Rajasthan High Court - Jodhpur
Mahesh Kumar vs State Of Rajasthan on 13 October, 2022
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 5493/2022
Mahesh Kumar S/o Sh. Chotu Ram Jat, Aged About 32 Years,
W.no. 1, Dholipal, Hanumangarh Junction P.s., Hanumangarh,
Dist. Hanumangarh.
----Petitioner
Versus
State of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr. B. Ray Bishnoi with Mr. Tanay Jain
For Respondent(s) : Mr. Mool Singh Bhati, PP
JUSTICE DINESH MEHTA
Order
13/10/2022
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 07.06.2022 passed by learned Special
Judge, NDPS Act Cases, Hanumangarh (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 8/15 and 18 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.
(2 of 4) [CRLMP-5493/2022]
3. Mr. Bishnoi, learned counsel for the petitioner contended that
the petitioner has been vindictively enroped in the case of the
NDPS Act.
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 Naresh Gera, CI, (Mobile
No.9414273738) and accused Mahesh Kumar (Mobile Nos.
8690890078, 9309329106) from Police Station Hanumangarh
Junction, inter alia, for the time around seizure, i.e., from 9:00
p.m. on 20.05.2021 till 12:00 am on 21.05.2021 be collected.
5. Petitioner's aforesaid application came to be rejected by the
learned trial Court vide order dated 07.06.2022, inter-alia
observing that the applicant has not explained the reason for
vengeance as to why the police personnel would want to implicate
him in a false case under NDPS Act. The court also recorded an
apprehension as to disclosure of the identity of secret informants.
6. Mr. Bishnoi, 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 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. Bishnoi, 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-5493/2022]
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, while the apprehension of the
trial court cannot be ignored, the reasons given by the trial Court
for rejection of the application under Section 91 of the Code are
irrelevant. It was unreasonable of the trial Court to reject
petitioner's application on the ground of lack of explanation
regarding vengeance.
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
such a situation, the petitioner's valuable right to defend would be
practically taken away.
(4 of 4) [CRLMP-5493/2022]
13. The present petition is, thus, allowed. The impugned order
dated 07.06.2022 is quashed and set aside and petitioner's
application under Section 91 of the Code is partly 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 Naresh Gera, CI (Mobile No.9414273738) and accused
Mahesh Kumar (Mobile Nos. 8690890078, 9309329106) from
Police Station Hanumangarh Junction, for the time around seizure,
i.e., from 9:00 p.m. on 20.05.2021 till 12:00 am on 21.05.2021
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 Police Personnel or Public Prosecutor concerned does
not oppose such request.
16. Stay petition also stands disposed of accordingly.
(DINESH MEHTA),J
229-Arvind/-
Powered by TCPDF (www.tcpdf.org)
