Delhi District Court
State vs . Anuj Kumar on 15 November, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
FIR No. 291/2020
PS : IGI Airport
U/s : 4 (C) DPTMT
State Vs. Anuj Kumar
JUDGMENT
(a) S. No. of the Case : 9074/2020
(b) Date of Commission of Offence : 09.12.2020
(c) Name of the complainant : HC Ajeet, PIS No. 28010163, PS:IGI Airport, New Delhi.
(d) Name,parentage & address of : Anuj Kumar
accused S/o Sh. Satvir Singh,
R/o H. No. 16/2, Sarai
Kale Khan, Delhi, Hazarat
Nizamuddin, South-East,
Delhi.
(e) Offence complained of : U/s 4 (C) of DPTMT Act
(f) Plea of accused : Pleaded not guilty
(g) Date of final arguments : 15.11.2022
(h) Date of Decision : 15.11.2022
(i) Decision : Convicted
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. The case adumbrated by the prosecution is that on 09.12.2020 at about 10:30 pm, HC Ajeet Singh was present at Arrival Wing, T-3, IGI Airport, New Delhi. He found the accused FIR No:- 291/2020 State v. Anuj Kumar Page No. 1 of 7 person namely Anuj Kumar soliciting the passengers by alluring them to arrange cheap conveyance and hotel. Despite request by the complainant, accused continued to indulge in touting activities. The accused along with his car bearing no. DL1ZB9639 was then taken to Police Station IGI Airport and after completion of formalities, present case was registered against the accused for the offence punishable under Section 4(c) of The Delhi Prevention of Touting and Malpractices against Tourists Act, 2010 (hereinafter, referred to as "DPTMT Act").
2. Charge-sheet in the present case was filed on 02.11.2021. After appearance of accused, copy of chargesheet and other documents were supplied to him and accusations U/s 251 Criminal Procedure Code, 1973 (Cr.P.C) were explained to him for offence U/s 4(C) of Delhi Prevention of Touting and Malpractices Against Tourists Act 2010 (DPTMT) to which accused pleaded not guilty and claimed trial.
3. Thereafter matter proceeded for prosecution evidence. During prosecution evidence, HC Ajeet Singh was examined as PW-1.He stated that on 09.12.2020 he was near Arrival Pillar No. 4, T-3 IGI Airport and found the accused indulging in touting activities with foreigners. As per PW-1 accused was touting and boarding passengers in his car bearing no.DL1ZB9639. As per PW-1, IO reached the spot and accused was handed over to him. PW-1 proved his complaint Ex.PW1/A and arrest memo of accused which is Ex.PW1/B. PW-1 correctly identified the photographs of car bearing no. DL1ZB9639 which are Mark P1(colly). PW-1 was FIR No:- 291/2020 State v. Anuj Kumar Page No. 2 of 7 duly cross-examined by Ld. Counsel for the accused wherein he stated that no statement of any other passengers was recorded.
4. SI Vishal Gupta was examined as PW-2. The witness narrated the sequence of events and proved the complaint Ex.PW1/A and endorsement made on the rukka, which is Ex PW 2/A. PW-2 stated that he had got registered the present FIR and prepared the arrest memo Ex.PW1/B and recorded the statement of the accused Ex.PW2/B and prepared the seizure memo of the car bearing no. DL1ZB9639 which is Ex.PW2/C bearing his signature at point A respectively. PW-2 correctly identified the accused present before the court and photographs of the car bearing no. DL1ZB9639 which are Mark P-1 (colly). PW-2 was cross- examined by the Ld. Counsel for the accused wherein he denied taking on record any CCTV footage from the spot or recording statement of any passenger or public person with respect to the case.
5. No other prosecution witness was examined and PE was closed. Also accused u/s 294 Cr.P.C has admitted the copy of the FIR as ExC-1 (colly) and Certificate u/s 65 IEA as Ex.C-2. Thereafter accused was examined u/s 281 r/w Section 313 Cr.P.C wherein he admitted being present at the spot on the date and time of incident. However, he denied indulging in touting activities and did not lead any defence evidence. Thereafter, matter proceeded with final arguments.
FIR No:- 291/2020 State v. Anuj Kumar Page No. 3 of 7
7. I have heard Ld. APP for the State and Ld. Counsel for the accused and scrupulously gone through the records of the case.
