At the stage of framing of charge, the court can only consider material produced by the prosecution. The accused cannot invoke Section 91 to prove innocence, unless material of sterling quality has been withheld by the investigator/prosecutor.

JUDGMENT :

1. The petitioner is facing criminal trial in FIR No. 14/22 registered under Sections 8/20/29 of NDPS Act in the Court of learned Second Additional Sessions Judge, Jammu [‘trial Court’]. The matter is yet to be taken up by the trial Court for framing of charge.

2. With a view to contest framing of charge, an application under Section 91 Cr.PC came to be filed by the petitioner before the trial Court to call for the Tower location (CDR) of Airtel Mobile No. 9034909052 and Jio Mobile No. 8708236962 belonging to the petitioner and also the Tower Location (CDR) of two mobile numbers of co-accused, namely Ombir. A request was also made to call for the record of toll tax paid through the Fastag affixed to the Hyundai Creta car of the petitioner bearing Registration No. HR29AV-3483 at Ban Toll Plaza, Nagrota on 14.10.2022 along with CCTV footage of 14.10.2022. The application was filed on the ground that the petitioner and co-accused are suffering incarceration for the last more than ten months for no fault of their. The petitioner is a business man who deals in sale and purchase of apples and in connection thereof, he along with his friend were coming back from Kashmir on 14.10.2022. The petitioner, who was travelling in the Hyundai Creta Car was stopped by some persons in civil clothes immediately after they crossed Nashri Tunnel. On enquiry, it was found that the men in civil clothes were members of a team of Police from Police Station ANTF Gandhi Nagar Jammu. It was alleged that the ANTF team took the petitioner and co-accused to the office of ANTF Gandhi Nagar, Jammu. The petitioner claims that they went to Ban Toll Plaza and even paid toll tax through fastag affixed on the wind screen of the vehicle. It was also alleged in the application that the ANTF Team switched off the phones of the petitioner and the co-accused before they were taken out of the Police Station ANTF. The Hyundai Creta Car of the petitioner was taken by the ANTF people to a place on bypass Sidhra, Narwal, also known as Bagh-e-Bahu Morh Jammu where they handcuffed the petitioner and the co-accused. The ANTF team which had fabricated a cavity inside the fuel tank of Creta car, took out some stuff and informed the petitioner that it was charas. The petitioner along with co-accused were arrested and a false case under Sections 8/20/29 NDPS act was slapped upon them. It is submitted that the documents which the petitioner is asking for would show to the Court that the entire drama leading to recovery and arrest of the petitioner and co-accused was stage managed by the ANTF team of Gandhi Nagar, Jammu. The tower location would indicate how the petitioner and the co-accused moved from Ban Toll Plaza to Gandhi Nagar and then to Bagh-e-Bahu Morh on Sidhra road, Narwal.

3. The application was resisted by the prosecution. In its objections, learned APP submitted that the challan which is subjudice in the trial Court is fixed for framing of charge on 17.10.2023. The petitioner is a kingpin of a gang of narcotic smugglers who smuggle narcotics from Kashmir to other parts of the country and has established his network. The offence committed by the petitioner is serious, heinous and non-bailable and carries rigorous imprisonment, ranging from 10 to 20 years. It was also submitted that the required CDR and other documents which had already been procured by the Investigating Officer [‘I.O’] are annexed with the challan. That apart, the CCTV footage, tower locations and toll tax data are being stored for a specified period of time and, thereafter, get deleted/erased automatically.

4. The application was considered by the trial Court in the light of rival submissions made by learned counsel appearing for the petitioner and the prosecution and the case law on the point. The trial Court concluded that at the time of framing of charge, an accused does not have a right to produce any material or documents to contest framing of charge, for, the charge is required to be frame