Delhi District Court
State ...........Prosecution vs . on 18 May, 2022
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09, SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 127/19
PS Domestic Airport
Under Section 482 IPC and 4 (a) DPTMT
Act
Cr. Case no. 368/20
CNR no. DLSW020018222020
IN THE MATTER OF:
State ...........Prosecution
Vs.
Rajesh Singh
S/o Sh. Balbir Singh
R/o 15/250, Kalyanpuri East,
New Delhi. .............Accused
1. Name of complainant : HC Baldev Singh
2. Name of accused : Rajesh Singh
3. Offence complained of : Under Section 4(a), The
Delhi Prevention of Touting
and Malpractices against
Tourist Act 2010 and under
Section 482, Indian Penal
Code 1860.
4. Plea of accused : Not guilty
5. Date of commission of offence : 03.11.2019
6. Date of institution of case : 13.01.2020
7. Date of reserving judgment : 18.05.2022
State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.1/10
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2022.05.18
16:27:49 +0530
8. Date of pronouncement : 18.05.2022
9. Final judgment : Acquitted
JUDGMENT:
1. The present case pertains to prosecution of accused in respect of offences punishable U/s 4 (a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010 (hereinafter referred to as 'Act') and U/s 482 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. In nutshell, the case of the prosecution is that on 03.11.2019 the complainant HC Baldev Singh was on duty at Car Pick Up Zone, Terminal1, Domestic Airport from 08:00 am to 07:00 pm. At around 02:30 pm, he witnessed that one person had parked his taxi bearing no.DL8CAW7416 at Car Pick Up Zone and was inducing the passengers on the pretext of providing them with cheap 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 Rajesh Singh S/o Sh. Balbir Singh. On enquiry, accused produced the RC which mentioned registration number of vehicle as DL 1RT9240. The accused stated that he had affixed the private number plate on his taxi in order to avoid police check. In this manner, the accused used false number plate. Thereafter, he took the accused alongwith his taxi to the police station and handed over to SI Vijay Singh. The FIR was registered on the same date. 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 accused and both number plates with no.DL8CAW 7416 affixed on back and front side of the vehicle were removed and seized. The State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.2/10 Digitally signed by BHARTI BHARTI GARG Date: GARG 2022.05.18 16:28:01 +0530 taxi was subsequently released to the rightful owner pursuant to the order of Court. The RC of no. DL1RT9240 was verified as genuine from the concerned authority. Upon the culmination of investigation, chargesheet was filed against the accused.
3. Cognizance of the offences under Section 4 (a) of the Act and 482 IPC 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').
4. On the basis of material filed along with the chargesheet, notice of accusation u/S 4 (a) of the Act and u/S 482 IPC was served upon the accused to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR registered on 03.11.2019 under Section 294 of Cr. P. C. and consequently, ASI Munni was dropped from the list of witnesses and the FIR was marked as Ex.C1 vide court order dated 12.10.2021.
5. In order to prove its case, the prosecution examined three witnesses in all. PW1 HC Baldev Singh, the complainant, stated that he did not remember the exact date of incident, however, on that day, he was deputed at Car Pick Up Zone and at about 02:30 pm, the accused was indulging in touting activities at the Car Pick Up Zone and was trying to instigate the passengers to ply by his taxi on which he had put a private number plate. He apprehended him and took him alongwith taxi to the police station and handed over to SI Vijay Singh. Thereafter, IO recorded his statement Ex.PW1/A, prepared the tehrir and got the present FIR registered. Then IO arrested the accused vide arrest memo Ex.PW1/B and seized the abovesaid taxi vide seizure memo Ex.PW1/C. He also seized the fake number plate vide seizure memo Ex.PW1/D. Thereafter, the accused was released on police bail. The witness correctly identified the accused in court. He also correctly identified the vehicle and fake number plate through State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.3/10 Digitally signed by BHARTI BHARTI GARG Date: GARG 2022.05.18 16:28:11 +0530 photographs Ex.P1 (colly).
