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Delhi District Court

State vs . Dev Singh on 21 January, 2023

      IN THE COURT OF Ms. AKANKSHA GARG, MM­03: SE/
                  SAKET COURT, NEW DELHI
FIR NO.118/2019
PS ­ H.N.Din
U/s 4(a) of Delhi Prevention of Touting and Mal Practices against Tourists
Act 2010
State Vs. Dev Singh
                                JUDGMENT

A.    SL. NO. OF THE CASE             :    2115/2019
B.    DATE OF INSTITUTION             :    04.07.2019
C.    DATE OF OFFENCE                 :    16.05.2019
D.    NAME OF THE                     :    ASI Laxmi Narain
      COMPLAINANT
E.    NAME OF THE ACCUSED             :(1) Dev Singh
                                           S/o Sh. Kallu Singh
                                           R/o H.No.506/C, Gali no.12,
                                           Om Nagar, Mithapur, Ext.New
                                           Delhi.
F. OFFENCE COMPLAINED OF              :    U/s 4(a) of Delhi Prevention of
                                           Touting and Mal Practices against Tourists
                                           Act 2010
G.    PLEA OF ACCUSED                 :    Pleaded not guilty
H.      FINAL ORDER                        :            Acquitted
I.      DATE OF FINAL ORDER                :            21.01.2023

BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION

1. In brief, the facts as alleged by the prosecution are that on 16.05.2019, at about 02.40PM, near gate no.1, Humayun Tomb, main Mathura Road within the jurisdiction of PS H.N.Din, New Delhi, accused was found touting tourists on the pretext that they would get the facilities of fooding and lodging at reasonable price for them due to which they were feeling unpleasant and therefore committed an offence punishable u/s 4(a) of Delhi Prevention of Touting and Mal­Practices FIR NO.118/2019 PS-H.N. Din State Vs. Dev Singh Page No. 1/7 against Tourists Act 2010 and within my cognizance.

2. The accused appeared before the court and copy of charge sheet was supplied to him as per section 207 Cr.PC. Accused was served charge u/s 4(a) of Delhi Prevention of Touting and Mal­Practices against Tourists Act 2010 on 08.04.2022 to which accused pleaded not guilty and claimed trial.

EVIDENCE OF THE PROSECUTION

3. The prosecution, in order to prove its case against the accused, in all examined 3 witnesses, whose testimony in brief is as follows:­  PW­1, Ct. Hariom has deposed that on 16.05.2019, ASI Laxmi Narayan received a number of complaints pertaining to tauting by auto drivers at Humayu Tomb from passerbys. At around 2.40PM, they went there and asked the accused to refrain from act of tauting. The accused ignored the said warning and continued the act of tauting. They took the accused persons to the PS. The IO prepared the tehrir and submitted the same to the DO for registration of FIR.

 PW­2, ASI Laxm Narayan has deposed that on 16.05.2019, he was on patrolling duty alongwith Ct. Hariom. At about 2.40PM, they had reached Humayu Tomb at Gate no.,1, main Mathura road, there they saw a man who was touting by stopping tourist and was asking them for booking cheap hotel and vehicle repeatedly. They apprehended the said person who on inquiry revealed his name as Dev Singh S/o Sh Kalu Ram. He alongwith the constable tried to make him understand that he should not do such a thing but he was adamant. They requested public persons to give FIR NO.118/2019 PS-H.N. Din State Vs. Dev Singh Page No. 2/7 a written complaint but they refused to give the same. Due to paucity of time, said public persons could not be served written notice. They left the spot without revealing their names and address. He prepared tehrir which is now Ex PW2/A. IO prepared site plan vide Ex­PW2/B  PW3 SI C. L.Meena has deposed that on 16.05.2019, investigation of the present case was marked to him. He reached the spot i.e Humayu Tomb at Gate no.1, main Mathura road, there he met ASI Laxmi Narayan and accused Dev Singh and prepared the site plan vide Ex PW2/B. He arrested and conducted personal search of accused vide Ex­PW3A and Ex­PW3/B

4. Thereafter, the PE was closed and the matter was listed for recording the statement of accused U/s 313 CrPC wherein accused stated that he is innocent and falsely implicated in the present case. Thereafter, accused did not choose to lead DE. DE was closed.

ARGUMENTS

5. Ld. counsel for accused would argue that the accused were falsely implicated by the police officials. Ld. Counsel for accused further claimed that all prosecution witnesses were fellow police officials and they all are interested witnesses. No independent public person has been made witness for proving the factum of alleged incident. Alleged tourist who were touted has also not been joined. These circumstances create reasonable doubts on the case of the prosecution. Hence, it is prayed, the accused may be given benefit of reasonable doubts and they may be acquitted.

ANALYSIS AND FINDINGS

6. I have heard the rival submissions and careful perused the material available on record. In a criminal case the initial burden is on the prosecution to prove the guilt of the accused beyond reasonable doubts before the accused is asked to prove his defence. It is also settled proposition of law that whenever there are two views possible, the view which favours innocence of the accused is to be accepted by the Court.

7. In the present case, the allegations against the accused are that he indulged in enticing a tourist to provide hotel on cheap rates.

Section 4(a) the Delhi Prevention of Touting and Malpractices against Tourists Act, 2010 (DPT & MAT Act) provides punishment for touting or committing malpractices as defined under Section 2 of the Act.

8. Section 2(d) of the Act provides that malpractice includes dishonesty, cheating, impersonation, and obstruction in allowing free choice for shopping or stay, or travel arrangements. Section 2 (f) of the Act defines touting as including 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.

09. In the present case, as the record would reveal, all the prosecution witnesses are police officials. No independent public witness had joined the investigation at any point of time. All the PWs have stated in their cross examination that there were various public persons present near the spot. Thus, the FIR NO.118/2019 PS-H.N. Din State Vs. Dev Singh Page No. 4/7 place of the alleged incident is clearly shown to be located in an area where public persons were readily available. It is not the case of the prosecution that no public person was present at or near the spot. However, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police.

10. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:­ "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''

11. In the present case, non­joining of any public person as a witness creates doubt on the case of the prosecution.

12. The fact of non­joining public witness is not the only ground to disbelieve the case of the prosecution. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non­ joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt FIR NO.118/2019 PS-H.N. Din State Vs. Dev Singh Page No. 5/7 on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.

13. The present case rests on the alleged incident which was seen by PW­1 & PW­2 when they were on patrolling duty in the area. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:­ "22.49 Matters to be entered in Register No. II " The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. "Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."

14. In the present case, as the record would reveal, since public persons were not joined in the investigation, the departure entry of the aforesaid police officials, who were allegedly on patrolling duty in the area at the relevant time and had apprehended the accused persons, could have been a vital piece of evidence. However, no DD entry record of the patrolling of the witnesses in the area has been proved on record. Hence, the fact of the police official at the spot has come under the clouds of doubt.

15. Moreover, PW­1 Const. Hariom has stated that before apprehending the accused he along with PW2­ ASI Laxmi Narayan received a number of complaints pertaining to tauting by auto drivers, whereas, on the contrary PW2 has stated that he received no such complaint.

16. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined and there is no DD entry of the patrolling of the witnesses in the area at the relevant date and time, are the facts which are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.

17. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offences punishable under Section 4(a) of Delhi Prevention of Touting and Mal Practices against Tourists Act 2010. File be consigned to Record Room. Announced in open Court on 21.01.2023.

(AKANKSHA GARG) Metropolitan Magistrate­03 (South­East), Saket Courts, New Delhi/21.01.2023 FIR NO.118/2019 PS-H.N. Din State Vs. Dev Singh Page No. 7/7