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. 01/20
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 1750/2020
CNR no. DLSW020106312020
IN THE MATTER OF:
State ...........Prosecution
Vs.
1. Sanjay Kumar @ Mangla
S/o Sh. J. P. Mehto,
R/o A216, Mangla Puri,
PhaseII, New Delhi
2. Manoj Kumar
S/o Kailash Sahani
R/o RZF2/230, Mahavir Enclave, Gali no.2B,
Palam Colony, New Delhi ...........Accused
1. Name of complainant : Ct. Sanjeet Kumar
2. Name of accused : a) Sanjay Kumar @ Mangla
b) Manoj Kumar
3. Offence complained of : Under Section 4(a), The
Delhi Prevention of Touting
and Malpractices against
Tourist Act, 2010.
State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.1/10
4. Plea of accused : Not guilty
5. Date of commission of offence : 03.01.2020
6. Date of institution of case : 06.03.2020
7. Date of reserving judgment : 04.10.2021
8. Date of pronouncement : 28.10.2021
9. Final judgment : Both accused 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 Ct. Sanjeet Kumar was on duty in the intervening night of 0203.01.2020 at Car Pickup Zone, Domestic Airport. On the said day at around 11:30 pm, he witnessed that two persons were indulging in touting by soliciting the passengers coming out of the Arrival Hall on the pretext of providing them with cheap taxi services and hotels on discounted rates in Delhi and were also pointing the passengers towards their taxi bearing no.DL1RT7711 and DL 1RTC1761. They were instructed not to indulge in touting as the passengers were getting annoyed but they did not desist from their conduct. Thereafter, the complainant Ct. Sanjeet Kumar enquired the said persons who disclosed their names as Sanjay Kumar @ Mangla S/o Sh. J. P. Mahto and Manoj Kumar S/o Sh. Kailash Sahani. 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 persons were arrested and later on, were released on bail. The taxis of the accused persons were also State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.2/10 seized which were subsequently released to the rightful owner pursuant to the order of Court. After the completion of investigation, chargesheet was filed against the accused persons.
3. Cognizance of the offence under Section 4 (a) of the Act was taken against the accused persons and the copy of chargesheet was supplied to them 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 persons to which they pleaded not guilty and claimed trial. The accused persons admitted the genuineness of FIR registered on 03.01.2020 under Section 294 of Cr. P. C. and consequently, PW HC Sukhbir was dropped from the list of witnesses and the FIR was marked as Ex.C1 vide court order dated 05.01.2021.
5. In order to prove its case, the prosecution examined three witnesses. PW3 Ct. Sanjeet Kumar stated that he was on duty in the intervening night of 02/03.01.2020 at Car Pick Up Zone, Domestic Airport. At 11.30 pm, two persons were indulging in touting by soliciting the passengers coming out of the Arrival Hall on the pretext of providing them with cheap taxi services and hotels on discounted rates in Delhi and were also pointing the passengers towards their taxis bearing nos. DL1RT7711 and DLRTC1761. They were instructed not to indulge in touting as the passengers were getting annoyed but they did not desist from their conduct. Thereafter, he apprehended and enquired the said persons who disclosed their names as Sanjay Kumar @ Mangla and Manoj Kumar. He then telephonically informed about the incident at police station and IO came to the spot. The IO recorded his statement Ex.PW1/A, prepared a tehrir and handed over the same to him, he went to the PS and got State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.3/10 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 persons were arrested by IO in his presence vide separate arrest memos Ex.PW1/C and Ex.PW1/D and also seized the taxis vide seizure memo Ex.PW1/E and Ex.PW1/F. Both the accused persons were released on police bail. He correctly identified the photographs of taxis Ex. P1 (colly).
6. In his crossexamination, PW3 Ct. Sanjeet Kumar admitted that there were public persons present at the spot and the spot of incidennt was under
CCTV surveillance. He stated that he did not remember whether any site plan was prepared by the IO or not. He also stated that he does not know whether any complaint box was installed at the spot of incident.
7. PW1 SI Ishwar Singh, the IO, testified as to the investigation conducted by him. Upon the receipt of DD no. 37B on 03.01.2020, he rushed to Car Pickup Zone, Domestic Airport where he met the complainant along with both accused persons. He recorded the statement of complainant and prepared a tehrir Ex. PW1/B. During investigation, he arrested the accused persons, seized their taxi and later on, released them on police bail. He released the taxi in compliance with court order on superdarinama Ex. PW1/F1 and Ex.PW1/F2 after preparing panchnama Ex.PW1/G and Ex.PW1/H. In the cross examination, he deposed that he enquired some public persons about the incident, but none of them was willing to join the investigation and left the spot without disclosing their names and addresses.
8. PW2 HC Pritam Kumar MHC (M), brought the summoned record i.e. register no.19 and as per the entry no.222 of the said register Ex.PW2/A (OSR), the IO had deposited the taxi in the Malkhana. The said witness was not crossexamined by the accused despite opportunity given to them.
State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.4/10
9. Thereafter, the prosecution evidence was closed and statements of accused persons were recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against them in the evidence were put to the accused persons. The accused persons denied all the allegations and stated that they have been falsely implicated in the present case and they were merely standing at the spot when the police officer came and asked them to drop at the police station. They dropped him accordingly at the police station but they filed a false case against them. The accused persons further stated that they did not wish to 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 persons 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 time of arrest is omitted in the arrest memos and also that no site plan was prepared. He has further contended that the accused persons have been falsely implicated as there was no complaint against them 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.
11. Arguments heard. Perused the record.
12. 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. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 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.
13. 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 State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.6/10 during postIndependence years but it is time now to start placing 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."
14. In the case at hand, both PW1 SI Ishwar Singh and PW3 Ct. Sanjeet Kumar have corroborated each other in material facts and have clarified in their crossexamination that none of the passengers were 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 or that no State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.7/10 complaint was put in the complaint box against the accused persons. 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.
15. However, in the present case, there isn't sufficient material to rebut the aforesaid presumption. The infirmities highlighted by the Ld. Counsel for accused in the conduct of investigation as to omission of time of arrest in the arrest memo and absence of 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 State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.8/10 designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the 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."
16. 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 Ishwar Singh and PW2 Ct. Sanjeet Kumar. Moreover, the accused persons have admitted their presence at the spot of incident and there is no explanation as to why the police officials would file a false case against them.
17. Consequently, it is reflected from the prosecution evidence that the accused persons were found to be indulged in the act of touting the tourists coming out of the arrival at the airport on 02.01.2020 at about 11:30 pm, as they 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.
18. In view of the forgoing discussion, it is concluded that the prosecution has succeeded in proving its case beyond reasonable doubts against the accused persons. Resultantly, the accused persons Sanjay Kumar @ Mangla S/o Sh. J. P. Mehto R/o A216, Mangla Puri, PhaseII, New Delhi and Manoj State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.9/10 Kumar S/o Kailash Sahani R/o RZF2/230, Mahavir Enclave, Gali no.2B, Palam Colony, New Delhi are hereby convicted for the offence punishable under Section 4(a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
19. Let the convicts be heard separately on the quantum of sentence.
20. Copy of this judgment be given free of cost to the convicts.
Pronounced in open court in the presence Digitally signed
by BHARTI
of accused persons on 28.10.2021. BHARTI GARG
GARG Date:
2021.10.28
15:06:32 +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 15:06:40 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/28.10.2021 State Vs. Sanjay Kumar @ Mangla & Anr. CNR no. DLSW020106312020 Page no.10/10