Delhi District Court
State vs Sushma) on 3 January, 2023
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDL. SESSIONS JUDGE (SFTC) :
DWARKA COURTS : NEW DELHI
CNR No: DLSW010124642022
CA No: 441/2022
U/s: 28/112 Delhi Police Act
PS: Dwarka South
(In Ct. Cases 2392 of 22,
DD No. 150 dated 06.10.2022
State v/s Sushma)
(1) Ms. Sushma Jain
D/o Sh. Mahaveer Prasad Jain
R/o: H.No. 207, 1A,
Bawana Road, Old Meal Mandi,
Narela, New Delhi - 110040
(2) Pankaj Kaushik
C/o Sh. T.C.Kaushik
R/o: Plot No. 20, Kh. No. 44,
Tongapur, Sector - 9,
Dwarka, New Delhi - 110077
....APPELLANT(s)
Versus
State
....RESPONDENT
Date of Institution : 03.12.2022
Judgment reserved on : 03.01.2023
Date of Decision : 03.01.2023
JUDGMENT
1. The present appeal has arisen from the order dated 25.11.2022, passed by the Court of Sh. Paras Dalal, ld. MM - 01 CA No: 176/2021 Page 1 of 6 as Presiding Officer of Evening Court - 01, South West District, Dwarka Courts Complex, New Delhi, in Crl. Case No. 2392/2022, titled as State v/s Sushma, PS Dwarka South, which was registered vide DD No. 150 dated 06.10.2022, under Section 28/112 D.P.Act, whereby ld. MM had convicted and sentenced the appellant to pay a fine of Rs. 50/ and had also directed SHO, PS Dwarka South to seal the commercial establishment which was stated to be running without a license.
The present challan was disposed of as summary trial matter after explanation of accusation to appellants and after his pleading guilty to the charge.
2. Feeling aggrieved by the said order, the appellants herein have challenged the legality of sentence on the following amongst other grounds :
(i) That the ld. MM while deciding the kalandra had acted arbitrarily without hearing the rightful owner of property as well as license holder and had convicted the staff without perusing any authority letter or appointment letter and had disposed of the kalandra without affording an opportunity of hearing to the affected persons.
(ii) It was stated further that as per Section 112 of the D.P.Act, penalty was provided for not obtaining the license in CA No: 176/2021 Page 2 of 6 respect of place of public entertainment or a certificate of registration in respect of eating house or for not renewing such license or certificate within prescribed period. With regard to the property in question, it did not fall in any of the above mentioned categories as neither of the activities as described in the section were carried out there.
(iii) Ld. MM had also failed to provide any legal assistance to the convict, as neither the counsel was available to represent them, nor, any legal aid counsel facility was provided in the Evening courts.
(iv) Ld. MM had also committed error while not issuing any show cause notice to the affected parties because they were having B & B license duly issued by the Department of Tourism, Government of NCT of Delhi and were working as per the terms and conditions of the said license.
(v) Ld. MM had also specifically mentioned in the order that no photographic or videographic proof or any other proof was filed by Investigating Agency to substantiate its allegations which was against the principles of natural justice.
However, this is not a correct statement as per record.
CA No: 176/2021 Page 3 of 6(vi) It was also pleaded lastly that the person who had appeared before the Evening Court was not duly authorized and competent on behalf of appellants to plead guilty and thus the appellants were well within their right to run the establishment under Section 15 of Bed and Breakfast Establishments (Registration and Regulation) Act 2007, issued to them by Govt. of NCT of Delhi. Therefore, the impugned sentence as awarded was liable to be set aside.
3. I have heard Sh. Aditya Kumar, ld. Addl. PP for State and Sh. Prashant Yadav, ld. Counsel appearing for appellants and have also examined the provisions of the National Capital Territory (Incredible India) Bed and Breakfast Establishments (Registration and Regulation) Act, 2007. I have also examined the trial court record.
4. As per the kalandra filed before the ld. Evening Court, it was mentioned by complainant HC Lokender Singh that when he had reached Sector - 9, Dwarka, during his patrolling at about 6:00pm, he had seen one Hotel Mint Residency, Plot No. 20, Village Toganpur, Sector - 9, Dwarka, New Delhi, in which a reception counter was there and a lady (who is appellant no. 1 herein) was also found sitting and she had declared herself to be the owner of hotel, who was running the same. Since she had failed to produce any license to run the hotel and had produced the license under Bread and Breakfast Act, in her favour, thus by CA No: 176/2021 Page 4 of 6 making a reception counter, she had violated the provisions of the said Act and thus she was challaned under Section 28/112 D.P.Act.
5. I have examined the definition of "Establishment" as provided under Section 2(h) of the National Capital Territory (Incredible India) Bed and Breakfast Establishments (Registration and Regulation) Act, 2007, as well as I have also gone through the provision of Section 15 of the said Act which specifically provides that no license from MCD or under Sarais Act or NDMC or police was required to be obtained by the person for running the Bed and Breakfast establishment, to whom the license to run the said activity was issued under the said Act and being a Special Act, it has to prevail upon the other General Acts.
Moreover, nowhere in the definition of the establishment, it has been provided in the said Act that a reception cannot be made by the person providing bed and breakfast to his/ her guest.
Furthermore, I have no hesitation in holding that under Section 28/112 D.P.Act, while convicting a person, the Court has the power to direct him to close the establishment unless the requisite license to run the same is obtained by the said person. However, without issuance of any such direction of CA No: 176/2021 Page 5 of 6 closure, it could not be held to be legal and justifiable on the part of ld. Magistrate to straightaway order sealing of the premises.
6. In view of this fact, I am convinced that sentence awarded by ld. MM was not justifiable at all so far as it pertained to issuance of sealing direction to concerned SHO PS Dwarka South.
7. Accordingly, while upholding the conviction of appellants in the present case, the direction for sealing of premises issued by ld. MM, in the impugned order is hereby set aside and the establishment is directed to be opened and de sealing of the premises to be carried out by the concerned police authorities.
8. With these observations, the appeal filed by the appellant is partly allowed. Copy of this judgment along with trial court record be sent to the ld. Trial Court for information and compliance.
9. Appeal file be consigned to record room after compliance of necessary legal formalities.
ANNOUNCED IN THE OPEN COURT
DATED: 03.01.2023
LOKESH Digitally signed by
LOKESH KUMAR SHARMA
KUMAR Date: 2023.01.04 12:21:04
SHARMA +0530
(LOKESH KUMAR SHARMA)
ADDL. SESSIONS JUDGE (SFTC)
DWARKA COURTS : NEW DELHI
CA No: 176/2021 Page 6 of 6