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2023 Supreme(Online)(KER) 16324
HIGH COURT OF KERALA
P. G. Ajithkumar, J
HEBIMON – Appellant
Versus
STATE OF KERALA – Respondent
WP(Crl.) 890 2023
K.SIJU, S.ABHILASH, ANJANA KANNATH,SATHISAN P.,DONA AUGUSTINE(K/180/2016)JAVED HAIDER(K/001709/2018)SHIBU B.S(K/001060/2021)BIJU P.PAUL(K/000648/2022)AKHIL SURESH(K/000576/2016)6) THE NODAL OFFICERAdvocate
The absence of call data can impede the establishment of crucial evidence in defense of criminal charges.
Headnote:
Writ - Criminal Procedure - NDPS Act - Section 20(b)(ii)(C) - Court summarized the significance of mobile call data records and their admissibility in the context of the prosecution's case against the petitioner for drug-related offenses, emphasizing the challenges in tracing location without call activity.
Fact of the Case:
The petitioner was intercepted while allegedly transporting Ganja. He claimed he was in search of spare parts and requested preservation of mobile call data and CCTV footage to substantiate his defense.
Finding of the Court:
The court acknowledged the absence of call data on two mobile numbers, complicating efforts to trace the petitioner's location, while the 5th respondent confirmed availability of call data for an additional number.
Issues: Whether to preserve mobile call data and CCTV footage for the trial related to drug transportation charges.
Ratio Decidendi: The court emphasized the importance of evidence such as call data records and CCTV footage in criminal proceedings, particularly to establish the location and actions of the accused.
Final Decision: Writ Petition disposed of with direction to preserve available call data.
JUDGMENT
The petitioner is one of the accused in Crime No.502/2023 of Chadayamangalam Police Station, registered for the offences punishable under Section 20(b)(ii)(C) of NDPS Act . Ext.P1 is the F.I.R. and the F.I. statement in the above case.
2. The prosecution case is that on 03.04.2023 at 1.15 A.M., the Sub Inspector of Police, Chadayamangalam and party intercepted a vehicle bearing Reg.No.KL-01-CK-2624 near Nilamel Sastha Temple on the MC road and it was found that the accused transporting 53.860 kgms of Ganja.
3. According to the petitioner, he went to Neyyattinkara on 02.04.2023 to purchase spare parts for his Innova car but after searching in some of the auto spare shops, it’s realized that the same is not available at Neyyattinkara but available at Kaliyikavila in Tamil Nadu side. Therefore, the petitioner availed an autorickshaw of the 2nd accused and went to Kaliyikavila in search of spare parts is the submission. When the petitioner reached Padanthalumoodu at about 7.30 P.M., the police party attached to the respondent Nos.3 and 4 intercepted the vehicle bearing Reg.No.KL-01-CK-2624 and taken both the accused and the said vehicle. It is submitted that at the time when the petitioners were arrested, they were keeping mobile phones with them and a perusal of call data recorder of their respective mobile phones will disclose the facts that they were arrested from Kaliyikavila and not from Nilamel as alleged by the prosecution. Hence, this Writ Petition(Crl.) is filed with the following prayers:
i. To issue a writ of mandamus or any other appropriate writ or order commanding the respondents 5 and 6 to preserve the call data details with tower location of the mobile number of the 1st petitioner 9337159565 and 8848183853 of Geo communications and the mobile number of the 2nd accused 8943598852 of Vodafone till the trial and disposal of the Crime No.502/2023 of Chadayamangalam police station, Kollam (Rural).
ii. To direct the respondents 1 and 2 to authorize an ofÏcer under them to collect and preserve CCTV footages of the convoy of vehicles bringing the petitioner from Kaliyikavila to Nilamel from 7.30 P.M on 2.04.2023 and on the way to Nilamel on 03.04.2023 for the purpose of trial in Crime No.502/2023 of Chadayamangalam police station, Kollam (Rural)
iii. To pass such other reliefs that this Hon’ble Court deem fit and proper.”
4. This Court issued notice to respondent Nos.
5 and 6. An afÏdavit is filed by the 6th respondent.
It will be better to extract the same;
“2. In compliance to the direction of the Hon'ble Court dated 06.11.2023 we have examined the telecommunication records for the designated phone numbers, 9337159565 and 8848183853 that is under the purview of our services and hereby state that for the dates in question (02.04.2023 and 03.04.2023), no incoming calls to the said phones and also no outgoing calls from the said phones were seen to have been made. Similarly, there are no incoming messages received by these numbers nor are there any text messages send from these numbers on the two dates in question. Consequently, there are no call detail records to be preserved by this Respondent for these two dates.
3. The tower location of a cellular/ mobile connection is traceable only when the cellular signals are picked by a mobile tower upon an incoming call/SMS to the number or an outgoing call/SMS made from the number. In the absence of such calls/SMS, tracing the location of the mobile to a nearby telecommunication tower is technically impossible. In the present case, the absence of any incoming or outgoing calls/SMS on these two mobile numbers is a significant factor impeding the tracing of tower location. This respondent, in good faith, expresses the difÏculty in determining the tower location, attributing this challenge directly to the conspicuous absence of any calls or messages received on the aforementioned phone numbers during the said period.
4. Furthermore, I state that despite diligent efforts to retrieve a
