Delhi District Court
State ...........Prosecution vs . on 28 April, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09, SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 40/20
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 2406/21
CNR no. DLSW020120952021
IN THE MATTER OF:
State ...........Prosecution
Vs.
Jubin Gupta
S/o Sh. Yatender Mohan Gupta
R/o RZ210, Gali no.9, Raj Nagar PartI,
Palam Colony, Delhi .............Accused
1. Name of complainant : ASI Ram Babu
2. Name of accused : Jubin Gupta
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 : 11.03.2020
6. Date of institution of case : 20.02.2021
7. Date of reserving judgment : 25.04.2023
8. Date of pronouncement : 28.04.2023
9. Final judgment : Convicted
JUDGMENT: State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.1/8 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.28 15:28:10 +0530
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 on 11.03.2020, the complainant ASI Ram Babu was on duty at Departure TerminalI, Domestic Airport, Delhi from 08:00 AM to 07:00 PM. At about 06:15 pm, he witnessed that one person came in Baleno car bearing registration no.DL6CR6032 and started inducing the passengers present there for accommodation and sightseeing on the pretext of providing them with 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 Jubin Gupta. He gave telephonic information at the police station and the IO arrived at the spot. The FIR was registered 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, was released on bail. The vehicle was seized and 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').
State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.2/8 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.28 15:28:23 +0530
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 no.40/20 dated 11.03.2020 alongwith certificate under Section 65B of Indian Evidence Act as Ex.A1 (colly) and DD no.31A dated 11.03.2020 as Ex.A2, under Section 294 of Cr. P. C.
5. In order to prove its case, the prosecution examined two witnesses. PW1 ASI Ram Babu (the complainant) deposed in consonance with the prosecution case and tendered his complaint Ex.PW1/A on the basis of which tehrir was prepared by the IO and FIR was registered. The IO arrested the accused vide arrest memo Ex.PW1/B, prepared the site plan Ex.PW1/C and seized the vehicle vide seizure memo Ex.PW1/D. He correctly identified the photographs of vehicle as Ex. P1 (colly). He also correctly identified the accused present in court. He was cross examined by accused wherein formal suggestions were put which were refuted by him.
6. PW2 Inspector Mahesh (IO) testified as to the investigation conducted by him. He stated that upon receipt of DD no.27A on 11.03.2020, he went to departure, T1D at Domestic Airport where he met ASI Ram Babu, who disclosed the entire incident and handed over to him the custody of accused and his vehicle. After recording the statement of complainant, he prepared the tehrir Ex.PW2/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 vehicle. He released the taxi in State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.3/8 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.28 15:28:31 +0530 compliance with court order after preparing panchnama Ex. PW2/B. In the crossexamination, he stated that he received DD no. 27A regarding call from ASI Ram Babu at about 06:30pm. No public person agreed to join the proceedings. The site plan was prepared by him on the day of incident.
7. On account of the admission made by accused under Section 294 Cr.P.C qua the genuineness of the FIR no.40/20 dated 11.03.2020 alongwith certificate under Section 65B of Indian Evidence Act as Ex.A1 (colly) and DD no.31A dated 11.03.2020 as Ex.A2, PW DO/ASI Babli was dropped from the list of prosecution witnesses and formal proof of these documents was dispensed with.
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 was not present at the spot. 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 both 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 as State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.4/8 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.04.28
15:28:41
+0530
there is no public witness to testify as to 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. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
12. Before delving into merits, it is pertinent to give a brief outline of the offence alleged against the accused. 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.
State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.5/8 Digitally signed by BHARTI BHARTI GARG Date:
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13. First and foremost, it is argued on behalf of accused that all the witnesses, primary and formal, examined by prosecution in the present case to prove the case are police officials. However, 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:
"6. Mr. D. D. Thakur, the learned senior counsel appearing for the appellant, submitted that PW4 to PW7 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."
14. In the case at hand, both PW1 ASI Ram Babu and PW2 Inspector Mahesh 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. PW2 specifically stated that he had asked public State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.6/8 Digitally signed by BHARTI BHARTI GARG Date:
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persons to join investigation but none agreed. 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. 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. It is further argued that CCTV footage has not been produced by prosecution in the present case. Nevertheless, no question was put to any of the witnesses regarding the fact if the spot where incident took place was covered with CCTV footage or not. As such, the failure to adduce the CCTV footage by the prosecution is not fatal, more so in view of the fact that the ocular evidence has remained entrenched. The witnesses have remained unshaken on material facts and nothing substantial could be elicited in the cross examination of PW1 ASI Ram Babu and PW2 Inspector Mahesh. There is no explanation, whatsoever, forthcoming from the accused as to why he would be falsely implicated. This fact goes on to only reinforce the case of prosecution.
15. Therefore, the court finds the evidence of prosecution witnesses completely reliable. Consequently, it is reflected from State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.7/8 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.04.28
15:29:22
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the prosecution evidence that the accused was found to be indulging in the act of touting the tourists on 11.03.2020 at 06:15 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.
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. Resultantly, the accused Jubin Gupta S/o Sh. Yatender Mohan Gupta R/o RZ210, Gali no.9, Raj Nagar PartI, Palam Colony, Delhi is hereby convicted for the offence punishable under Section 4(a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
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.
Digitally signed by BHARTI Pronounced in open court in the presence BHARTI GARG of accused on 28.04.2023. GARG Date: 2023.04.28 15:29:31 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/28.04.2023
It is certified that this judgment contains eight pages and each page has been signed by the undersigned.
BHARTI Digitally signed by BHARTI GARG GARG Date: 2023.04.28 15:29:41 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/28.04.2023 State Vs. Jubin Gupta CNR no. DLSW020120952021 Page no.8/8