Delhi District Court
State vs Babu Lal on 26 September, 2023
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Babu Lal
FIR No : 05/2023
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 : DLSW020197582023
2. Date of commission of offence : 04.02.2022
3. Date of institution of the case : 13.04.2023
4. Name of the complainant : SI Rohtash Singh
5. Name of accused, parentage & : Babu Lal
address S/o Kuku,
R/o H. no.J-28BJ,
Series East Mehram
Nagar, Delhi Cantt.,
Delhi.
6. Offence complained of : 4(a) of The Delhi
Prevention of Touting
and Malpractices
against Tourist Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 26.09.2023
Argued by:- Mr. Vishv Jeet Yadav, Ld. APP for the State
Mr. S. B. Sharma, Ld. Counsel for accused.
Digitally signed
by Abhinav
FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 1 of 10 Abhinav Ahlawat
Ahlawat Date:
2023.09.26
15:35:38 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 04.02.2022 at about 05:20 PM, at Arrival T-1, near Prepaid Taxi Booth, Domestic Airport, New Delhi, accused was found indulged in touting by enticing the tourists coming out of Arrival Hall for accommodation and sight-seeing on the pretext of providing them with hotels and services at discounted rates in Delhi 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.05/2023 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 was served upon the accused on 09.05.2023. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Digitally signed FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 2 of 10 Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.09.26 15:35:48 +0530
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 Satyapal PW-2 SI Rohtash DOCUMENTARY EVIDENCE Ex.PW1/A Certificate u/S 65B of Indian Evidence Act Ex.PW2/A Arrest memo Ex.PW2/B Tehrir
4. To prove its case, prosecution examined the following witnesses, the same are as follows.
5. PW1 ASI Satyapal deposed regarding registration of FIR and he registered the FIR bearing DD no.39A through CCTNS Operator via computer and he proved certificate under Section 65B of Indian Evidence Act as Ex.PW1/A.
6. PW2 SI Rohtash deposed that on 04.02.2023, during patrolling at about 05:20 pm, he reached at T-1, Domestic Airport near prepaid Taxi Booth, where one person was standing whose name, he came to know later as Babu Lal. He saw that person 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. When he tried to convince passenger to file complaint against him, they refused as they did not want to get involved in this investigation. He was instructed not to indulge in touting as the passengers were getting annoyed but he did not desist from his conduct. After that, he apprehended him and took him to PS Domestic Airport and gave tehrir Ex.PW2/B to duty officer i.e ASI Satyapal to lodge an FIR against him.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 3 of 10 Ahlawat Date:
2023.09.26 15:35:58 +0530 Thereafter, ASI Satyapal gave him copy of FIR, original tehrir and certificate U/s 65B IEA. After receiving the same, he orally interrogated accused Babul Lal and arrested him vide arrest memo Ex.PW2/A. As the offence was bailable, therefore, he released him on police bail. In his cross-examination, he stated that prepaid taxi booth was run by Delhi Traffic Rule. In Delhi Traffic Police Booth, there were police officials at the time of incident but he did not bring under their knowledge regarding the incident. He stated that there were other taxi drivers but he had not taken any statement of any taxi driver. He stated that Airport Security Staff was also present there but he had not recorded their statement. He stated that the placed of incident is under CCTV surveillance but he had not placed any CCTV footage on record. He stated that he had not placed any proof on record which shows the presence of accused at the place of incident. Thereafter, prosecution evidence was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
7. 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 26.07.2023 without oath under section 281 r/w 313 Cr. PC, wherein he has stated that he is innocent and has falsely been implicated in the present case. He further stated that he had parked his vehicle Infront of the metro station of Domestic airport. He further stated that he does not want to lead defence evidence.
FINAL ARGUMENTS Digitally signed by Abhinav Abhinav Ahlawat FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 4 of 10 Ahlawat Date:
2023.09.26 15:36:06 +0530
8. 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.
9. 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 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.
10. 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 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, Digitally signed by Abhinav Abhinav Ahlawat FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 5 of 10 Ahlawat Date:
2023.09.26 15:36:16 +0530 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, 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.
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 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 Digitally signed by Abhinav FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 6 of 10 Abhinav Ahlawat Ahlawat Date:
2023.09.26 15:36:24 +0530 locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
APPRECIATION OF EVIDENCE
12. In the present case, there is only one material witness of the incident i.e., PW2 SI Rohtash who stated that he saw the accused indulging in touting activities. However, in his cross examination, he stated that there were other taxi drivers but he had not taken any statement of any taxi driver. He further stated that Airport Security Staff was also present there but he had not recorded their statement. He further stated that he had not placed on record any proof regarding presence of accused at the spot. In this manner, there is a major lapse on the part of IO to conduct proper and fair investigation regarding the incident, but the testimony of the complainant reflects substantial inconsistency in his crossexamination. This factor renders the testimony of the complainant himself unreliable.
13. Further, it is pertinent to highlight there that PW2 SI Rohtash 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 jeopardizes the case of the Digitally signed by Abhinav Abhinav Ahlawat FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 7 of 10 Ahlawat Date:
2023.09.26 15:36:34 +0530 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.
14. Apparently, the entire case seems to have been framed at the police station itself. Under Section 100 (4) of Cr. P. C., a duty is cast upon the police official conducting search from any person to call upon independent witnesses to join the investigation. Although it is true that such procedure is not always possible to follow because of the reluctance shown by the public witnesses to join police investigation, nevertheless, it has been held in catena of judgments that each case shall be determined on its own facts and circumstances and the prosecution shall have to provide a reasonable explanation for not being able to adhere to the procedure laid down in law. At this juncture, reliance can be placed on the judgment of Hon'ble Supreme Court in the case of State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 wherein it was held as herein under:
"7. It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the non compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question Digitally signed by Abhinav FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 8 of 10 Abhinav Ahlawat Ahlawat Date:
2023.09.26 15:36:43 +0530 whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
15. In the instant case, there is no corroborative evidence to support the testimony of PW2. While 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, nonetheless, as observed herein above, each case has to be determined on the basis of its peculiar facts and circumstances. In the instant case, the very foundation on which the prosecution case rested is shaken. Furthermore, there is no other witness who corroborate the prosecution case regarding the alleged act committed by the accused. 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. The aforesaid loopholes highlighted by the Court are sufficient to rebut the said presumption.
16. Furthermore, 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 emergency duty of PW2 to show his presence at whereby he arrested the accused.
CONCLUSION Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.09.26 15:36:54 +0530 FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 9 of 10
17. 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.
18. 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 BabuLal, 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 26.09.2023 in the presence Abhinav by
Digitally signed
Abhinav
Ahlawat
of the accused. Ahlawat Date: 2023.09.26
15:37:14 +0530
(Abhinav Ahlawat)
Metropolitan Magistrate-09,
Dwarka, Delhi/26.09.2023
Note:- This judgment contains 10 pages and each page has been signed by me.
Digitally signedAbhinav by Abhinav Ahlawat Ahlawat 15:37:20 Date: 2023.09.26 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/26.09.2023 FIR No. 14/22, PS Domestic Airport State vs. Babu Lal Page 10 of 10