Case: Suresh Kumar Vs. UOI

T.S. Thakur, J. 1. Leave granted. 2. This appeal arise out of an order dated 28.01.2014 passed by the High Court of Madhya Pradesh at Indore whereby Criminal Revision No. 98 of 2014 filed by the appellant against an order dated 24.12.2013 passed by the Special Judge, NDPS, Indore has been dismissed. The appellant is being prosecuted before the Special Judge, NDPS, Indore for offences punishable under Sections 8, 21, 22, 29 read with 8(C) of the NDPS Act, 1985. The prosecution case it appears is that the appellant was nabbed in front of Yashica Palace hotel near Gangwal bus stand at Indore between 1800 and 1900 hrs. on 24.02.2013 by the Intelligence Officer of the Narcotics Control Bureau carrying 610 gms of heroin and 40 gms. of Alprazolum in a bag which was seized by the Officer effecting the arrest. A mobile phone Sim No. 90395020407 was also according to the prosecution, seized from the possession of the appellant. While the trial has yet to commence on the charge sheet filed against the appellant, an application was filed on his behalf before the Special Judge, NDPS, Indore praying for a direction summoning call details that would indicate the locations of three different mobile telephone numbers mentioned in paras 3 and 5 of the said application. Out of these numbers one of the mobile phones admittedly belongs to the appellant-accused while the other two telephone numbers bearing Sim No. 9165077714 issued by the Airtel Company and Sim No. 7145593902 issued by the Tata Docomo Company are said to be of the Officers who are alleged to have arrested the appellant on the date, time and place, mentioned above. The appellants case before the Trial Court and so also before the High Court was that the prosecution story that he was arrested from near about the hotel, mentioned above, was factually incorrect which fact could according to the appellant be proved by the call details of the mobile numbers held by the officers who are alleged to have arrested the appellant. The appellant contended that the telephone numbers of the Officer effecting the arrest and making the seizure would show that the officers concerned were at some other locations during the time the appellants arrest and resultant seizures are alleged to have been made. The Trial Court and the High Court have declined that prayer as noticed above.3. We have heard Ms. Vibha Dutta Makhija, learned senior counsel for the appellant and Mr. Siddharth Luthra, learned ASG for the respondent-UOI. Ms. Makhija contended that the call details which the appellant seeks to summon under the orders of the court will be extremely vital for proving that the appellant was not arrested at the time and place alleged by the prosecution. The fact that the Officers who effected the arrest were during the relevant period at different locations would clearly belie the prosecutions case in that regard. Inasmuch as the trial court and the High Court declined to summon the call details the orders passed by them have the effect of denying to the appellant the opportunity to prove his innocence thereby causing prejudice to him in his defence.4. On behalf of the respondent it was argued by Mr. Luthra that while call details were admissible in terms of Section 65 A and 65 B of the Indian Evidence Act subject to fulfilment of the requirements stipulated in the said provision such details are likely to prejudice the prosecution and in particular the Narcotic Control Bureau inasmuch as the details being summoned would not only indicate the location of the officers concerned but also bring other information into public domain. This would according to Mr. Luthra hamper investigations and may result in exposing sources of information. Once exposed the sources may according to the learned counsel completely dry up to the prejudice of the Bureau. It was submitted that the likely prejudice which the respondents apprehend is a good enough reason for this Court to decline the prayer made by the appellant. Insofar as the call details of the mobile connection held by the accused are concerned the same have according to Mr. Luthra already been produced at the trial clearly showing that the accused was at the relevant point of time at or around the place from where he was arrested. This according to the learned ASG obviates the necessity for proving whether the officers concerned were indeed present in the area from where the petitioner was allegedly arrested along with the narcotics.5. 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 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. Be that as it may we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the Trial Court. 6. 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 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.

Decision:
1[ds]5. 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 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. Be that as it may we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the Trial Court.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 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.