8. Before returning my finding, let me reproduce relevant sections of DPTMT Act.
Section 2(f) of the DPTMT Act:- 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 Section 3 of the DPTMT Act:- No person shall:- (a) commit any act of touting or malpractice against any tourist; (b) abet commission of any act of touting or malpractice against any tourist; (c) attempt to commit any act of touting or malpractice against any tourist.
Section 6 of DPTMT Act:- (1) if an offence of malpractice or touting takes place in the presence of a police officer, not below the rank of an assistant sub-inspector of police,such police officer may arrest the person and record his observations about such conduct of the individual that constituted the offence of touting.
(2) Any police officer having reason to suspect a person of indulging in the act of touting or malpractice against a tourist may search such person and may require an account in relation to any articles found in his possession and may seize such article if found suspicious and of such nature which could be used for commission of touting or malpractice against tourists.
FIR No:- 291/2020 State v. Anuj Kumar Page No. 4 of 7 (3) A police officer not below the rank of an assistant sub- inspector of Police, may enter a public or private establishment which he has reason to believe was or is being used as a place for commission of touting or malpractice against tourists and inspect the same.
Section 9 Investigation, etc of offences:- Sub section-2 Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank of assistant sub-inspector shall investigate an offence under this Act.
9. It is plain from the provisions of DPTMT Act that touting includes enticing, misguiding or coercing for transportation any passenger. Also police officials not below the rank of Assistant Sub-Inspector have powers to arrest the accused and also investigate the case. In compliance of this mandatory provision, investigation into the present case is shown to be carried out by SI Vishal Gupta.
10. It is limpid that the prosecution has examined police witnesses only. Thus, it is to be seen whether reliance can be placed upon their testimony. The law in this regard is settled by Hon'ble Supreme Court in Parmod Kumar Vs. State (NCT) of Delhi, AIR 2013 SC344 as under:-
".....The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony. This Court, after referring to State of U. P. Vs. Anil Singh, State, Govt. of NCT of Deli Vs. Sunil and Another and Ramjee Rai and Others Vs. State of Bihar, has laid down recently in Kasmiri Lal Vs. State of Haryana that there is no absolute FIR No:- 291/2020 State v. Anuj Kumar Page No. 5 of 7 command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the Court cannot definitely act upon the same. If, in the course of scrutinising the evidence, the Court finds the evidence of the police officer as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence".
11. It is fundamental principle of criminal jurisprudence that the prosecution must prove the guilt of accused beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, the prosecution should stand on its own legs and cannot derive any benefit from the weakness, if any, in the defence of the accused. It is further well settled that the primary burden of proof to prove the offence in criminal trial rests on the shoulders of the prosecution.
12. Now, PW-1 & PW-2 are material witnesses of the prosecution who deposed specifically to the effect that on 09.12.2020 accused was apprehended for alluring passengers into providing cheap taxi and hotel services. Further accused has also admitted his presence at the spot on the date of incident during his examination under Section 313 Cr.P.C r/w Section 281 Cr.P.C. No plausible explanation or evidence is brought on record by the accused to justify his false implication by the complainant. Mere fact that no public witness has been joined during investigation in the present case, is not fatal to the case of prosecution. It is well known that public persons choose not to become party to the FIR No:- 291/2020 State v. Anuj Kumar Page No. 6 of 7 investigation for obvious reasons. Reliance may be placed upon the case of Ambika Prasad and Ors v. State, (2002) 2 Crimes 63 SC, wherein it was observed by Hon'ble Supreme Court that independent persons are reluctant to be a witness or to assist the investigation.
13. Keeping in view the aforesaid observations and material on record, it is held that prosecution has successfully proved that accused committed the act of touting by alluring passengers/tourists for cheap taxi and hotel and thereby causing annoyance to the passengers/tourists or general public. Therefore, the accused namely Anuj Kumar S/o Sh. Satvir Singh is convicted of offence under Section 4(c) of DPTMT Act. Copy of this judgment be given to the convict free of cost.
14. Ordered Accordingly. Convict be now heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT DATED: 15th NOVEMBER, 2022 This judgment contains seven pages and each page is signed by me.
(NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI 15.11.2022 FIR No:- 291/2020 State v. Anuj Kumar Page No. 7 of 7