The main legal point established in the judgment is the admissibility of electronic records in criminal trials and the relevance of obtaining mobile tower location records to establish the location of the accused at the time of arrest.

JUDGMENT

Amol Rattan Singh, J. (Oral). - CRM-M-42664 of 2020

This petition has been filed seeking setting aside/quashing of the impugned order dated 24.11.2020 passed by the learned Judge, Special Court, Sangrur (copy Annexure P-6) in case CRM/1164/2020, titled as State v. Upashu, arising out of FIR no.51 dated 22.02.2020, registered under the provisions of Sections 22, 61, 85 of the NDPS Act, at Police Station Sadar Dhuri, District Sangrur, whereby the application filed by the petitioner to direct the mobile companies concerned to preserve the call and tower location records and produce the same in the court, has been disposed of without allowing the application qua all mobile phone numbers given therein.

A further prayer has been made for issuance of a direction that the mobile location records as prayed for in the application may be preserved, with further proceedings also sought to be stayed before the trial court, during the pendency of the present petition.

2. Learned counsel for the petitioner points to the application filed by the petitioner before the learned Judge, Special Court, Dhuri, dated 14.09.2020 (copy Annexure P-l), wherein it is seen that 10 mobile phone numbers are referred to, with the application stating the name and address of the subscribers of those numbers and call details and the tower locations of those numbers on 22.02.220, was sought to be obtained by a direction of that court.

3. Notice having been issued by the learned Judge, Special Court, on 28.09.2020, through the Public Prosecutor, thereafter a reply thereto was filed on behalf of the prosecution (State) on 26.10.2020 (copy Annexure P-3), to which learned counsel submits that even a rejoinder was filed by the petitioner on 03.11.2020 (copy Annexure P-4).

He submits that the impugned order passed thereafter on 24.11.2020 holds that other than the mobile numbers 7888325495 and 9876862404, no connection was shown of the remaining mobile numbers (to the case in hand).

However, Mr. Gupta points to paragraph 5 of the rejoinder filed by the petitioner before the trial court on 03.11.2020, wherein it is specifically stated that the purpose for calling the details of the other police officials, including one Darshan Singh and one Bhajan Lal, was to show that the petitioner was arrested at about 7.00 p.m. from near the Ramgarhia Gurudwara, Dhuri and not from the spot in question, which is stated to be near Village Benra after 10.20 p.m.

Hence, it is further stated in the rejoinder that there are two versions of the arrest, one (as per the petitioner) from near the said Gurudwara, and the other (as per the police), near the aforesaid village.

Learned counsel therefore submits that to show that the petitioner was taken through various localities by police officials from 7.00 p.m. onwards and was not arrested near Village Benra after 10.20 p.m. as is contended in the FIR, the mobile tower locations of the phones used by the police officials was necessary to be obtained and therefore the trial court has wholly erred in passing the impugned order.

4. He further submits, on query of this court, that other than the mobile phone of the petitioner and the person from whose mobile phone the petitioner received a call to come near the Ramgarhia Gurudwara Sahib, the other mobile numbers are of police officials, as per the information obtained by the petitioner; and consequently the owner and user thereof, as also the tower locations of those mobile phones, would be necessary for the petitioner to prove that he was actually not arrested near Village Benra after 10.20 p.m.

5. To support his contention that the application seeking mobile detail records could have been sought by the petitioner from the trial court, Mr. Gupta relies upon a judgment of the Supreme Court in Suresh Kumar v. Union of India 2015 (3) RCR (Crl.) 340, from which he specifically points to paragraph 7, in which it is stated as follows:-

"7. That electronic records are admissible evidence in criminal trials