Delhi District Court
State ...........Prosecution vs . on 21 December, 2021
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09, SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 15/20
PS Domestic Airport
Under Section 4 (a) DPT MT Act
Cr. Case no. 3682/2020
CNR no. DLSW020202712020
IN THE MATTER OF:
State ...........Prosecution
Vs.
Jagdish Mahto
S/o Sh. Ganga Bhisnu Mehto
R/o C500, Bhart Vihar, JJ Colony,
Kakrola, Delhi. .............Accused
1. Name of complainant : HC Balbir Singh
2. Name of accused : Jagdish Mahto
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 : 01.02.2020
6. Date of institution of case : 24.08.2020
7. Date of reserving judgment : 18.12.2021
8. Date of pronouncement : 21.12.2021
9. Final judgment : Convicted.
State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.1/8
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 on 01.02.2020 the complainant HC Balbir Singh was on antitouting duty at Ola Parking, Domestic Airport from 07:00 pm to 08:00 am. On the said day at around 09:35 pm, he witnessed that one person was inducing the passengers coming out of the Arrival Hall on the pretext of providing them with cheap taxi services and hotels at discounted rates in Delhi and was also pointing the passengers towards his taxi bearing no. DL1RT4973. He was instructed not to indulge in touting as the passengers were getting annoyed 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 Jagdish Mahto S/o Sh. Ganga Bhisnu Mehto. Thereafter, he gave telephonic information at the police station and the IO came to the spot. 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 the accused was also 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.
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 State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.2/8 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 registered on 01.02.2020 under Section 294 of Cr. P. C. and consequently, PW HC Ram Kumar was dropped from the list of witnesses and the FIR was marked as Ex.C1 vide court order dated 08.09.2021.
5. In order to prove its case, the prosecution examined three witnesses. PW1 HC Balbir Singh, the complainant, stated that on 01.02.2020, he was on antitouting duty at Ola Parking, Domestic Airport from 07:00 pm to 08:00 am. On the said day at around 09:35 pm, he witnessed that one person was inducing the passengers coming out of the Arrival Hall on the pretext of providing them with cheap taxi services and hotels at discounted rates in Delhi and was also pointing the passengers towards his taxi bearing no.DL1RT4973. He was instructed not to indulge in touting as the passengers were getting annoyed 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 Jagdish Mahto S/o Sh. Ganga Bhisnu Mehto. Thereafter, he informed at the police station and got his statement recorded which is Ex. PW1/A. Thereafter, the FIR was registered which is Ex. C1. Then, the IO arrested the accused vide arrest memo Ex.PW1/B and seized his taxi vide seizure memo Ex.PW1/C. The accused was released on police bail. He correctly identified the photographs of taxi Ex. P1 (colly). He also correctly identified the accused present in court. In the crossexamination, the witness stated that he had asked the passengers cominng out of the Arrival Hall to give their statement but they all refused. He denied the suggestion that he had called the accused at police station for taking money from him and that he did not apprehend the accused from the spot.
6. PW3 SI Ishwar Singh, the IO, testified as to the investigation State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.3/8 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. He released the taxi in compliance with court order Mark X after preparing superdiginama Mark Y and panchnama Ex. PW3/B. In his crossexamination, he stated that when he reached the spot of incident, the accused was standing there alongwith his taxi and he recorded the statement of complainant and sent him to PS for registration of FIR. He further stated that he did not make the site plan.
7. PW2 ASI Ved Prakash, MHC (M), brought the summoned record i.e. register no.19 and as per the entry no.237 of the said register Ex.PW2/A (OSR), the IO had deposited the seized taxi in the Malkhana.
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 and he is an Uber Cab Driver. He stated that he was sitting in his cab and a person came to him asking him to drop in his cab but he refused as the booking had to be made through Uber App and thereafter, police official came and took him to the PS without any reason. 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 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 State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.4/8 as to the veracity of case.
10. Arguments heard. Perused the record.
11. 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 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.
12. 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 nonexamination 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 State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.5/8 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 during post Independence 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."
State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.6/8
13. In the case at hand, both PW1 HC Balbir Singh and PW3 SI Ishwar Singh have corroborated each other in material facts. PW1 HC Balbir Singh has stated in his examinationinchief that he requested the public persons present at the spot to join investigation but none of them agreed. Their testimonies cannot be doubted solely on the ground that no independent witness came forward to take part in the proceedings. 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.
14. However, in the present case, there isn't sufficient material to rebut the aforesaid presumption. The witnesses have remained unshaken on material facts and nothing substantial could be elicited in the crossexamination of PW1 HC Balbir Singh and PW3 SI Ishwar Singh. The accused has admitted that he was present at the spot and there is no explanation tendered by him as to why he would be falsely implicated. This fact goes on to only reinforce the case of prosecution.
15. Therefore, the court finds the evidence of prosecution witnesses completely reliable. Consequently, it is reflected from the prosecution evidence that the accused was found to be indulged in the act of touting the tourists coming out of Arrival Hall on 01.02.2020, as he was enticing them to provide cheap hotels and taxi services. The offending act of accused is clearly covered State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.7/8 under Section 4 (a) of the Act.
16. In view of the forgoing discussion, it is concluded that the prosecution has succeeded in proving its case beyond reasonable doubts against the accused. Resultantly, the accused Jagdish Mahto S/o Sh. Ganga Bhisnu Mehto R/o C 500, Bharat Vihar, J. J. Colony, Kakrola, New Delhi is hereby convicted for the offence punishable under Section 4(a) of The Delhi Prevention of Touting and Malpractices against Tourist Act, 2010.
17. Let the convict be heard separately on the quantum of sentence.
18. Copy of this judgment be given free of cost to the convict.
Pronounced in open court in the presence of accused on 21.12.2021.
(Bharti Garg) MM09/South West District Dwarka Court/New Delhi/21.12.2021 It is certified that this judgment contains eight pages and each page has been signed by the undersigned.
(Bharti Garg) MM09/South West District Dwarka Court/New Delhi/21.12.2021 State Vs. Jagdish Mahto CNR no. DLSW020202712020 Page no.8/8