Rahul vs State Of Kerala
2023 Latest Caselaw 1949 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE V.G.ARUN
 FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                    CRL.MC NO. 9401 OF 2022
  AGAINST THE ORDER/JUDGMENT IN SC 781/2021 OF      SESSIONS
                     COURT -IV, THRISSUR
PETITIONER/S:

            RAHUL
            AGED 27 YEARS
            S/O PRAHLADAN, PATHALIL VEEDU, MALAYAVAYAL
            DESOM, PALLIMON, KOTTARAKKARA, KOLLAM DISTRICT,
            PIN - 691506
            BY ADVS.
            P.MOHAMED SABAH
            LIBIN STANLEY
            SAIPOOJA
            SADIK ISMAYIL
            R.GAYATHRI
            M.MAHIN HAMZA

RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
            KERALA, ERNAKULAM, PIN - 682031
    2       STATION HOUSE OFFICER
            KODAKARA POLICE STATION, THRISSUR DISTRICT, PIN
            - 680684
            BY ADV PUBLIC PROSECUTOR

OTHER PRESENT:

            GP M.C.ASHI


        THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.02.2023, THE COURT ON 03.02.2023 PASSED THE FOLLOWING:
 Crl.M.C.No.9401 of 2022

                                      -2-



                                 ORDER

Dated this the 03rd day of February, 2023

The petitioner is the 3rd accused in S.C. No.

781 of 2021 pending on the files of the

Additional Sessions Judge-IV, Thrissur. The case

originated from a crime registered by the

Kodakara Police Station against the petitioner

and two others alleging commission of offences

under Section 20(b)(ii)C, 25 and 29 of the

Narcotic Drugs and Psychotropic Substances Act,

1985. The prosecution case is that, during

patrol duty, the police apprehended the accused

at about 10.40 a.m. on 28.06.2021 while they

were travelling in an Toyota Innova Car from

Nellayi to Chalakudy side. On searching the

vehicle, 85.200 kgs. of dried ganja was found

out and recovered.

2. The trial of the sessions case has Crl.M.C.No.9401 of 2022

commenced and has reached the defence evidence

stage. Thereupon petitioner filed Annexure 4

petition under Section 233 Cr.P.C. seeking to

summon the call data records of the investigating

officer, (PW 21), so as to ascertain the tower

location of his mobile phones on 27.06.2021 and

28.06.2021. The other documents, of which

production was sought, are the GD maintained at

the police station from 27.06.2021 to 29.06.2021,

Duty Note Book of certain officers and constables

and the Thondi Register of 28.06.2021 and

29.06.2021. By Annexure 5 order, the learned

Sessions Judge allowed the petition in part by

directing the SHO, Kodakara Police Station to

produce GD from the date 27.06.2021 to

29.06.2021, Duty Note Book and Thondi Register

dated 28.06.2021 and 29.06.2021. The prayer for

production of documents containing the call log

and tower location of the investigating officer

was rejected on the premise that the incident Crl.M.C.No.9401 of 2022

having occurred in the month of June, 2021, the

tower locations and call log would not be

available with the telecom operators. The

court also held that, furnishing of such details

may lead to disclosure of the identity of the

informants of the crime. Aggrieved by the

rejection, this Crl.M.C. is filed.

3. Adv.Saipooja, appearing for the

petitioner, contended that the specific defence

put up by the petitioner is that the accused were

falsely implicated due to the animosity of the

investigating officer, based on an incident that

had occurred at Ukkadom near Coimbatore on

27.06.2021 when the car in which the accused were

travelling nearly collided with the vehicle in

which the investigating officer and others were

travelling. The incident had occurred due to the

mistake of the driver of the vehicle in which the

investigating officer was travelling. Hence, the

petitioner and others abused that driver using Crl.M.C.No.9401 of 2022

filthy language This resulted in the passengers

alighting and verbally abusing and attempting to

assault each other. At that point, the

investigating officer revealed his identity and

forcibly took the petitioner and others into

custody and later foisted the crime on them. In

order to prove that the investigating officer and

the petitioner had been within the same tower

location near Coimbatore, it is essential to

produce and mark the tower location details of

the investigating officers' mobile phones. This

crucial piece of evidence is being shut out by

rejecting the prayer in that regard. Reliance is

placed on the Apex Court decision in Sureshkumar

v Union of India [2014 SCC OnLine SC 1833],

wherein, it is held that the prayer for summoning

of call details for the purpose of determining

the exact location of the officers concerned

cannot be denied. Following the decision in Crl.M.C.No.9401 of 2022

Sureshkumar, a Division Bench of this Court also

issued similar direction in Gokul Raj v. State of

Kerala [2021(4) KLT OnLine 1176].

