Delhi District Court
State vs Bibeka Nand Mandal on 19 April, 2024
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Bibeka Nand Mandal
FIR No : 30/2022
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 : DLSW020192102023
2. Date of commission of offence : 05.07.2022
3. Date of institution of the case : 11.04.2023
4. Name of the complainant : Ct. Parveen
5. Name of accused, parentage & : Bibeka Nand Mandal
address S/o Narender Prasad
Mandal,
R/o B-195/2, Gali no.2,
Qutub Vihar Phase-II,
Najafgarh, New 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 : 19.04.2024
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State.
Mr. Manish Sehrawat, Ld. LAC for accused.
Digitally signed
by Abhinav
FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 1 of 10 Abhinav Ahlawat
Date:
Ahlawat 2024.04.19
16:39:59
+0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 05.07.2022 at about 02:30 AM, at Arrival Terminal-1, Near Ola Uber Pick Up Point, 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 taxi bearing registration no.DL-1RTB-7792 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.30/2022 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 Ld. Predecessor of this 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 08.05.2023. The accused pleaded not guilty and claimed trial.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 2 of 10 Ahlawat Date:
2024.04.19 16:40:06 +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 Praveen PW-2 SI Reema DOCUMENTARY EVIDENCE Ex.PW1/A Statement of complainant Ex.PW1/B Seizure memo Ex.PW1/C Arrest memo Ex.PW2/A Rukka ADMITTED DOCUMENTS Ex.A1 FIR no.30/2022 along with Certificate under Section 65B of Indian Evidence Act
4. PW1 HC Praveen (complainant) deposed that on 05.07.2022, he was on patrolling duty at Terminal-1, Arrival, Ola-Uber Parking from 11:00 pm to 07:00 am. During the patrolling at about 02:30 am, when he reached near Ola-Uber Pickup Point, he saw one person was offering the passenger ride of taxi and hotel on cheap rates. Due to his act, passengers were getting annoyed. He stopped the said person but he did not stop touting the passengers. Thereafter, he apprehended the abovesaid person and during interrogation, he revealed his name as Bibeka Nand Mandal. He asked some passengers to give complaint against the abovesaid person but all passengers refused to do the same and left the spot without disclosing their names and addresses. He also took car of accused bearing registration no.DL-1RTB-7792 make Wagon R white colour. Thereafter, he left the spot alongwith accused and case property. After reaching the PS, SI Reema recorded his statement Ex.PW1/A. On the basis of which Digitally signed by Abhinav Abhinav Ahlawat Date: FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 3 of 10 Ahlawat 2024.04.19 16:40:12 +0530 IO prepared tehrir and the present FIR was registered against the accused. He handed over the accused and case property to IO. IO seized abovesaid car of accused in his presence vide seizure memo Ex.PW1/B and arrested the accused vide arrest memo Ex.PW1/C. The witness has correctly identified the accused present in the Court. In the cross-examination, he stated that no complaint was made by any passenger who were present at the spot and no passenger joined the investigation. He stated that there were many passengers at the spot. IO visited the spot during the investigation but not on the date of incident. IO also did not prepare the site plan in his presence. He stated that CCTV cameras were installed at the spot. No CCTV footage was seized by the IO during the investigation.
5. PW2 SI Reema deposed on 05.07.2022 at about 03:00 pm, Ct.
Parveen came at PS alongwith one person and one white Wagon R car bearing registration no.DL-1RTB-7792. After reaching the PS, Ct. Parveen handed over the custody of the said person and abovesaid Wagon R car to her. After that, she recorded statement of Ct. Parveen. On the basis of which she prepared rukka and got the FIR registered through Duty Officer. During interrogation, accused disclosed his name as Bibeka Nand Mandal. She also seized the abovesaid Wagon R car and arrested the accused. Accused was released on bail after furnishing bail bonds. After completion of investigation, she submitted the charge-sheet before the concerned Court. The witness has correctly identified the accused present in the Court. In the cross-examination, she stated that she never visited the spot of incident. She did not prepare the site plan. She stated that CCTV cameras were Digitally signed by Abhinav Abhinav Ahlawat FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 4 of 10 Ahlawat Date:
2024.04.19 16:40:22 +0530 installed at the spot and she did not seize the CCTV footage of the spot. She did not record statement of any public person.
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 08.01.2024 without oath 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 was plying the taxi near roundabout and the police arrested him. 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 Digitally signed by Abhinav FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 5 of 10 Abhinav Ahlawat Ahlawat Date:
2024.04.19 16:40:36 +0530 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 offences.
10. Per contra, the Ld. LAC for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. LAC 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 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 Digitally signed by Abhinav FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 6 of 10 Abhinav Ahlawat Date:
Ahlawat 2024.04.19 16:41:51 +0530 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:
"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."Digitally signed by Abhinav
FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 7 of 10 Abhinav Ahlawat Date:
Ahlawat 2024.04.19 16:42:01 +0530 APPRECIATION OF EVIDENCE
13. In the present case, there is one material witness of the incident i.e., PW1 HC Praveen. Thereby the only testimony for proving the touting activities of the accused is PW1 HC Praveen. However, in cross-examination of PW1, no inconsistencies are reflected but PW1 stated that in If cross examination that no complaint was made by any person who were present there nor he served any notice upon the public persons for joining them in investigation. Further, PW1 stated that IO had not prepared the site plan of the spot of incident in his presence.
14. Further, IO PW2 SI Reema stated that she prepared the tehrir and handed over the same to Duty Officer for registration of FIR and after the registration of FIR, she interrogated the accused and arrested him and seized the offending vehicle. The relevant fact which has emerged in cross-examination of PW2 is that she never visited the spot of incident.
15. Although the accused has not led any defence evidence, however, in his statement under Section 313 Cr. P. C. he stated that no such incident ever happened and complainant had falsely filed the present case against him. 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 Digitally signed by Abhinav FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 8 of 10 Abhinav Ahlawat Date:
Ahlawat 2024.04.19 16:42:13 +0530 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 Reema 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. 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 the testimonies of the witnesses are tainted with substantial inconsistencies. In fact, the testimonies of both the complainant and IO are contradictory to each other on certain material points as discussed herein before, thereby rendering their presence at the spot and their witnessing the alleged incident highly doubtful. No independent public witness has been joined in the investigation which further makes the prosecution case dubious. Further, there is no DD entry regarding the patrolling duty of PW1.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 9 of 10 Ahlawat Date:
2024.04.19 16:42:25 +0530 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 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 Bibeka Nand Mandal S/o Narender Prasad Mandal, 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 19.04.2024 in the presence Abhinav by Abhinav
Ahlawat
of the accused. Ahlawat 16:42:32
Date: 2024.04.19
+0530
(Abhinav Ahlawat)
Metropolitan Magistrate-09,
Dwarka, Delhi/19.04.2024
Note:- This judgment contains 10 pages and each page has been signed by me. Abhinav by Digitally signed Abhinav Ahlawat Ahlawat Date: 2024.04.19 16:42:38 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/19.04.2024 FIR No. 14/22, PS Domestic Airport State vs. Bibeka Nand Mandal Page 10 of 10