Rajasthan High Court - Jodhpur
Gopal Krishan @ Gopi vs State Of Rajasthan on 25 August, 2022
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 5243/2022
Gopal Krishan @ Gopi S/o Sh. Naurang Lal, Aged About 29
Years, W.no. 19, Ramesh Colony, Behind District Hospital,
Sriganganagar.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. S.R. Godara
For Respondent(s) : Mr. S.K. Bhati, PP
JUSTICE DINESH MEHTA
Order
25/08/2022
1. The petitioner has approached this Court invoking inherent
jurisdiction of this Court conferred by Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'the Code')
oppugning the order dated 06.08.2022 passed by learned
Additional Sessions Judge, Raisinghnagar, Sriganganagar
(hereinafter referred to as 'the trial Court') whereby his
application under Section 91 of the Code has been rejected.
2. The facts appertain are that a charge-sheet has been filed
against the petitioner for offences under Sections 8/22 and 25 of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as 'the NDPS Act'), on the accusation that
contraband substances were recovered from petitioner's
possession.
3. Mr. Godara, learned counsel for the petitioner contended
that the petitioner has been wrongly enroped in the case of the
(2 of 4) [CRLMP-5243/2022]
NDPS Act and despite the seizure officer not being present at the
scene, the recovery has been stage managed vindictively by police
personnel while sitting at the police station itself.
4. In order to support his stand/alibi, the petitioner moved an
application under Section 91 of the Code and prayed that mobile
location and call-details record of Imran Khan, ASI, P.S.
Gajesinghpur, for the time of seizure, i.e., 5:00 p.m. on
29.08.2021 be collected.
5. Petitioner's aforesaid application came to be rejected by the
learned trial Court vide order dated 06.08.2022, inter-alia
observing that the applicant has not presented any supporting
evidence to establish that the seizure officer was not present at
the place of recovery and in absence of any supporting material,
his application deserves to be rejected.
6. Mr. Godara, learned counsel for the petitioner, argued that
the trial Court has rejected petitioner's application on untenable
grounds. He argued that it is the specific plea of the petitioner
that seizure officer, namely, Imran Khan was present at the police
station at the time of seizure and a false recovery has been shown
from the petitioner.
7. Learned counsel argued that if the call details and mobile
location are not obtained at this point of time, the concerned
mobile company would destroy or erase the record, as mobile
companies are not supposed to save/preserve call-details/call
location beyond the period of two years.
8. Mr. Godara, learned counsel for the petitioner, in support of
his argument, relied upon the judgment dated 18.02.2020
rendered by a Coordinate Bench of this Court in S.B. Cr.L.M.P.
No.273/2020 : Swarn Singh @ Baba Vs. State of Raj. He fairly
(3 of 4) [CRLMP-5243/2022]
conceded that true it is, the effect and operation of the order
aforesaid has been stayed by Hon'ble the Supreme Court, but
then, the decision of the matter by Hon'ble the Supreme Court
may take some time and in case the order of this Court is upheld,
it would cause grave miscarriage of justice as after expiry of two
years, the mobile company would erase the relevant data from its
electronic record and the possibility of recovery of call-detail
record and mobile location would be minimal after expiry of two
years.
9. Mr. Bhati, learned Public Prosecutor, on the other hand,
submitted that obtaining call details of the police personnel would
not only be an intrusion in their privacy but is likely to divulge
particulars of the informant and other information, which must not
to be disclosed in public interest.
10. Heard learned counsel for the parties.
11. In the opinion of this Court, the reasons given by the trial
Court are irrelevant and the ground untenable. The petitioner, at
the best, can assert that the seizure officer was sitting at the
police station and not available at the place of recovery, he cannot
bring any documentary evidence. It was unreasonable of the trial
Court to reject his application on the ground of lack of supporting
evidence; it can either be proved by oral evidence or by the call
location/ details, which details he had asked for.
12. This Court finds substance in what has been argued on
behalf of the petitioner that after passing of two years, even if call
details and mobile location are deemed necessary and order of
this Court in Swarn Singh (supra) is affirmed, it would be
impossible to retrieve such details as no mobile company is
obligated to preserve the record beyond a period of two years. In
(4 of 4) [CRLMP-5243/2022]
such a situation, the petitioner's valuable right to defend would be
practically taken away.
13. The present petition is, thus, allowed. The impugned order
dated 06.08.2022 is quashed and set aside and petitioner's
application under Section 91 of the Code is allowed as prayed.
14. The trial Court is directed to issue requisite notice to the
concerned mobile company to provide call-details and mobile
location of Imran Khan, ASI, P.S. Gajesinghpur for 29.08.2021 at
5:00 p.m. and keep the same with itself.
15. The trial Court shall consider petitioner's defence in light of
the mobile call details and location so obtained from the mobile
company. The copy of such details will be given to the petitioner
only if the SHO concerned does not oppose such request.
16. Stay petition also stands disposed of accordingly.
(DINESH MEHTA),J
228-skm/-
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