Delhi District Court
State ...........Prosecution vs . on 28 October, 2021
IN THE COURT OF Ms. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 118/19
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 16814/2019
CNR no. DLSW020507352019
IN THE MATTER OF:
State ...........Prosecution
Vs.
Vivekanand Mandal
S/o Sh. Narender Prasad
R/o B195/2, Gali no.2,
Qutab ViharII, Najafgarh, Delhi .............Accused
1. Name of complainant : ASI Ashokan A.
2. Name of accused : Vivekanand Mandal
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 : 16.09.2019
6. Date of institution of case : 28.09.2019
7. Date of reserving judgment : 04.10.2021
8. Date of pronouncement : 28.10.2021
State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.1/10
9. Final judgment : Convicted
JUDGMENT:
1. The present case pertains to prosecution of accused persons 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 ASI Ashokan A. was on patrolling duty in the intervening night of 15/16.09.2019 from 07:00 pm to 08:00 am at Car Pick Up Area, Domestic Airport. On 16.09.2019 at around 03:50 am, he witnessed that at Ola/Uber car parking near flyover area, a person was indulging in touting by soliciting the passengers coming out of Arrival Hall on the pretext of providing them with cheap taxi services and hotels on discounted rates in Delhi and was also pointing the passengers towards his taxi bearing no.DL1RTB7792 make Wagon R. 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, enquired the said person disclosed his name as Vivekananad Mandal S/o Narender Prasad. Thereafter, he telephonically informed about the incident at police station and IO came to the spot. The FIR was then registered on the same date and 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. After the completion of investigation, chargesheet was filed against the accused.
3. Cognizance of the offence under Section 4 (a) of the Act was taken State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.2/10 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 was served upon the accused to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR and DD no.4B registered on 16.09.2019 under Section 294 of Cr. P. C. and consequently, PW HC Ram Prasad was dropped from the list of witnesses and the FIR was marked as Ex.P1 vide court order dated 22.02.2020.
5. In order to prove its case, the prosecution examined three witnesses. PW1 ASI Ashokan A., the complainant, stated that in the intervenninng night of 15/16.09.2019 he was on patrolling duty at Car Pick Up Area, Domestic Airport, Delhi from 07:00 pm to 08:00 am. On 16.09.2019 at about 03:50 am, he saw a person at Ola/Uber car parking near flyover area was indulging in touting by soliciting the passengers coming out of Arrival Hall on the pretext of providing them with cheap taxi services and hotels on discounted rates in Delhi and was also pointing the passengers towards his taxi bearing no.DL1RTB 7792. He was instructed not to indulge in touting but he did not desist from his conduct. Thereafter, he apprehended the driver and enquired about his name and address, the said person disclosed his name as Vivekananad Mandal S/o Narender Prasad and he telephonically informed about the incident at police station and after sometime IO came to the spot. He handed over the custody of accused and the taxi to the IO. The IO recorded his statement Ex.PW1/A and prepared a tehrir which was handed over to him. Then, he went to the PS and got the FIR registered. He further stated that after sometime, he came to the spot and handed over to IO the original tehrir and copy of FIR. The accused was arrested by IO vide arrest memo Ex.PW1/B and also seized the taxi vide seizure State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.3/10 memo Ex.PW1/C. IO prepared the site plan Ex.PW1/D at his instance. He correctly identified the photographs of taxi Ex. P1 (colly). He also correctly identified the accused present in court. In the crossexamination he admitted that place of incident is accessible to public persons and is under the CCTV surveillance. He admitted that there was a complaint box at Arrival Hall. However, he clarified that none of the public persons agreed to give their statement. Further, he stated that the information regarding the arrest of accused was given by the IO to a friend of accused but he did not remember if the phone number of that friend was mentioned on the arrest memo.
6. PW2 ASI Rajesh Kumar, the IO, testified as to the investigation conducted by him. Upon the receipt of DD no. 4B on 16.09.2019, he rushed to Ola/Uber Car Pickup Area, near Flyover, TerminalI, Domestic Airport where he met ASI Ashokan A, the complainant along with accused. He recorded the statement of complainant Ex.PW1/A and prepared a tehrir Ex. PW2/A. During investigation, he arrested the accused, seized his taxi and later on, released him on police bail. He released the taxi in compliance with court order on superdarinama after preparing panchnama Ex.PW2/B. In the crossexamination, he admitted that place of incident is accessible to public persons and is under the CCTV surveillance. He admitted that there was a complaint box at Arrival Hall and that he requested some public persons to join investigation, but none of them was willing to join the investigation and left the spot without disclosing their names and addresses. He further stated that information regarding the arrest of the accused was given to his wife namely Parmeshwari Yadav. He also admitted that the site plan does not bear the signatures of complainant.
