Recently, the Rajasthan High Court has directed the preservation and production of the mobile tower location data of a police officer whose presence at the scene was disputed in an NDPS prosecution. Justice Anoop Kumar Dhand held that when the accused raises a bona fide challenge regarding the circumstances of search and recovery, the statutory avenue provided under Section 94 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) must be meaningfully enforced to secure evidence essential to the defence. The Court emphasised that “the right of the accused under Article 21 of the Constitution of India to ensure a free and fair investigation/trial would prevail over the right to privacy of the police officials.”
Brief facts:
The case arose from an FIR under Sections 8/21, 22 and 29 of the NDPS Act. According to the petitioner, an inspection of his clinic was first conducted in September 2025 around 10:50 PM, during which nothing incriminating was found. A second search was conducted later the same night at about 11:20 PM, during which contraband was allegedly recovered.
The Petitioner asserted that the police had fabricated the case and that the concerned officials were present on his premises well before the alleged recovery. To demonstrate this, he moved an application under Section 94 of the BNSS seeking preservation of the Call Data Record (CDR) and mobile tower location of the police officials for the relevant period. The Trial Court declined the request, leading to the present petition.
Contentions of the Petitioner:
The Petitioner argued that the mobile tower location and CDR were indispensable for establishing the police officials’ presence at the clinic prior to the alleged recovery. It was submitted that a false and manufactured case had been created, and unless the data was preserved immediately, the evidence necessary for his defence would be irretrievably lost. Reliance was placed on the earlier decision of the Rajasthan High Court in Narendra Kumar Soni v. State of Rajasthan.
Contentions of the Respondent:
Opposing the petition, the Public Prosecutor maintained that the investigation had been conducted lawfully and that there was “no concoction in the story of the prosecution.” It was argued that the Trial Court had rightly rejected the application and that no interference was warranted.
Observation of the Court:
Justice Dhand examined the scope of Section 94 of the BNSS and held that when the presence of police officials at the scene is disputed, an accused is entitled to invoke the provision to seek material necessary for his defence. Referring to the Supreme Court’s decision in Suresh Kumar v. Union of India, the Court reiterated that “That electronic records are admissible evidence in criminal trials is not in dispute. Sections 65A and 65B of the Indian Evidence Act make such records admissible subject to the fulfilment of the requirements stipulated therein which includes a certificate in terms of Section 7 65B(4) of the said Act. To that extent the appellant has every right to summon whatever is relevant and admissible in his defence including electronic record relevant to finding out the location of the officers effecting the arrest.”
The Court further noted the Supreme Court’s clarification that “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 concerned need not contain other information concerning such calls received or made from the telephone numbers concerned.”
Addressing the balance between privacy and fair trial rights, the Court observed that “No doubt, while passing the appropriate direction for preserving and production of Call Data Record/tower location details under Section 94 of the BNSS would violate the right to privacy of the police officials but the right of the accused under Article 21 of the Constitution of India to ensure a free and fair investigation/trial would prevail over the right to privacy of the police officials.”
The Court then explained the legislative intent behind Section 94, noting that “the right of the accused to invoke the provisions of Section 94 of the BNSS for obtaining the aforesaid documents in his defence cannot be overlooked,” and emphasised that “requisitioning and preserving of the Call Data Record and tower location details at the earliest would be necessary, otherwise, the same would be lost forever.” It concluded that depriving an accused of access to admissible electronic evidence “would amount to miscarriage of justice.”
The decision of the Court:
In light of the foregoing discussion, the Court partly allowed the petition and directed the Trial Court to summon the mobile tower location of the concerned police official, with the service provider instructed to preserve the corresponding CDR and location data. It further ordered that “the details of the phone number of the incoming and outgoing calls… shall be censored” before the material is furnished to the Trial Court.
Case Title: Dr. Avinash Sharma v. State of Rajasthan & Anr.
Case No.: S.B. Criminal Misc. Petition No. 7112/2025
Coram: Hon’ble Justice Anoop Kumar Dhand
Advocate for Petitioner: Adv. Bhrigu Sharma
Advocate for Respondent: PP Amit Punia, Inspector Ranveer Singh
Read Order @Latestlaws.com
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