to lead defence evidence.
FINAL ARGUMENTS
10. I have heard the Ld. APP for the State and Ld. Counsel for the accused. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 5 of 11 Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.08.24 12:13:15 +0530 commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
12. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
13. The provision of Section 4 (a) of the Act prescribes penalties, which is as under: Any person who - (a) touts or commits malpractice shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
According to Section 2 (f) of the Act, defines touting as, Touting includes enticing, misguiding or coercing for shopping, accommodation, transportation, sight-seeing or pestering for any particular premises, including the precincts thereof, any person, establishment, dealer or manufacturer for personal consideration;
Further explanation of the definition provides that, Whoever loiters around airports , railway stations, bus stands , markets or any other places frequented by tourists with the intention of offering any unsolicited service to the tourist or pestering or coercing him to -use any such service and exhibits such conduct so as to show such intention (like following , arguing, FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 6 of 11 Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.08.24 12:13:27 +0530 communicating or otherwise drawing attention of tourists through words or gestures or placards or pamphlets thereby causing obstruction or annoyance to tourists or general public) and otherwise has no reasonable explanation for frequenting the said -place will be deemed to have committed the act of touting.
14. 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 Tahir Vs. State (Delhi) (1996) 3 SCC 338, wherein it has been observed as hereinunder:
"6. Mr. D. D. Thakur, the learned senior counsel appearing for the appellant, submitted that PW4 to PW7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion no. infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no. rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 7 of 11 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.24 12:13:37 +0530 APPRECIATION OF EVIDENCE
15. In the present case, there are two material witnesses of the incident i.e., PW1 ASI Ram Prasad and HC Satpal. However, as per the prosecution story HC Satpal was neither mentioned as prosecution witness nor his testimony came on the record. Thereby the only testimony for proving the touting activities of the accused is PW1 ASI Ram Prasad. However, in cross examination of PW1, no inconsistencies are reflected but PW1 stated that he neither called at police station regarding the apprehension of the accused nor he served any notice upon the public persons for joining them in investigation. Further, PW1 stated that IO had prepared the site plan of the spot of incident but the same was not prepared in his presence.
16. Further, IO PW4 Inspector Lohia stated that he prepared the tehrir and handed over the same to Duty Officer for registration of FIR and after the registration of FIR, he interrogated the accused and arrested him and seized the offending vehicle. The relevant fact which has emerged in crossexamination of PW4 is that he mentioned the colour of the offending vehicle as black and yellow taxi and that he never visited the spot of incident. It is pertinent to mention here that the photographs of the offending vehicle clearly depict the offending vehicle as a taxi of white colour and not as black and yellow.
17. Although the accused has not led any defence evidence, however, in his statement under Section 313 Cr. P. C. he stated that he was plying the taxi near the roundabout and the police arrested him FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 8 of 11 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.24 12:13:50 +0530 from there. The Court is conscious of the fact that the statement of accused under Section 313 Cr. P. C. is not a substantive piece of evidence but merely an opportunity to the accused to explain the incriminating circumstances against him. Reliance can be placed upon the observation of the Hon'ble Supreme Court of India in Sumeti Vij Vs. Paramount Tech Feb Industries (CRA 292/21) LL 2021 SC 149, "The statement of the accused recorded under 313 of the Code is not substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstance appearing in the prosecution case of the accused".
18. Further, it is pertinent to highlight there that PW4 Inspector Satish Lohia who is the IO in the present case did not prepare any site plan so there is no material evidence on record to establish the place of incident and as such the presence of accused person in and about the premises of Domestic Airport is not proved by any other evidence as well. The explanation of the definition of touting clearly states that whoever loiters around the Airport with the intention of offering any unsolicited service to the tourist. Therefore, the presence of the accused at the Airport is sine qua non for establishing the offence of Section 4(a) of the Act. Non preparation of the site plan clearly jeopardises the case of the prosecution. Further, a place like Domestic Airport is under the watch of CCTV surveillance and no reason is forthcoming as to why such crucial piece of evidence was never procured by the IO during the investigation. Therefore, the presence of accused at the spot remains doubtful.
FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 9 of 11 Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.08.24 12:14:01 +0530
19. In this manner, not only is there a major lapse on the part of IO to conduct proper and fair investigation regarding the incident, but the testimonies of the witnesses are tainted with substantial inconsistencies. In fact, the testimonies of both the complainant and IO are contradictory to each other on certain material points as discussed herein before, thereby rendering their presence at the spot and their witnessing the alleged incident highly doubtful. No independent public witness has been joined in the investigation which further makes the prosecution case dubious. Further, there is no DD entry regarding the patrolling duty of PW1 and the of the other police official namely HC Satpal who was called by PW1 for apprehending the accused was never examined by the prosecution.
CONCLUSION
20. In the instant case, it has been held that the testimonies of police witnesses do not inspire confidence and the presence of the accused is not established. The investigation appears to be faulty and incomplete. The aforesaid loopholes highlighted by the Court are sufficient to discredit the prosecution case.
21. The upshot of the foregoing discussion is that the prosecution has failed to establish the charge of Section 4 (a), The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010 against the accused beyond reasonable doubts entitling the accused to benefit of doubt. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the accused Mukesh Mehto S/o Kamal Dev Mehto, FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 10 of 11 Abhinav by Digitally signed Abhinav Ahlawat Ahlawat Date: 2023.08.24 12:14:11 +0530 is hereby acquitted of the offence punishable under Section 4
(a), The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
Announced in the open court on 24.08.2023 in the presence Abhinav by Digitally signed Abhinav Ahlawat of the accused. Ahlawat Date: 2023.08.24 12:14:20 +0530 (Abhinav Ahlawat) Metropolitan Magistrate09, Dwarka, Delhi/24.08.2023 Note: This judgment contains 11 pages and each page has been signed by me.
Abhinav Digitally signed by
Abhinav Ahlawat
Ahlawat Date: 2023.08.24
12:14:29 +0530
(Abhinav Ahlawat)
Metropolitan Magistrate09,
Dwarka, Delhi/24.08.2023
FIR No. 14/22, PS Domestic Airport State vs. Mukesh Mehto Page 11 of 11