The duty of the court to collect evidence for the defense and the necessity of summoning call details for establishing innocence and ensuring fair trial.

JUDGMENT

1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. This criminal misc. petition under Section 482 Cr.P.C. has been preferred against the order dated 01.03.2021 passed by learned Special Judge, NDPS Cases Jodhpur in Criminal Misc. Case No.32/2021 (Sessions Case No.10/2021), whereby the application filed by the petitioner under Section 91 Cr.P.C. was rejected.

3. Learned counsel for the petitioner submits that on 19.04.2020, the Station House Officer, Police Station, Osiyan, on the basis of a confidential information, raided the dhani of the present petitioner and allegedly recovered seven plastic bags containing 142 kgs. 692 gms. of poppy straw. Learned counsel further submits that thereafter, an FIR bearing No.81/2020 was registered at Police Station, Osiyan, Jodhpur Rural and investigation was started.

4. Learned counsel for the petitioner also submits that the charge-sheet in this case has already been filed. Learned counsel also submits that the petitioner repeatedly moved application for certain call details and tower location to be taken on record from 19.04.2020 (10:00 p.m.) to 20.04.2020 (05:50 a.m.). Learned counsel however, submits that the learned court below has dismissed the application preferred by the petitioner under Section 91 Cr.P.C. vide the impugned order dated 01.03.2021.

5. Learned counsel for the petitioner relied upon the judgment rendered by this Hon'ble Court in Shrawan Singh @ Baba v. State of Rajasthan (SBCRLMP No.273/2020, decided on 18.02.2020), relevant portion of which reads as under:

"I am of the firm opinion that summoning of these call details was absolutely imperative for fair trial and providing a just opportunity of defence to the accused. In case, the allegations set out in the application for summoning the call details are fortified from the call details, manifestly, the entire prosecution case would stand falsified. Therefore, the trial court was not justified in rejecting the application by the impugned order which does not stand to scrutiny. It is therefore ordered that the trial court shall, forthwith summon the call details of the mobile phones of all the three officers whose names are referred to in the impugned order from the service provider provided that such call details are still stored in the database. The accused shall be at liberty to use these call details at the appropriate stage of the trial."

6. Learned counsel for the petitioner further relied upon the judgment rendered by this Hon'ble Court in Narendra Singh v. State of Rajasthan, reported in 2017 R.Cr.D 243 (Raj.), relevant portion of which reads as under:

"5. Admittedly, the call details and location details of the police party cannot be produced by the providers. It is only at the behest of the court that the same can be requisitioned. If the recovery is fake, accused-petitioner can establish that false case was lodged against him.

6. The rejection of the application on the ground that it is not the duty of the Court to collect evidence for the defense, is not the right approach adopted by the Court below. The Court below is required to do justice and when there is specific allegation that the recovery is fake and same can be established by the call details and location details of the Police Raiding Party, it was the bounder duty of the Court below to have summoned the reports of the service providers."

7. Learned counsel for the petitioner also relied upon the judgment rendered by this Hon'ble Court in Jasveer V. State of Rajasthan, reported in 2015(1) R.Cr.D. 526 (Raj.), relevant portion of which reads as under:

"6. The call details, which were sought to be summoned in this case were required for defence of the accused. The specific theory of the accused before the learned Trial Court is that the Seizure Officer and the motbir witness Parbat Singh were not present at the place of seizure when the recovery was