Delhi District Court
State vs . Subodh Kumar on 22 September, 2022
IN THE COURT OF MS. NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
FIR No. 233/2021
PS : IGI Airport
U/s : 4 (C) DPTMT
State Vs. Subodh Kumar
JUDGMENT
(a) S. No. of the Case : 2627/2022
(b) Date of Commission of Offence : 24.08.2021
(c) Name of the complainant : HC Pradeep Kumar PIS No. 28060421 PS:IGI Airport, New Delhi.
(d) Name,parentage & address of : Subodh Kumar,
accused S/o Sh. Firangi Mehto,
R/o House No. A-216, Block
A, Gali No. 6, Phase 2,
Mangalapuri, Palam Village,
South West.
(e) Offence complained of : U/s 4 (C) of DPTMT Act
(f) Plea of Accused : Pleaded not guilty
(g) Date of final arguments : 21.09.2022
(h) Date of Decision : 21.09.2022
(i) Decision : Convicted
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. The case adumbrated by the prosecution is that on 23.08.2021 at about 03:45 am, HC Pradeep Kumar was present at Arrival Area, T-3, IGI Airport, New Delhi and he found accused Subodh Kumar soliciting the passengers by alluring them to Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.09.22 FIR No:- 233/2021 State v. Subodh Kumar 17:01:02 +0530 Page No. 1 of 6 arrange cheap conveyance and hotels. Accused was then taken to Police Station IGI Airport and produced before Station House Officer and after completion of formalities, the present FIR was registered, accused was arrested and the challan was filed HC Pradeep Kumar.
2. After appearance of accused, copy of chargesheet and other documents were supplied to him and accusations U/s 251 Criminal Procedure Code, 1973 (Cr.P.C) were explained to him for offence U/s 4(C) of Delhi Prevention of Touting and Malpractices Against Tourists Act 2010 (DPTMT) to which accused pleaded not guilty and claimed trial.
3. During prosecution evidence, Ct Pradeep Kumar was examined as PW-1 and SI Ranjit Singh was exmined as PW-2.
Both these witnesses narrated the sequence of events. They were also cross-examined on behalf of accused person. Also accused u/s 294 Cr.P.C has admitted the FIR as ExC-1 and Certificate u/s 65 IEA as Ex.C-2. Thereafter accused was examined u/s 281 r/w Section 313 Cr.P.C wherein he admitted being present at the spot on the date and time of incident. However, he did not lead any defence evidence. Thereafter, matter proceeded with final arguments.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused and scrupulously gone through the records of the case.
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6. Before returning my finding, let me reproduce relevant sections of DPTMT Act.
Section 3 of the DPTMT Act:- No person shall:- (a) commit any act of touting or malpractice against any tourist; (b) abet commission of any act of touting or malpractice against any tourist; (c) attempt to commit any act of touting or malpractice against any tourist.
Section 6 of DPTMT Act:- (1) if an offence of malpractice or touting takes place in the presence of a police officer, not below the rank of an assistant sub-inspector of police,such police officer may arrest the person and record his observations about such conduct of the individual that constituted the offence of touting.
(2) Any police officer having reason to suspect a person of indulging in the act of touting or malpractice against a tourist may search such person and may require an account in relation to any articles found in his possession and may seize such article if found suspicious and of such nature which could be used for commission of touting or malpractice against tourists. (3) A police officer not below the rank of an assistant sub- inspector of Police, may enter a public or private establishment which he has reason to believe was or is being used as a place for commission of touting or malpractice against tourists and inspect the same.
Section 9 Investigation, etc of offences:- Sub section-2 Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank of assistant sub-inspector shall investigate an offence under this Act. Digitally signed by NABEELA NABEELA WALI WALI Date: 2022.09.22 17:01:58 +0530 FIR No:- 233/2021 State v. Subodh Kumar Page No. 3 of 6
7. It is plain from the provisions of DPTMT Act that touting includes enticing, misguiding or coercing for transportation any passenger. Also police officials not below the rank of Assistant Sub-Inspector has powers to arrest the accused and also investigate the case. In compliance of this mandatory provision, investigation into the present case is shown to be carried out by SI Ranjit Singh.
8. It is limpid that the prosecution has examined police witness only. Thus, it is to be seen whether reliance can be placed upon his testimony. The law in this regard is settled by Hon'ble Supreme Court in Parmod Kumar Vs. State (NCT) of Delhi, AIR 2013 SC344 as under:-
".....The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony. This Court, after referring to State of U. P. Vs. Anil Singh, State, Govt. of NCT of Deli Vs. Sunil and Another and Ramjee Rai and Others Vs. State of Bihar, has laid down recently in Kasmiri Lal Vs. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the Court cannot definitely act upon the same. If, in the course of scrutinising the evidence, the Court finds the evidence of the police officer as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weights over the quantity of evidence".
9. It is fundamental principle of criminal jurisprudence that the prosecution must prove the guilt of accused beyond Digitally signed by NABEELA WALI NABEELA Date:
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reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, the prosecution should stand on its own legs and cannot derive any benefit from the weakness, if any, in the defence of the accused. It is further well settled that the primary burden of proof to prove the offence in criminal trial rests on the shoulders of the prosecution.
10. Now, PW-1 is a material witness of the prosecution who deposed specifically to the effect that on 24.08.2021 he was present at Gate No. 4 T-3, IGI Airport and found the accused alluring passengers into providing cheap taxi and hotel services. Further accused has also admitted his presence at the spot during his examination under Section 313 Cr.P.C. No plausible explanation or evidence is brought on record by the accused to justify his false implication by the complainant. Nothing substantial is brought on record on behalf of the accused to suggest otherwise. Mere fact that no public witness has been joined during investigation in the present case, is not fatal to the case of prosecution. It is well known that public persons choose not to become party to the investigation for obvious reasons. Reliance may be placed upon the case of Ambika Prasad and Ors v. State, (2002) 2 Crimes 63 SC, wherein it was observed by Hon'ble Supreme Court that independent persons are reluctant to be a witness or to assist the investigation.
11. The contention made by Ld. Counsel for accused that the IO failed to collect CCTV footage of the incident has merit. However, it is pertinent to note that presence of accused at the spot on the given date and time of incident is not in dispute. Hence this Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.09.22 17:02:44 +0530 FIR No:- 233/2021 State v. Subodh Kumar Page No. 5 of 6 submission by the Ld. LAC does not effect the prosecution case to large extent.
12. Keeping in view the aforesaid observations and material on record, it is held that prosecution has successfully proved that accused committed the act of touting by alluring passengers/tourists for cheap taxi and hotel and thereby causing annoyance to the passengers/tourists or general public. Therefore, the accused is convicted of offence under Section 4(c) of DPTMT Act. Copy of this judgment be given to the convict free of cost.
13. Ordered Accordingly. Convict be now heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT Digitally signed
by NABEELA
NABEELA
DATED: 22.09.2022 WALI
WALI
Date: 2022.09.22
17:03:00 +0530
(NABEELA WALI)
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
This judgment contains six pages and each page is signed by me.
Digitally signed by NABEELA NABEELA WALI
WALI Date: 2022.09.22
(NABEELA WALI)
17:03:10 +0530
ACMM-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
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