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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
JAVED IQBAL WANI, J.
Masood Ahmed – Petitioner
Versus
State through S.H.O. P/S Mendhar – Respondent
CRMC No. 385 of 2017, I.A. No. 1 of 2017
Decided On : 28-09-2021
Criminal Procedure Code, 1973 - Section 94 - Indian Evidence Act, 1872 - Sections 123, 124, 65, 65-A and 65-B - NDPS, Act - Section 8/15/20/21/22/29 - Recovery of contraband - Possession - Call records - Electronic Evidence - Admissibility of - Challan for offences came to be presented by the respondent in respect of an alleged recovery of contraband from possession of petitioner alleging recovery of contraband - Production of call detail records declined by trial Court essentially prejudiced defence of petitioner and amounts to denial to fair trial of petitioner.
Finding of the Court:
Under Section 65A, contents of electronic records can be proved in accordance with the provisions of Section 65 B which provides for the mode of its proof. The facility of proof by secondary evidence would apply to any computer output as the same has been deemed to be a document for the purposes of proof. However, law is settled that the conditions of admissibility of such evidence must be proved beyond reasonable doubt if such document is tendered by prosecution and on the balance of probability if it is tendered by defence - Trial Court ought to have summoned the call detail records of prosecution witnesses in order to secure and safeguard same for securing them from being deleted/destroyed and could have decided usage of said call detail records at an appropriate stage of the trial in accordance with law - Impugned order in view of above thus, is not sustainable in law and is accordingly set aside and consequently trial Court is directed to ensure summoning of call detail records of prosecution witnesses.
Result: Petition disposed of.
ORDER :
1. Order dated 07.06.2017 passed by the Court of learned Sessions Judge, Poonch (for short ‘the trial Court’) is being challenged by the petitioner herein, while invoking the inherent jurisdiction of this Court.
2. According to the petitioner, a challan under FIR No. 59/2017 for offences under Section 8/15/20/21/22/29 of NDPS, Act came to be presented by the respondent in respect of an alleged recovery of contraband from the possession of the petitioner alleging recovery of the contraband on 31.03.2017 at around 7:30 P.M. during a Naka laid by Dy. SP Operations Dr. Mohd. Saleen Bhat at Bhatakas, Mehndar.
3. According to the petitioner, after framing of charges by the trial Court, prosecution was directed to produced evidence as a consequence whereof, statement of PW-1 namely, Dy. SP. Operations Dr. Mohd Saleem Bhat came to be recorded on 24.05.2017 and 25.05.2017 and during his cross-examination, the witness was confronted with call detail records (CDR) pertaining to his cell phone number which revealed that at that relevant time, the said witness was in Poonch Town, at a distance of 50 Kms away from the place of Naka and that during cross examination, the witness confirmed cell phone numbers of another four prosecution witnesses, who happened to be his PSOs and Driver and were supposed to be with him at Poonch at that relevant point of time.
4. According to the petitioner, in view of the admission of the contents of the documentary evidence by PW-1 and the information in respect of cell phones of other prosecution witnesses, the petitioner, filed an application under Section 94 Cr.P.C. praying before the trial Court for summoning of the Call Detail Records pertaining to the cell numbers of the said prosecution witness, being significant, desirable and necessary evidence to be used during the trial for contesting the veracity of the ocular account of proposed witnesses qua the presence or otherwise of the said witnesses at alleged place of Naka.
5. According to the petitioner, the trial Court, however, dismissed the said application, so filed by the petitioner without appreciating the legal position.
6. According to the petitioner, the production, examination and appreciation of call details of the cell phones of the prosecution witnesses has been not only desirable but also necessary for just conclusion of the trial, more so, in view of the fact, that call detail records bear credible documentary evidence and would be an ample proof of the absence of the prosecution witnesses at or around the place of alleged Naka and recovery of the contraband.
7. According to the petitioner, the production of the call detail records declined by the trial Court essentially prejudiced the defence of the petitioner and amounts to the denial to the fair trial of the petitioner.
8. Heard learned counsel for the parties and perused the record.
9. Learned counsel for the petitioner while making his submissions reiterated the contentions raised and grounds urged in the petition and prayed for setting aside of the impugned order and grant of relief as prayed in the application filed before the trial Court.
10. Per contra, the counsel for the respondents, however, would controvert and resist the contentions raised and grounds urged by the counsel for the petitioner and would contend that the order under challenge has been passed validly and legally by the trial Court and would pray for dismissal of the petition.
11. Before adverting to the controversy raised in the petition it would be appropriate and germane to refer to Section 94 (now 91) Cr.P.C. here under:-
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the
Recovery of contraband - Electronic evidence - Call records - Under Section 65A, contents of electronic records can be proved in accordance with the provisions of Section 65B which provides for the m....
The court affirmed the necessity of preserving electronic evidence to ensure a fair trial and prevent miscarriage of justice.
Preserving electronic evidence is essential for ensuring a fair trial, allowing the accused to challenge the prosecution's case effectively.
The court emphasized the fundamental right to defend oneself and the necessity of preserving evidence for a fair trial, allowing the summoning of call data records and related documents.
The accused has the right to access relevant documents to build up their defense from the beginning of the trial.
The accused has the right to access call detail record and tower location record to build up their defense from the early stages of the trial, as established in the precedent set by the Hon'ble Delhi....
The accused has the right to obtain and use call details for his defense and to confront the prosecution's witnesses with relevant questions.
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