Delhi District Court
State ...........Prosecution vs . on 1 February, 2022
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE-09, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 07/20
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 1753/20
CNR no. DLSW020106212020
IN THE MATTER OF:-
State ...........Prosecution
Vs.
Umesh Yadav
S/o Sh. Ramdev
R/o H. no.T-265, Chirag Delhi
New Delhi. .............Accused
1. Name of complainant : Ct. Sanjeet no.312/A
2. Name of accused : Umesh Yadav
3. Offence complained of : Under Section 4(a), The
Delhi Prevention of Touting
and Malpractices against
Tourist Act 2010 and under
Section 482, Indian Penal
Code 1860.
4. Plea of accused : Not guilty
5. Date of commission of offence : 16.01.2020
6. Date of institution of case : 06.03.2020
7. Date of reserving judgment : 04.01.2022
State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.1/9
Digitally signed by BHARTI
BHARTI GARG GARG
Date: 2022.02.01 13:12:52
+05'30'
8. Date of pronouncement : 01.02.2022
9. Final judgment : Convicted U/s 4(a), The
Delhi Prevention of Touting
and Malpractices against
Tourist Act 2010 and under
Section 482.
Acquitted U/s 482 IPC.
JUDGMENT:-
1. The present case pertains to prosecution of accused in respect of offences punishable U/s 4 (a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010 (hereinafter referred to as 'Act') and U/s 482 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. In nutshell, the case of the prosecution is that on 16.01.2020 the complainant Ct. Sanjeet was on patrolling duty at Car Pick Up Zone, Terminal- 1, Domestic Airport from 08:00 am to 07:00 pm. At around 01:10 pm, he witnessed that one person had parked his taxi bearing no.DL1Z-5560 at Car Pick Up Zone and 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. 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 Umesh Yadav S/o Sh. Ramdev. Thereafter, he gave telephonic information at the police station and the IO came to the spot. They checked the back side of the taxi and found one number plate DL-1ZB-1012 lying there and thereafter, the IO checked the RC of the said taxi which had also mentioned the taxi no. DL-1ZB- 1012. In this manner, the accused used false number plate. The FIR was registered on the same date. Investigation was conducted by the IO wherein statements of State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.2/9 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.02.01 13:13:06 +05'30' 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 and both number plates were also seized, and the taxi 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 offences under Section 4 (a) of the Act and 482 IPC 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 accusation u/S 4 (a) of the Act and u/S 482 IPC was served upon the accused to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR registered on 16.01.2020 under Section 294 of Cr. P. C. and consequently, WASI Manita was dropped from the list of witnesses and the FIR was marked as Ex.C1 vide court order dated 01.04.2021.
5. In order to prove its case, the prosecution examined three witnesses. PW2 Ct. Sanjeet, the complainant, stated that on 16.01.2020 he was on patrolling duty at Car Pick Up Zone, Terminal-1, Domestic Airport. At around 01:10 pm, he witnessed that one person had parked his taxi bearing no.DL1Z- 5560 at Car Pick Up Zone and 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. 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 Umesh Yadav. Thereafter, he gave telephonic information at the police station and the IO came to the spot. They checked the back side of the taxi and found one number plate DL-1ZB-1012 lying there and thereafter, the IO checked the RC State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.3/9 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 13:13:18 +05'30' of the said taxi which had also mentioned the taxi no. DL-1ZB-1012. He got his statement recorded which is Ex.PW2/A. After the registration of FIR Ex. C1, the IO arrested the accused vide arrest memo Ex.PW2/B, seized his taxi vide seizure memo Ex.PW2/C and seized two number plates i.e. DL1Z5560 and DL1ZB1012 vide seizure memo Ex.PW2/D. The accused was released on police bail. He correctly identified the photographs of taxi and both the number plates Ex. P1 (colly). He also correctly identified the accused present in court. In the cross-examination, he stated that the spot of incident was under the CCTV surveillance. He stated that no complaint was received from any passenger in respect of the incident. He stated that he had heard the accused saying words "Hum apko taxi me le jayange or saste me hotel bhi dila denge agar chaiye to" and he had narrated the said words spoken by the accused in his complaint Ex.PW2/A. When the witness was confronted with his statement Ex.PW2/A and asked if the said words were specifically mentioned in the said statement, he admitted that the said exact words were not mentioned in his complaint, however, he clarified that there was mention about the essence of his words therein. He stated that he did not check the ID card of the persons with whom the accused was doing touting and he presumed that those persons were passengers as they were coming out of the Arrival Hall as mostly, only the passengers come out of the Arrival Hall. He did not inquire about the details of any of the passengers and no site plan was prepared.
6. PW3 SI Ishwar Singh, testified as to the investigation conducted by him. After recording the statement of complainant, he prepared the tehrir Ex.PW3/A and got the FIR registered. Upon the receipt of original tehrir and copy of FIR, he proceeded to arrest the accused and seize his taxi and both the number plates. In his cross-examination, he stated that he did not inquire any passenger or any staff person about the incident and admitted that the spot of incident is under CCTV surveillance. He further stated that he did not obtain State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.4/9 BHARTI GARG Digitally signed by BHARTI GARG Date: 2022.02.01 13:13:28 +05'30' the CCTV footage of the arrival of the taxi in the present case. He stated that the alleged passengers with whom the accused did touting had already left when he reached the spot of incident and he did not make any other inquiry regarding the identity or details of the said alleged passenger with whom the accused did touting. He further stated that he had verified the owner of the taxi no.DL-1ZB- 1012 as Rajesh but he did not make any verification of the ownership details of taxi no.DL-1Z-5560.
