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HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
MUHAMMED FAYIS – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 9079 2023
Crl.M.C - Mobile Phone Release - Section 451 Cr.P.C - The court quashed the order denying the release of a mobile phone seized during the investigation, emphasizing the necessity of returning the item with conditions unless it's required as evidence.
Fact of the Case:
The petitioner sought to quash an order denying the release of a mobile phone seized during the arrest in a drug-related case. The special judge indicated the phone's potential relevance as evidence during trial.
Issues: Whether the mobile phone, seized as part of an investigation, should be released to the petitioner under Section 451 Cr.P.C. without being kept until the conclusion of the trial.
Ratio Decidendi: The court concluded that unless the mobile phone is essential for the trial, it should be returned to the petitioner with appropriate conditions, aligning with the precedent set in a prior Supreme Court case.
Final Decision: The Crl.M.C is allowed; the special judge is directed to release the mobile phone with appropriate conditions.
ORDER
This Crl.M.C is filed to quash the order dated 04.09.2023 in Crl.M.P No.2021 of 2023 on the file of the Special Court for SC/ST (POA) Act and NDPS Act cases, Manjeri. This a petition filed under Section 451 Cr.P.C. by the petitioner, who is an accused in Crime No.34 of 2023 of Excise Range, Ponnani. The offence alleged are punishable under Sections 22 (b) and 29 of the NDPS Act. According to the petitioner, his mobile phone was seized by the excise officials when he was arrested and the petitioner seeks release of the mobile phone. The same is dismissed by the learned Judge stating that the mobile phone may have to be tendered in the evidence during trial to prove the petitioner’s arrest. Aggrieved by the same, this Crl.M.C is filed.
2. Heard the counsel for the petitioner and the public prosecutor.
3. The public prosecutor submitted that the CDR details are already taken from the service provider and it is kept in the court. After hearing both sides and also going through the impugned order, I am of the considered opinion that the order passed by the learned special Judge is not in tune with the principle laid down by the Apex Court inSunderbhai Ambalal Desai v. State of Gujarat ( AIR 2003 SC 638 ). If the mobile phone is necessary during the trial, there can be condition to produce the same as and when required. The mobile phone need not be retained by the court, till the case is over. Therefore, the learned special Judge will release the mobile phone after imposing appropriate conditions, in accordance with law.
Therefore, this Crl.M.C is disposed of in the following manner:
1. Annexure A1 order is set aside.
2. The Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri is directed to release the mobile phone after imposing conditions as ordered in Sunderbhai Ambalal Desai v. State of Gujarat (AIR
2003 SC 638).
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