Delhi District Court
State ...........Prosecution vs . on 17 December, 2021
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09, SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 105/19
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 16812/19
CNR no. DLSW020504172019
IN THE MATTER OF:
State ...........Prosecution
Vs.
Manish @ Tolly
S/o Sh. Babu Lal
R/o H. no.9/60, East Mehram Nagar,
Delhi. .............Accused
1. Name of complainant : Ct. Ram Raj no.330A
2. Name of accused : Manish @ Tolly
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 : 19.08.2019
6. Date of institution of case : 28.09.2019
7. Date of reserving judgment : 13.12.2021
8. Date of pronouncement : 17.12.2021
9. Final judgment : Acquitted
State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.1/8
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 the complainant Ct. Ram Raj was on patrolling duty in the intervening night of 19/20.08.2019 from 07:00 pm to 08:00 am on government motorcycle. At around 11:45 pm, when he reached Car Pick Uip Zone, he saw one 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 and was also pointing the passengers towards his taxi bearing no. DL1T8749 make ECCO. He was instructed not to indulge in touting 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 Manish @ Tolly S/o Sh. Babu Lal. Thereafter, he took him along with his taxi 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 State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.2/8 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 FIR registered on 20.08.2019 under Section 294 of Cr. P. C. and consequently, PW ASI Rajender Singh was dropped from the list of witnesses and the FIR was marked as Ex.A1 vide court order dated 16.12.2019.
5. In order to prove its case, the prosecution examined three witnesses. PW3 Ct. Ram Raj, the complainant, stated that he was on patrolling duty in the intervening night of 19/20.08.2019 from 07:00 pm to 08:00 am on government motorcycle. At around 11:45 pm, when he reached Car Pick Uip Zone he saw one 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 and was also pointing the passengers towards his taxi bearing no. DL1T8749. He was instructed not to indulge in touting but to no avail. Thereafter, he apprehended him and he disclosed his name as Manish @ Tolly S/o Babu Lal upon enquiry. He took him along with his taxi to the police station and got his statement recorded which is Ex. PW1/A. Thereafter, tehrir was prepared and the FIR was registered which is Ex.A1. Then, the IO arrested the accused vide arrest memo Ex.PW1/C and seized his taxi vide seizure memo Ex.PW1/D in his presence. The accused was released on police bail. He correctly identified the photographs of taxi Ex. P1. He also correctly identified the accused present in court. In the crossexamination, he stated that he took the accused to the police station after apprehending him and did not give any telephonic information at police station. He further stated that he had gone to the spot alongwith IO during investigation on the same day but he did not remember the exact time.
6. PW1 SI Ishwar Singh, the IO, testified as to the investigation State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.3/8 conducted by him at around 12:00 midnight in the intervening night of 19/20.08.2019, the complainant came to the police station alongwith the accused and his taxi. After recording the statement of complainant, he made an endorsement thereon which is 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 taxi. He released the taxi in compliance with court order vide superdarinama Ex.PW1/E after preparing panchnama Ex. PW1/F. In his crossexamination, he stated that he did not make personal search memo after the arrest of accused. He further stated that he neither prepared the site plan nor examined any public witnesses in the present case as he never visited the spot of incident.
7. PW2 ASI Ved Prakash, MHC (M), brought the summoned record i.e. register no.19 and as per the entry no.346 of the said register Ex.PW2/A (OSR), the IO had deposited the seized taxi in the Malkhana.
8. 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 has been falsely implicated in the present case and was merely waiting in the queue to collect his prepaid slip and the police falsely filed the 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.
9. 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. Counsel appearing on behalf of accused has argued for his acquittal on the ground that he has been falsely implicated since the IO never visited the spot of State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.4/8 incident and there is also no public witness to testify as to the veracity of case.
10. Arguments heard. Perused the record.
11. 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, sightseeing 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.
12. In the present case, there is only one material witness of the incident i.e. PW3 Ct. Ram Raj who stated that he saw the accused indulging in touting activities. However, in his crossexamination, he stated that he went to the spot alongwith IO for further investigation on the same day. On the other hand, the IO himself stated in his crossexamination that he never went to the spot of incident for conducting investigation in the present matter. He admitted that he did not prepare the site plan and also did not make any effort to examine public witnesses since he never went to the spot of incident. 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 IO and the complainant reflect substantial inconsistency in their respective crossexaminations as the complainant stated that he had gone to the spot alongwith IO for investigation which is contradictory to what has been stated by the IO. This factor renders the testimony of the complainant himself unreliable.
13. 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 State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.5/8 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 noncompliance. 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 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."
14. In the instant case, the IO never visited the spot of incident in the first place, let alone providing any reasonable explanation. No public witnesses were joined. Further, there is no DD entry of the departure or arrival of State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.6/8 complainant Ct. Ram Raj on record. Ct. Ram Raj is police witness and there is no corrborative evidence to support his testimony. 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.
15. 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 owing to absence of any inculpatory act on the part of accused amounting to the act of touting, which is the pre requisite to convict a person under that provision. The basic ingredients of the offence have not been proved by prosecution so as to attract the offence in question in the instant case. The inescapable conclusion is that the accused is entitled to benefit of doubt.
16. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the accused Manish @ Tolly S/o Sh. Babu Lal R/o H. no.9/60, East Mehram Nagar, Delhi, is hereby acquitted of the offence punishable under Section 4 (a), The Delhi Prevention of Touting and State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.7/8 Malpractices against Tourist Act, 2010.
Pronounced in open court in the presence of accused on 17.12.2021.
(Bharti Garg) MM09/South West District Dwarka Court/New Delhi/17.12.2021 It is certified that this judgment contains eight pages and each page has been signed by the undersigned.
(Bharti Garg) MM09/South West District Dwarka Court/New Delhi/17.12.2021 State Vs. Manish @ Tolly CNR no. DLSW020504172019 Page no.8/8