The practical difficulty of retrieving mobile tower location details after two years and its impact on the right of the accused to defend themselves adequately.

ORDER

1. The petitioners have 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 28.06.2022, passed by learned Special Judge, NDPS Cases, Bhilwara (hereinafter referred to as ’the trial Court’) whereby their application under Section 91 of the Code has been rejected.

2. The facts appertain are that a charge-sheet has been filed against the petitioners for offences under Sections 8/15, 25 & 29 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 petitioners’ possession.

3. Mr. Khilery, learned counsel for the petitioners contended that the petitioners have been wrongly enroped in the case of the NDPS Act and despite the seizure officer not being present at the scene, the recovery has been stage managed vindictively by police personnel.

4. In order to support their stand/alibi, the petitioners moved an application under Section 91 of the Code and prayed that mobile tower location of Thakra Ram, SHO, P.S. Bigod and DriverConstable Rakesh Kumar, P.S. Bigod, inter-alia, for the time around seizure, i.e., 6:00 am to 12:00 pm on 29.09.2021 be collected.

5. Petitioners’ aforesaid application came to be rejected by the learned trial Court vide order dated 28.06.2022, inter-alia observing that the call details of applicants have been produced by the PP and mobile tower location of police personnel cannot be a conclusive determinant of their physical location as mobile phone may be kept elsewhere.

6. Mr. Khilery, learned counsel for the petitioners, argued that the trial Court has rejected petitioners’ application on untenable grounds. He argued that it is the specific plea of the petitioners that false proceedings have been initiated against the petitioners.

7. Learned counsel argued that if the mobile tower locations 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. In support of his argument, learned counsel for the petitioners relied upon the judgment dated 18.02.2020 rendered by a Coordinate Bench of this Court in S.B. Crl.M.P. No.273/2020 : Swarn Singh @ Baba Vs. State of Raj. He fairly conceded that true it is, that 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 mobile tower locations 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, the reasons given by the trial Court are arbitrary and untenable. The fact that petitioners’ call details have been produced by the Public Prosecutor is irrelevant to the fact as to whether the recovery was forged or not. It was unreasonable of the trial Court to reject petitioners’ application on the ground that mobile tower location does not conclusively prove the presence or absence of a person from a particular location.

12. This Court finds substance in what has been argued on behalf of the petitioners that after passing of two years, even if mobile tower locations are deemed necessary and order of this Court in Swarn Singh (supra) is affirmed, it would be impossi