Delhi District Court
State vs Manish Khutel on 22 June, 2024
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Manish Khutel
FIR No : 40/2023
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 : DLSW020401292023
2. Date of commission of offence : 22.07.2023
3. Date of institution of the case : 17.08.2023
4. Name of the complainant : HC Bani Ram
5. Name of accused, parentage & : Manish Khutel
address S/o Saroop Singh
R/o 8/118, Mehram
Nagar, 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 : 22.06.2024
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State.
Mr. Madan Lal, Ld. Counsel for accused.
Digitally signed
by Abhinav
Abhinav Ahlawat
FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 1 of 11 Ahlawat Date:
2024.06.22
10:43:00 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 22.07.2023 at about 11:50 PM, at Terminal-1, Near Private Pickup Parking, Domestic Airport, New Delhi, accused was found indulging in touting by enticing the tourists for accommodation and sight-
seeing on the pretext of providing them with hotels and services at discounted rates in Delhi in his private vehicle bearing registration no.HR-28BD-6563 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.40/2023 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 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 06.10.2023. The accused pleaded not guilty and claimed trial.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 2 of 11 Ahlawat Date:
2024.06.22 10:43:12 +0530 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 HC Bani Ram PW-2 SI Rajesh Kumar Koli 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.PW2/A Tehrir ADMITTED DOCUMENTS Ex.A1 FIR no.40/2023 along with Certificate under Section 65B of Indian Evidence Act
4. To prove its case, prosecution examined the following witnesses, the same are as follows.
PW1 HC Bani Ram (complainant) deposed that on 21.07.2023, he was on patrolling duty at Terminal-1, Arrival, Domestic Airport from 07:00 pm to 07:00 am. When he reached near private pickup parking of Terminal-1 at about 11:50 pm, he found one car make I-10 red colour bearing no.HR-26BD-6563 there and its driver disclosed his name as Manish. The accused person was talking with the tourist about hiring a car and can arrange hotel at cheaper price. The passengers were getting annoyed with his act. He asked the accused to mend his ways but he continued to doing so by which the passengers / tourist present were getting annoyed. Thereafter, he apprehended the accused and asked the passengers to give written complaint against him but they refused to give so and left the place without disclosing Digitally signed by Abhinav FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 3 of 11 Abhinav Ahlawat Date: Ahlawat 2024.06.22 10:43:28 +0530 their their names and addresses. Upon inquiry from accused, he disclosed that he used to entice the tourist for accommodation and sight seeing on the pretext of providing them with hotels and services at discounted rates in Delhi in his abovesaid private vehicle. Thereafter, he took the accused alongwith his car to the police station and handed over the same to emergency officer SI Rajesh who recorded his statement Ex.PW1/A. Thereafter, IO prepared the tehrir and got the present FIR registered. Thereafter, the IO arrested the present accused in his presence vide arrest memo Ex.PW1/B and conducted his personal search vide personal search memo Ex.PW1/C. IO also seized the abovesaid car of the accused vide seizure memo Ex.PW1/D. IO recorded my statement u/S 161 Cr. P. C. Thereafter, he was discharged. The witness correctly identified the accused present in the court and the offending vehicle/car through photographs as Ex.P1 (colly). In the cross-examination, he stated that he was alone on patrolling duty. DD entries were recorded regarding his patrolling duty at the spot. The said DD entries were not part of record. There were private vehicles at the spot when the accused was apprehended. Accused was calling the tourist and trying to entice in the presence of other private vehicles. He had not noted down the names and registration number of other private vehicles. The spot from where the accused was apprehended was under the CCTV surveillance. He did not know if the CCTV footage was procured or not.
5. PW2 SI Rajesh Kumar Koli deposed that on 22.07.2023 at about 12:15 am, HC Bani Ram brought one person to be alleged tout namely Manish Khutel at PS alongwith keys of vehicle of accused. he recorded statement of HC Bani Ram and thereafter, Digitally signed by Abhinav FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 4 of 11 Abhinav Ahlawat Ahlawat Date:
2024.06.22 10:43:42 +0530 he prepared tehrir Ex.PW2/A and got the present FIR registered. Thereafter, he arrested the accused, conducted his personal search and seized the abovesaid car of the accused. He recorded statement of witnesses u/S 161 Cr. P. C. Accused was released on police bail on furnishing surety bond. After completion of investigation, he submitted the charge-sheet before the concerned court. The witness correctly identified the accused present in the court and the offending vehicle/car through photographs. In the cross-examination, he stated that he did not receive any call from HC Bani Ram regarding apprehension of accused. The spot from where the accused was apprehended was about 200 meters from PS. HC Bani Ram straight away produced the accused at PS where he was present. He never visited the spot from where accused was apprehended. He never prepared any site plan before filing the charge-sheet. The spot from where the accused was apprehended was under the CCTV surveillance. He did not procure any CCTV footage regarding the activity of accused.