6. As PW1 did not support prosecution in respect of certain facts, he was permitted to be crossexamined by Ld. APP. In the crossexamination by Ld. APP, the witness admitted that the day of incident was 03.11.2019 and after registering the case, the IO had taken the photographs of the accused alongwith the vehicle with affixed fake number plate bearing no.DL8CAW7416 and thereafter, took of the said number plate and seized the same separately. He also correctly identified both the fake number plates bearing no. DL8CAW7416 correctly as Ex.P2 (colly). In the crossexamination by accused, PW1 stated that there were public persons present at the spot of incident. He further stated that the entry and exit of vehicle at the Airport was under CCTV surveillance. He admitted that the accused did not force any passenger in his presence and further that he did not enquire the details of those passengers. He stated that no verification of ownership qua the number plates of vehicle was done by the IO in his presence.
7. PW2 ASI Ved Prakash, MHC (M), brought the summoned record i.e. register no.19 and as per the entry no.438 of the said register Ex.PW2/A (OSR), the IO had deposited the seized taxi and number plates bearing no. DL8CAW7416 in the Malkhana.
8. PW3 SI Vijay Singh, the IO, testified as to the investigation conducted by him. After recording the statement of complainant, he prepared the tehrir Ex.PW3/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 taxi and both the number plates. He got the photographs of the vehicle clicked alongwith fake number plate and original number plate. The RC of the vehicle was got verified by him from the concerned authority vide letter Ex.PW3/A1 and as per the report State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.4/10 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2022.05.18
16:28:27
+0530
Ex.P3, it was reported as genuine. He also obtained the valuation report of the vehicle which is Ex.PW3/B and prepared the panchnama report Ex.PW3/C. He correctly identified the accused and fake number plates in Court. In his cross examination, PW3 stated that he did not visit the spot of incident and all the documents regarding investigation of the present case were prepared at Police Station. He stated that he did not get the number plate DL8CAW7416 verified from RTO.
9. 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. He further stated that he had entered into a scuffle with police official on the issue of parking due to which they lodged a false case against him. He further stated that the number plate bearing no.7416 was merely kept in the dickey of vehicle and was not affixed on the car. The accused chose to not lead any defence evidence and hence, the matter was taken up for final arguments.
10. 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. Counsel appearing on behalf of accused has argued for his acquittal on the ground that he has been falsely implicated as 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.
11. Arguments heard. Perused the record. Considered.
12. The provision of Section 4 (a) of the Act prescribes punishment for State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.5/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.18 16:28:41 +0530 touting or commit any malpractice. According to Section 2 (f) of the Act, touting includes enticing, misguiding or coercing the tourists for accommodation, sight seeing etc. If anyone loiters around the airports 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. Furthermore, Section 482 IPC makes punishable the act of using of false property mark.
13. Firstly, as regards the offence under Section 4 (a) of the Act, in the present case, there is only one material witness of the incident i.e. PW1 HC Baldev Singh cited by prosecution to prove that the accused was indulging in touting activities. However, he has merely stated that the accused was trying to intice the passengers to ply by his taxi and nothing more. He has not elaborated as to for what purpose the accused was doing such an act. The deposition of PW1 is conspicuously silent about the basic facts and allegations which are necessary to label the act of accused as one of touting. It is specifically underlined in the provision of Section 4 (a) of the Act that the intention of the accused must be to offer unsolicited services to the tourists. Nonetheless, PW1 has not disclosed if any such service was being attempted by the accused to be provided to the passengers.
14. There is no other evidence, ocular or documentary, to establish the allegations against the accused. Admittedly, no independent public witnesses have been joined in the investigation which further makes the prosecution case dubious. The Court is conscious of the fact that it is not always possible for the police officials to join public witnesses during investigation, nevertheless, it has been held in catena of judgments that each case shall be determined on its own facts and circumstances and the prosecution shall have to provide a reasonable State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.6/10 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2022.05.18
16:28:54
+0530
explanation for not being able to adhere to the procedure laid down in law. Further, while it is also true that the prosecution case cannot be disbelieved merely on the basis that all the witnesses are police officials and that the testimony of police witnesses can be relied upon to convict the accused, however, their evidence needs to be weighed in light of the varied facts and circumstances of each case. 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."
15. However, the testimony of PW1 is not of such sterile quality as would inspire the confidence of this Court without corroboration. Moreover, the IO PW3 SI Vijay Singh has stated in his crossexamination that he never went to the spot of incident for conducting investigation in the present matter. In this manner, there is a major lapse on the part of IO to conduct proper and fair State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.7/10 Digitally signed by BHARTI BHARTI GARG Date: GARG 2022.05.18 16:29:08 +0530 investigation regarding the incident.
