Mobile phone records can be preserved and used as evidence, but their interpretation requires consideration of broader circumstances surrounding an arrest.

The prayers in the Writ Petition (Criminal) are as follows:-

1. Issue a writ of mandamus directing the 3rd and 4th respondent to preserve the tower location and cell-id of mobile phone numbers of 9447474938 (BSNL), 8129133262 (Bharati-Airtell), from 01.30 pm to 10.00 pm on 10/06/2023, along with certification under section 65 B of Evidence Act and also the address details of person in whose name this SIM card are issued and to keep the document in safe custody to furnish those document before the trial court while summons being served during defence evidence in trial.

2. Hon’ble court may be pleased to grant one week time to produce the English translation of Exibit-P1.

3. Issue such other writ or orders or directions, which this Hon’ble court may deem fit and proper in the interest of justice and circumstances of the case.

2.The petitioner is the accused in Crime No.918 of 2023 of the Elamakkara Police Station. He is alleged to have committed offences punishable under Sections 22(b) and 29 of the NDPS Act.

3.The prosecution case is that on 10.6.2023 at 6.30 p.m., the petitioner was found in possession of 3.34 grams of MDMA.

4.The learned counsel for the petitioner requested for directing respondents 3 and 4, to preserve the call details and tower locations of the above mentioned mobile numbers to ensure production of the same at the time of trial.

5.While considering the similar facts, this Court in Ext.P2 has passed the following order:-

4. It is pointed out by the learned counsel for the petitioner that call records in this case shall be directed to be kept in the safe custody to furnish the same to the trial court while summoning R4, R5 and additional R6. He has placed a decision of the Apex Court reported in [MANU/SC/1304/2014], Suresh Kumar v. Union of India to substantiate his point that giving such a direction is legally permissible so that the petitioners can establish the exact location of the officers concerned at the time of the alleged arrest of the accused. On perusal of the above decision, the Apex Court directed the trial court to summon the call details sought for.

5. The learned Public Prosecutor placed a decision of the Division Bench of this Court reported in [ 2021 (4) KHC 143 : 2021 (2) KLD 30 :2021 KHC OnLine 423 : 2021 (4) KLT OnLine 1176],Gokul Raj v, State of Kerala & Ors. to contend that a Division Bench of this Court, after referring various decisions on this point, including Suresh Kumar’s case (supra) observed as under:“We also say a word of caution insofar as the trial Courts having to look at the totality of the circumstances to decide on the falsity of an arrest or seizure; which cannot be based on the mobile location alone. An officer would not have carried his mobile or it could be used by someone else and there could be numerous such circumstances that could make the exercise a futile one. As for the call details containing the details of callers, we find that the same cannot be permitted as has been held by the Hon’ble Supreme Court in Sureshkumar (supra).”

6. The respective learned counsel appearing for respondents 4, 5 and 6 are conceded that the data sought to be preserved are now in safe custody of them.

7. The question as to whether mobile phone tower location is the final word in so far as the place of the officers who arrested the accused is concerned, the same depends on the substantive evidence and it is not safe to hold that mobile tower location will always be a place where the mobile phone owners/users are present. However, there is no harm in preserving the data as sought for, particularly in view of the submission made by the respective counsel appearing for respondent Nos.4, 5 and 6 that those data are available and can be kept in safe custody. 6.Respondents 3 and 4 submitted that they have taken steps to preserve the relevant data. Having considered the circumstances brought out, respondents 3 and 4 are directed to preserve the tower location and cell-id of mobile phone n