6. On account of admission of accused persons u/s 294 Cr.P.C, remaining in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined; hence, P.E. 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 05.04.2024 without oath Digitally signed by Abhinav Abhinav Ahlawat FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 5 of 11 Ahlawat Date:
2024.06.22 10:43:55 +0530 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 did not want to lead defence evidence.
FINAL ARGUMENTS
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 offence.
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
11. 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 Digitally signed by Abhinav FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 6 of 11 Abhinav Ahlawat Date:
Ahlawat 2024.06.22 10:44:08 +0530 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, 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.
12. 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:
Digitally signed by AbhinavFIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 7 of 11 Abhinav Ahlawat Date: Ahlawat 2024.06.22 10:44:18 +0530 "6. Mr. D. D. Thakur, the learned senior counsel appearing for the appellant, submitted that PW-4 to PW-7 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."
APPRECIATION OF EVIDENCE
13. In the present case, there is one material witness of the incident i.e., PW1 HC Bani Ram. Thereby the only testimony for proving the touting activities of the accused is PW1 HC Bani Ram. However, PW1 stated that when he apprehended the accused when he was enticing the passengers, he asked the passengers to give written complaint but all of them refused without disclosing their names and addresses. PW1 further stated in his cross- examination that accused was calling the tourist and trying to entice them in the presence of other private vehicles but he had not noted down the names and registration number of those private vehicle. PW1 further stated that the spot from where the accused was apprehended under the CCTV surveillance but he did not know whether the same vidoe footage was procured or not.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 8 of 11 Date:
Ahlawat 2024.06.22 10:44:29 +0530
14. Further, IO PW2 SI Rajesh Kumar Koli stated that he prepared the tehrir and got the FIR regitered, he interrogated the accused and arrested him and seized the offending vehicle. The relevant fact which has emerged in cross-examination of PW2 is that he never visited the spot of incident. PW2 further stated that he did not procure any CCTV footage regarding the activity of accused though the spot from where the accused was apprehended was under CCTV surveillance.
15. Although the accused has not led any defence evidence, however, in his statement under Section 313 Cr. P. C. he stated that he was innocent and falsely implicated in the present case. 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".
16. Further, it is pertinent to highlight there that PW2 SI Rajesh Kumar Koli 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.
Digitally signed by AbhinavFIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 9 of 11 Abhinav Ahlawat Ahlawat Date:
2024.06.22 10:44:39 +0530 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.
17. 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 there is no record to even show that PW1 was on patrolling duty at the time of incident in question as no such DD entry has been placed on record. In fact, the testimonies of both the complainant and IO are not able to justify and establish the presence of accused at the spot and thereby even rendering their presence at the spot and their witnessing the alleged incident highly doubtful. No independent public witness has been joined in the investigation despite presence of the same at a busy place like Airport which further makes the prosecution case dubious.
CONCLUSION
18. 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.
19. The upshot of the foregoing discussion is that the prosecution has failed to establish the charge of Section 4 (a), The Delhi Digitally signed by Abhinav FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 10 of 11 Abhinav Ahlawat Ahlawat Date:
2024.06.22 10:44:48 +0530 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 Manish Khutel S/o Saroop Singh , 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 Digitally signed on 22.06.2024 in the presence by Abhinav Abhinav Ahlawat Ahlawat Date:
of the accused. 2024.06.22
10:44:55 +0530
(Abhinav Ahlawat)
Metropolitan Magistrate-09,
Dwarka, Delhi/22.06.2024
Note:- This judgment contains 11 pages and each page has been signed by me. Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2024.06.22 10:45:01 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/22.06.2024 FIR No. 40/2023, PS Domestic Airport State vs. Manish Khutel Page 11 of 11