7. PW3 Ct. Sanjeet Kumar MHC (M), brought the summoned record i.e. register no.19 and as per the entry no.401 of the said register Ex.PW3/A State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.4/10 (OSR), the IO had deposited the taxi in the Malkhana. The said witness was not crossexamined by the accused despite opportunity given to them.
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 not present at the Pick Up Point. 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 persons has argued for their acquittal on various grounds. He has pointed out defects in investigation as phone number of friend of accused is omitted in the arrest memo and also that the site plan does not bear the signatures of complainant. He has further contended that the accused has been falsely implicated as there was no complaint against him in the complaint box and no public witness has joined to testify as to the veracity of case. It is argued that CCTV footage has not been placed on record and that the case was falsely prepared at the police station.
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 State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.5/10 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. 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, 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 postIndependence years but it is time now to start placing State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.6/10 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 crossexamination 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 PW1 ASI Ashokan A. and PW2 ASI Rajesh Kumar have corroborated each other in material facts and have clarified in their crossexamination that none of the passengers was willing to join in the investigation. 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 State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.7/10 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. Moreover, 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.
14. However, in the present case, there isn't sufficient material to rebut the aforesaid presumption. The infirmities highlighted by the Ld. LAC for accused in the conduct of investigation as to omission of phone number of friend in the arrest memo and absence of signatures of complainant on the site plan are not so glaring as to render the evidence of PW1 and PW3 devoid of any credibility. The witnesses have remained unshaken on material facts and their evidence cannot be sidelined merely because the CCTV footage evidence has not been brought on record. Any defect in conducting investigation by IO is not necessarily fatal to prosecution case if such irregularity is not material in light of there being other cogent evidence on record. Else, criminal trial would be relegated to IO ruling the roost. Reliance is placed upon the judgment of Hon'ble Supreme Court in the case of Karnel Singh Vs. State of M.P. 1995(5) SCC 518: "5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.8/10 statements the statements of the two witnesses and would have drawn up a proper seizurememo in regard to the `Chaddi'. That is the reason why we have said that the investigation was slip shod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
15. Therefore, the court finds the evidence of prosecution witnesses completely reliable. The testimonies of all the prosecution witnesses have remained unshaken as nothing substantial could be elicited in the cross examination of PW1 ASI Ashokan A and PW2 ASI Rajesh Kumar. Moreover, no defence evidence has been led on behalf of the accused in support of his contention that he was not present at the spot and time of incident.
16. Therefore, the court finds the evidence of prosecution witnesses completely reliable. Consequently, it is reflected from the prosecution evidence that the accused was found to be indulged in the act of touting the tourists coming from Arrival Hall on 16.09.2019 at about 03:50 am, as he was enticing them to provide cheap hotels and taxi services. The offending act of accused persons is clearly covered under Section 4 (a) of the Act.
17. In view of the forgoing discussion, it is concluded that the prosecution has succeeded in proving its case beyond reasonable doubts against the accused. Resultantly, the accused Vivekanand Mandal S/o Sh. Narender Prasad R/o B195/2, Gali no.2, Qutab ViharII, Najafgarh, Delhi is hereby convicted for the offence punishable under Section 4(a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.9/10
18. Let the convict be heard separately on the quantum of sentence.
19. Copy of this judgment be given free of cost to the convict.
Pronounced in open court in the presence Digitally signed
by BHARTI
of accused on 28.10.2021. BHARTI GARG
GARG Date:
2021.10.28
15:05:27 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/28.10.2021
It is certified that this judgment contains ten pages and each page has been Digitally signed signed by the undersigned. BHARTI by BHARTI GARG GARG Date:
2021.10.28 15:05:14 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/28.10.2021 State Vs.Vivekanand Mandal CNR no. DLSW020507352019 Page no.10/10