7. PW1 ASI Ved Prakash, MHC (M), brought the summoned record i.e. register no.19 and as per the entry no.229 of the said register Ex.PW1/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. He further stated that he had gone to drop the passenger at the Airport and had parked his taxi at Pick Up Point for more than eight minutes because of which the GMR staff asked him to go away but he requested them to let him wait for the passenger for two more minutes. Thereafter, they locked his car and called at the police station. In this manner, the false case has been filed 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. LAC appearing on behalf of accused has argued for his acquittal on the ground that he has been falsely implicated as there is no public witness to testify as to State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.5/9 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 13:13:38 +05'30' the veracity of case and further no CCTV footage has been produced to corroborate the testimony of police witnesses.
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, sight-seeing 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. Furthermore, Section 482 IPC makes punishable the act of using of false property mark.
12. Firstly, as regards the offence under Section 4 (a) of the Act, 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 Kulwinder Singh and another Vs. State of Punjab (2015) 6 SCC 674, wherein it has been observed as hereinunder:
"23. The last plank of submission of the learned counsel for the appellants is that no independent witness has been examined to substantiate the allegation of the prosecution. It is worth to note that Labh Singh and Harvinder Singh have not been examined by the prosecution. The explanation has been offered that the investigating agency was of the view that they had been won over. The said explanation has been totally substantiated inasmuch as they have been examined as defence witnesses. In such a situation, no adverse inference can be drawn for non-examination of the said witnesses. That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.6/9 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.02.01 13:13:47 +05'30' on the perusal of the evidence on record the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. In this regard, it is profitable to reproduce a passage from State (Govt. of NCT of Delhi) V. Sunil 2001 1 SCC 652 which reads as follows:
"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post- Independence years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
24. In the case at hand, the evidence is unimpeachable and beyond reproach and the witnesses cited by the prosecution can be believed and their evidence has been correctly relied upon by the trial court and the High Court to record a conviction. It is well settled in law that what is necessary for proving the prosecution case is not the quantity but the quality of the evidence."
13. In the case at hand, both PW2 Ct. Sanjeet and PW3 SI Ishwar Singh State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.7/9 Digitally signed by BHARTI GARG BHARTI GARG Date: 2022.02.01 13:13:57 +05'30' have corroborated each other in material facts. Their testimonies cannot be doubted solely on the ground that no independent witness came forward to take part in the proceedings. The place of incident i.e. the Domestic Airport is such that the passengers or the tourists may be reasonably assumed to exhibit such kind of conduct as mostly they are in a hurry to catch their flight or head back towards their respective places after journey. There is also no bar on lodging the complaint by a police official as such. The witnesses have remained unshaken on material facts and nothing substantial could be elicited in the cross- examination of PW2 Ct. Sanjeet and PW3 SI Ishwar Singh as far as the alleged act of touting is concerned. Although the production of CCTV footage would have operated as corroborative evidence, nevertheless, the failure to do so by the prosecution is not fatal as the ocular evidence has remained entrenched. The accused has admitted that he was present at the spot and there is no explanation tendered by him as to why he would be falsely implicated. This fact goes on to only reinforce the case of prosecution.
14. Nevertheless, the evidence on record qua the offence U/s 482 IPC is feeble. The IO stated that he found the number plate DL1ZB1012 in the car of accused on which the number plate DL1Z5560 was affixed. He further stated that the accused handed over the RC of the car in respect of number DL1ZB1012. However, the said RC is not produced in evidence. Moreover, the IO did not make any verification regarding the number DL1Z5560 to ascertain if the said number was completely false or belonged to some other car. The only documents on record are the photograph of both the number plates and of the Whit Maruti Swift Dzire having number DL1Z5560. The oral testimony suggests that the accused was driving the car with number DLiZ5560. Merely this does not indicate that the accused had used the false number plate. Thus, there is no other evidence on record which would substantiate the case of State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.8/9 BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.02.01 13:14:07 +05'30' prosecution that the accused had used a false property mark.
15. Consequently, it is reflected from the prosecution evidence that the accused was found to be indulging in the act of touting the tourists present at Arrival Hall on 16.01.2020 at 01:10 pm, as he was enticing them to provide cheap hotels and taxi services. The offending act of accused is clearly covered under Section 4 (a) of the Act. However, the prosecution has miserably failed to prove the ingredients of Section 482 IPC.
16. In view of the forgoing discussion, it is concluded that the prosecution has succeeded in proving its case beyond reasonable doubts against the accused in respect of Section 4(a) of the Act, but it has failed in proving its case beyond reasonable doubts in respect of Section 482 IPC. Resultantly, the accused Umesh Yadav S/o Sh. Ramdev R/o H. No. T-65 Chirag Delhi, New Delhi is hereby convicted for the offence punishable under Section 4(a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010, and acquitted of the offence punishable under Section 482 of Indian Penal Code, 1860.
17. Let the convict be heard separately on the quantum of sentence.
18. Copy of this judgment be given free of cost to the convict.
Pronounced in open court in the presence of accused on 01.02.2022. BHARTI GARG Digitally signed by BHARTI GARG Date: 2022.02.01 13:14:19 +05'30' (Bharti Garg) MM-09/South West District Dwarka Court/New Delhi/01.02.2022 It is certified that this judgment contains nine pages and each page has been signed by the undersigned.
BHARTI Digitally signed by BHARTI
GARG
GARG Date: 2022.02.01 13:14:31
+05'30'
(Bharti Garg)
MM-09/South West District
Dwarka Court/New Delhi/01.02.2022
State Vs. Umesh Yadav CNR no. DLSW020106212020 Page no.9/9