Chandigarh, February 28, 2022: In a case where the NDPS accused persons were seeking the preservation of tower locations and call details of their mobile phones along with that of the Police officers, who allegedly apprehended them with narcotic substances, the Punjab and Haryana High Court has held that merely the call details as obtained from the mobile tower by itself would not be conclusive proof of the fact that accused were not apprehended from the spot as mentioned in the FIR.
The petitioners who were accused in an NDPS matter argued that the recovery of contraband was planted upon them by the Police and hence, they wanted to have access to their tower locations and call records.
The Bench of Justice Jaishree Thakur while allowing the Revision added that the Trial must be fair, giving an opportunity to the prosecution and the accused to set up their cases and that when there was a specific averment made to the effect that the petitioners were not present at the spot from where they were allegedly apprehended, one of the means for them to establish their innocence would have been through the mobile phone tower location.
The facts of the case were such that based on the secret information received by the police, the petitioners were apprehended and 10000 intoxicant tablets of Carisoma and 1500 intoxicant tablets of Tramadol Hydrochloride were recovered from them and on that basis, an FIR under Sections 22/25 of the NDPS Act was registered. Thereafter, on the basis of the disclosure statement made by the petitioners, one Raj Kumar @ Raju was nominated as accused and Section 29 of the NDPS Act was added. After completion of the investigation, a charge sheet was presented and charges were framed.
During the course of the trial, the petitioners moved an application for issuance of directions to the Nodal Officer of the concerned Telecom companies to preserve the tower location and call details of the mobile number of the petitioners and the police officials for the period February 15, 2021, and February 16, 2021, which was dismissed.
The petitioner’s counsel submitted that the impugned order was not sustainable in the eyes of law and that the petitioners were falsely implicated in the instant case. It was also submitted that in fact the petitioners were arrested on February 15, 2021, and thereafter the case was registered on February 16, 2021, and thus the alleged contraband was planted on the petitioners. Thus, the counsel argued that in order to ascertain the location of the petitioners as well as the police officials on the relevant dates, it was necessary to preserve the tower location and the call details of the mobile numbers, as prayed for in the application filed by the petitioners. It was also contended that in case tower location and call details of the mobile were not preserved, a great prejudice would be caused to the petitioners.
Per contra, the counsel for the respondent-State submitted that there was not even a single averment in the application as to for what purpose the preservation of the call details and tower location was needed and, therefore, the application was rightly dismissed by the trial court.
The Court noted at the outset that the limited prayer in this petition was for the preservation of the call record of both the petitioners and the police officials as mentioned in the application. It was mentioned in the FIR that the Police received secret information that the petitioners were habitual of selling intoxicant tablets and they could be apprehended in possession of the same.
It was the contention of the petitioners that they were not apprehended from the spot as specified in the FIR but were apprehended on February 15, 2021, from another location and recovery of fake contraband was shown from them. Thus, it was argued that in order to establish their defence, it would be imperative to preserve the call details of the mobile phones and the location of both the petitioners as well as the police officials mentioned in the FIR, who allegedly received secret information regarding the involvement of the petitioners in the alleged crime.
Thus, in this light the Court observed that it is well settled that trial must be fair, giving an opportunity to the prosecution and the accused to set up their cases. Further, the Court added that when there was a specific averment made that the petitioners were not present at the spot from where they were allegedly apprehended, one of the means for them to establish their innocence would be through the mobile phone tower location. However, the Court clarified that merely the call details as obtained from the mobile tower by itself would not be conclusive proof.
Having said so, the Court concluded that the accused/petitioners could not be deprived of a chance to a fair trial and therefore, the impugned order was directed to be set aside.
Revision petition was allowed.