Delhi District Court
State ...........Prosecution vs . on 27 April, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09, SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 37/22
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 397/23
CNR no. DLSW020015152023
IN THE MATTER OF:
State ...........Prosecution
Vs.
Washeed Khan
S/o Muneer Khan
R/o R4/60A, East Mehram Nagar,
Delhi Cantt., Delhi. .............Accused
1. Name of complainant : ASI Harkishan
2. Name of accused : Washeed Khan
3. Offence complained of : Under Section 4(a), The
Delhi Prevention of Touting
and Malpractices against
Tourist Act, 2010.
4. Plea of accused : Not guilty
5. Date of commission of offence : 09.08.2022
6. Date of institution of case : 11.01.2023
7. Date of reserving judgment : 27.04.2023
8. Date of pronouncement : 27.04.2023
9. Final judgment : Acquitted
State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.1/10
Digitally signed
by BHARTI
BHARTI GARG
Date:
GARG 2023.04.27
JUDGMENT:
1. The present case pertains to prosecution of accused 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 ASI Harkishan was on duty in the intervening night of 09/10.08.2022 from 06:00 pm to 06:00 am at Terminal1D Departure, Domestic Airport. At about 09:30 pm, he saw one person was inducing the passengers present there on the pretext of providing them with cheap taxi services and hotels at discounted rates in Delhi and was also pointing them towards his taxi bearing registration no.DL9CAY5229 (hereinafter, 'offending vehicle'). 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 Washeed Khan S/o Muneer Khan. Thereafter, he took the accused along with the offending vehicle to the police station and the FIR was registered. Investigation was conducted by the IO wherein statements of witnesses under Section 161 Cr. P. C. were recorded, the accused was arrested and later, released on bail. The offending vehicle was seized which was subsequently released to the rightful owner pursuant to the order of Court. Upon the culmination of investigation, chargesheet was filed against the accused.
State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.2/10 Digitally signed by BHARTI BHARTI GARG GARG Date: 2023.04.27 15:06:49 +0530
3. Cognizance of the offence under Section 4 (a) of the Act 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 was served upon the accused to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR no.37/2022 dated 10.08.2022 alongwith certificate u/S 65B of IEA as Ex.A1(colly), entry in the register of malkhana vide serial no.263 as Ex.A2 and DD no.1A dated 10.08.2022 as Ex.A3, under Section 294 of Cr. P. C.
5. In order to prove its case, the prosecution examined two witnesses in all. PW2 SI Harkishan (complainant) deposed in consonance with the prosecution story and tendered his complaint as Ex.PW2/A. He correctly identified the acucsed present in the court and the offending vehicle through photographs Ex.P1 (colly). In his crossexamination, he admitted that he did not record the name of any passenger although there were many passengers at the spot. He further admitted that there were CCTV cameras at the spot of incident but the IO did not obtain any such camera.
6. PW1 SI Meenu Bhan (IO) testified as to the investigation conducted by her. She stated that after the complainant brought the accused to police station, she recorded State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.3/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.27 his statement and prepared tehrir Ex.PW1/A, after which the FIR was registered. Thereafter, she seized the offending vehicle vide seizure memo Ex.PW1/B and arrested the accused vide arrest memo Ex.PW1/C. The accused was later released on police bail and the offending vehicle was submitted at malkhana. The vehicle was released on superdari pursuant to the order of Court qua which she prepared panchnama report Ex.PW1/D. In her crossexamination, PW1 stated that all the documents were prepared at police station and she never visited the spot of incident.
7. On account of the admission made by accused under Section 294 Cr.P.C qua the genuineness of FIR no.37/2022 dated 10.08.2022 alongwith certificate u/S 65B of IEA as Ex.A1(colly), entry in the register of malkhana vide serial no.263 as Ex.A2 and DD no.1A dated 10.08.2022 as Ex.A3, PW HC Sunita was dropped from the list of prosecution witnesses and formal proof of these documents was dispensed with.
8. 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. The accused further stated that he did not wish to lead any defence evidence and hence, the matter was taken up for final arguments.
9. It is argued by the Ld. APP for State that the State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.4/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.27 prosecution has been able to establish the case against accused beyond reasonable doubts as the testimony of both 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 since the IO never visited the spot of incident and there is also no public witness to testify as to the veracity of case.
10. Arguments heard. Perused the record.
11. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
12. Before delving into merits, it is pertinent to give a brief outline of the offence alleged against the accused.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 State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.5/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.27 15:07:16 +0530 airports, as in the present case, 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.
13. In the present case, there is only one material witness of the incident i.e. PW2 ASI Harkishan as he stated that he had witnessed the accused indulging in touting activities. However, in his crossexamination, he stated that he did not enquire any passenger regarding the incident. Pertinently, the offence of touting is related to the act of accused visavis the other persons who are either passengers or tourists. The fact that the complainant did not enquire any passenger and straightaway concluded on his own that the accused was committing touting raises a cloud of doubt over his veracity. This is particularly so as the complainant did not even state the exact or the gist of the words used by the accused while he was allegedly indulging in touting. This factor renders the testimony of the complainant himself unreliable.
14. Furthermore, PW1/IO stated in her crossexamination that she did not visit the spot of incident and also did not conduct any other investigation after the registration of FIR. No effort was made by her as well to search for any public witness. Both the witnesses in the present case are police officials. Further, it is not explained as to why the CCTV footage was not obtained despite being available.
State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.6/10
Digitally
signed by
BHARTI BHARTI GARG
Date:
GARG 2023.04.27
15. 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 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."
State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.7/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.27
16. Apparently, the entire case seems to have been framed at the police station itself. 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 and the prosecution shall have to provide a reasonable explanation for not being able to adhere to the procedure laid down in law. 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."
State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.8/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.27 15:07:42 +0530
17. In the instant case, the IO never visited the spot of incident in the first place, let alone providing any reasonable explanation. Not only is there a major lapse on the part of IO to conduct proper and fair investigation regarding the incident, but the testimony of the primary witness i.e. the complainant does not inspire the confidence of this court. No independent public witness has been joined in the investigation which further makes the prosecution case dubious. Moreover, there is no DD entry of the departure or arrival/ patrolling duty of complainant ASI Harkishan on record. Therefore, the evidence of independent witnesses was necessary to provide corroboration to the prosecution story. The investigation appears to be faulty and incomplete. The aforesaid loopholes highlighted by the Court are sufficient to discredit the proseuction case.
18. 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 owing to absence of any inculpatory act on the part of accused amounting to the act of touting, which is the pre requisite to convict a person under that provision. The basic ingredients of the offence have not been proved by prosecution so as to attract the offence in question in the instant case. The inescapable conclusion is that the accused is entitled to benefit of doubt.
19. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.9/10 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.27 accused Washeed Khan S/o Muneer Khan R/o R4/60A, East Mehram Nagar, Delhi Cantt., Delhi, is hereby acquitted of the offence punishable under Section 4 (a), The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
Pronounced in open court in the presence of accused on 27.04.2023. Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.04.27 15:07:59 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/27.04.2023 It is certified that this judgment contains ten pages and each page has been signed by the undersigned.Digitally signed
BHARTI by BHARTI GARG GARG Date: 2023.04.27 15:08:06 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/27.04.2023 State Vs. Washeed Khan CNR no. DLSW020015152023 Page no.10/10