4. Adv.Ashi, learned Public Prosecutor

stoutly opposed the prayer for production of call

details contending that furnishing of such

details, will compromise the identity of the

informant in the case and also reveal other

secret information. It is contended that a

general suggestion during cross-examination of

the investigating officer cannot be the basis for

seeking production of documents.

5. Although I find merit in the contention

of the Public Prosecutor that, rather than

setting up any concrete defence, what was done

during the cross-examination of the investigating

officer was to put a general suggestion regarding

an alleged scuffle between the petitioner and the

investigating officer at Coimbatore. Even if so, Crl.M.C.No.9401 of 2022

I am bound to allow the prayer for production of

the tower location details in view of the

decision in Sureshkumar, the relevant portion of

which is extracted hereunder;

"8. All that we are concerned with is whether call details which the appellant is demanding can be denied to him on the ground that such details are likely to prejudice the case of the prosecution by exposing their activities in relation to similar other cases and individuals. It is not however in dispute that the call details are being summoned only for purposes of determining the exact location of the officers concerned at the time of the alleged arrest of the appellant from Yashica Palace hotel near the bus stand.

Ms. Makhija made a candid concession that any other information contained in the call details will be of no use to the appellant and that the appellant would not insist upon disclosure of such information. That in our opinion simplifies the matter inasmuch as while the call details demanded by the appellant can be summoned in terms of Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the location of officers 8 Crl.M.C.No.9401 of 2022

concerned need not contain other information concerning such calls received or made from the telephone numbers concerned. In other words if the mobile telephone numbers called or details of the callers are blacked out of the information summoned from the companies concerned it will protect the respondent against any possible prejudice in terms of exposure of sources of information available to the Bureau. Interest of justice would in our opinion be sufficiently served if we direct the Trial Court to summon from the Companies concerned call details of Sim telephone No. 9039520407 and 7415593902 of Tata Docomo company and in regard to Sim No. 9165077714 of Airtel company for the period 24.02.2013 between 4.30 to 8.30 p.m. We further direct that calling numbers and the numbers called from the said mobile phone shall be blacked out by the companies while furnishing such details."

6. The Division Bench in Gokul Raj also

directed production of the tower details, despite

being of opinion that it would be a futile

exercise, since there is no mandate that an

officer having subscribed to a mobile number Crl.M.C.No.9401 of 2022

carries the number wherever he goes. Although the

petitioner has sought production of tower

location details of the mobile numbers

9497962523, 9846808693 and 9846805517, there is

no requirement of producing the tower location

details of mobile number 9846805517, since the

investigating officer has stated that the said

number does not belong to him. I also make it

clear that, while seeking the production of tower

location details of the other two numbers, the

telecom service provider shall be directed to

black out/mask all other details. Accordingly,

the Crl.M.C is allowed as under;

(i) The impugned order to the extent it

rejected the prayer for summoning the tower

location details of mobile numbers; 9497962533

and 9846808693, is quashed.

(ii) The court below is directed to

summon the tower location details of mobile

numbers; 9497962523 and 9846808693 from Crl.M.C.No.9401 of 2022

27.06.2021 to 28.06.2021.

(ii) While producing the details, the

Airtel Company shall be directed to black out the

call details and produce only the tower location

details.

Sd/-

V.G.ARUN JUDGE Scl/ Crl.M.C.No.9401 of 2022

APPENDIX OF CRL.MC 9401/2022

PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE FINAL REPORT IN CRIME NO. 278/2021 OF KODAKARA POLICE STATION Annexure 2 TRUE COPY OF THE STATEMENT FILED BY THE ACCUSED NO.1 IN THE CRIME BEFORE THE COURT BELOW UNDER SECTION 313(5) OF CRPC Annexure 3 TRUE COPY OF THE DEPOSITION OF PW21 IN S C. NO. 781 OF 2021 Annexure 4 TRUE COPY OF THE PETITION FILED BY THE PETITIONER HEREIN BEFORE THE ADDITIONAL SESSIONS JUDGE-IV, THRISSUR Annexure 5 TRUE COPY OF THE ORDER DATED 11.11.2022 IN CRL.M.P NO. 3311/2022 IN SC NO. 781/2021 PASSED BY THE ADDITIONAL SESSIONS JUDGE-IV, THRISSUR