The court emphasized the necessity of preserving electronic evidence for ensuring a fair trial, ruling that denying access to such evidence hinders the pursuit of truth.

Order :

FARJAND ALI, J.

1. The instant Criminal Misc. Petition has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) against the order dated 11.09.2024 passed by the learned Special Judge, NDPS Act Cases, Sri Ganganagar, in Session Case No. 32/2022, whereby the learned trial court erroneously dismissed the petitioner’s application under Section 94(1) of BNSS, 2023 seeking call details, CCTV footage, and the log book of police vehicles relevant to the case.

2. The brief facts of the case are that the petitioner, along with co-accused Kaka Singh, was allegedly found in possession of 5 kgs 200 gms of opium milk in an Innova Car (PB-22-R- 1028) near BSF Camp, Sri Ganganagar, on 26.12.2023 at about 9:30 PM. Pursuant to this, an FIR under Sections 8/18 of the NDPS Act was registered, and the petitioner was arrested. Subsequently, a charge sheet was filed against the petitioner and co-accused under Sections 8/18 & 29 of the NDPS Act, while the investigation against one Prakash Chandra remained pending under Section 173(8) CrPC.

3. During the trial, the petitioner filed an application under Section 94(1) BNSS, 2023, requesting access to call details of police personnel, CCTV footage of the Police Line, and log book records of police vehicles for 26.12.2023 to establish that he had been falsely implicated. The learned trial court, however, dismissed the application vide impugned order dated 11.09.2024, failing to appreciate the significance of the requested electronic evidence.

4. The petitioner submits that the learned trial court's rejection of his application is erroneous and unjust. It is the petitioner’s case that he was unlawfully detained by police officials at 2:00 PM on 26.12.2023 from the Railway Station Taxi Stand, Sri Ganganagar, and was subsequently taken to the Police Line, Sri Ganganagar, where he was allegedly beaten and robbed of Rs. 70,000/-. The petitioner contends that the police fabricated the recovery and falsely implicated him in the case. To support this claim, he sought call detail records of police personnel involved, CCTV footage from 2:00 PM to 4:00 PM (Police Control Room) and 3:00 PM to 5:30 PM (Police Line, Sri Ganganagar), and the log book of police vehicles.

5. Heard the learned counsels present for the parties and gone through the materials available on record.

6. This Court has extensively examined similar legal issues in Chotha Ram & Anr. v. State of Rajasthan (SBCRLMP No. 3672/2023, decided on 04.03.2023). The relevant observations from the judgment are as follows:

“11. This Court feels that if for the purpose of reserving and saving the right of the accused and for the sake of justice, if a prayer is made to summon the electronic evidence so as to elicit the truth behind the story, then such prayer ought not to have been declined. When the assertion is made that what is wrong may be proved to be wrong and vice-versa in the end so that the oil and truth must come out, then the defence must be given an opportunity because not giving an opportunity would mean denying them to counter the charges or to defend themselves as well as closing the door of justice for truth to enter in.

12. It is true that after commencement of the trial, the opportunity is being given to the prosecution to lead or adduce evidence in support of charges, whereafter an explanation under Section 313 of Cr.P.C. will be sought from the accused and then the stage of entering into defence under Section 233 of Cr.P.C. would come. It is also true that until the stage of taking the evidence of the defence on record comes, the defence evidence is not required to be taken on record and for that purpose no defence material would be summoned but here is not the question of taking or tendering the defence evidence or relying upon that rather it is observed that, as per the Rules and Regulations of the Telecom Regulatory Authority of India, the data of call record is deleted automatically after lapse of one year, the