16. Furthermore, the evidence on record qua the offence U/s 482 IPC is feeble. It has not come in evidence of either PW1 or PW3 as to how they conclulded that the number plate with no.DL8CAW7416 was fake as the IO has stated that he did not get the said number plate verified from RTO. In this manner, the IO did not make any efforts to ascertain if the said number plate was completely false or belonged to some other vehicle. Moreover, even if the fact that the vehicle in question was found with the number plate DL8CAW7416 and that the accused handed over the RC of no.DL1RT9240 is assumed to be proved, it is not sufficient to infer that the accused was driving the vehicle with false number plate. In any case, the RC of DL1RT9240 is not produced in evidence. Having said that, there is nothing to show that the accused was driving the vehicle with number plate DL8CAW7416 as no averment to that effect has been made by PW1 in his oral testimony and no other evidence has been adduced to prove the same. Further, there is no corroborative evidence in the form of CCTV footage as well despite the entry and exit of vehicles being under CCTV surveillance.
17. Apart from this, the perusal of photographs Ex.P1 (colly) reflects that in one of the photographs the vehicle has number plate of DL8CAW7416 and in another photograph, the vehicle has number plate of DL1RT9240 affixed thereon. In such an event, it is not clear as to how the number plate of DL1RT9240 came to be affixed on the vehicle if the accused was found to be driving the vehicle with no.DL8CAW7416. Besides, none of the witnesses have disclosed from where the number plate of DL1RT9240 was retrieved by them. The only documents on record are the photographs of the vehicle with both the number plates i.e. DL1RT9240 and DL8CAW7416. Merely this does not indicate State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.8/10 Digitally signed by BHARTI BHARTI GARG Date: GARG 2022.05.18 16:29:21 +0530 that the accused had used the false number plate.
18. Apparently, the entire case has been framed at the police station itself. Again, no public witnesses have joined during seizure proceedings of the allged fake number plates. Under Section 100 (4) of Cr. P. C., a duty is cast upon the police official conducting search from any person to call upon independent witnesses to join the investigation. Although it is true that such procedure is not always possible to follow because of the reluctance shown by the public witnesses to join police investigation, nevertheless, it has been held in catena of judgments that each case shall be determined on its own facts and circumstances. At this juncture, reliance can be placed on the judgment of Hon'ble Supreme Court in the case of State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 wherein it was held as herein under:
"7. It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
19. In the instant case, the IO never visited the spot of incident in the first place, let alone providing any reasonable explanation for not joining the public State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.9/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.18 16:29:45 +0530 witnesses. The police witnesses in the present case do not appear to be trustworthy and there are glaring loopholes in their statements which give rise to reasonable doubts as regards the culpability alleged against the accused. The possibility of the defence raised by the accused that the number plate bearing no.DL8CAW7416 was merely kept in the dickey of vehicle and that the false case was lodged by police as there was a scuffle between him and the police official cannot be ruled out. There is no other evidence on record which would substantiate the case of prosecution that the accused had indulged in touting activities or used a false property mark, entitling the accused to benefit of doubt.
20. The upshot of the foregoing discussion is that the prosecution has failed to establish the charges of Section 4 (a), The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010 and Section 482 IPC against the accused beyond all reasonable doubts. Resultantly, the accused Rajesh Singh S/o Sh. Balbir Singh R/o 15/250, Kalyanpuri East, New Delhi is hereby acquitted for the offences punishable under Section 4(a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010, and under Section 482 of Indian Penal Code, 1860. Digitally signed by BHARTI BHARTI GARG Pronounced in open court in the presence GARG Date:
2022.05.18 16:29:52 +0530 of accused on 18.05.2022.
(Bharti Garg) MM09/South West District Dwarka Court/New Delhi/18.05.2022 It is certified that this judgment contains ten pages and each page has been signed by the undersigned. BHARTI Digitally signed by BHARTI GARG GARG Date: 2022.05.18 16:29:59 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/18.05.2022 State Vs. Rajesh Singh CNR no. DLSW020018222020 Page no.10/10