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2023 Supreme(Online)(KER) 22568
HIGH COURT OF KERALA
V. G. Arun, J
SHAN MOHAMMED SHARIF – Appellant
Versus
STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR – Respondent
Crl.MC 2952 2023
O.U.ANISH RAJ, DR.ABHILASH O.U.
The right of an accused to access necessary evidence under Section 91 Cr.P.C. is crucial for a fair trial.
Headnote:
Narcotics - Accused Rights - Narcotic Drugs and Psychotropic Substances Act Section List - The court emphasized the accused's right to access evidence under Section 91 of the Criminal Procedure Code to ensure a fair trial, rebutting the rejection of a request to obtain CCTV footage crucial for the defense.
Fact of the Case:
The petitioner, accused under the Narcotic Drugs Act for possession of MDMA, sought to produce CCTV footage to disprove the prosecution's claims after his petition for retrieval was rejected.
Finding of the Court:
The court found that the rejection of the petition to retrieve the CCTV footage was incorrect, clarifying that the accused has the right to request documents essential to their defense.
Issues: Whether the accused can compel the retrieval of CCTV footage deemed necessary for a fair trial under Section 91 Cr.P.C.
Ratio Decidendi: The court ruled that Section 91 Cr.P.C. permits the accused to request documents relevant for their defense, underscoring the importance of such evidence in ensuring justice.
Final Decision: The court directed the retrieval and preservation of CCTV footage vital to the case.
O R D E R
The petitioner is the accused in Crime No.7 of 2023 of the Excise Range Office, Ernakulam for the offences punishable under Sections 22 (b), 27(a) read with Section 25 of the Narcotic Drugs and Psychotropic Substances Act . The crime is registered on the allegation that, at about 6.20 p.m, on 15.02.2023, the petitioner was intercepted in front of the Palalia Restaurant at Jawaharala Nehru International Stadium, Kaloor and searching his body 3220 mg of MDMA was recovered. The petitioner alleged that the arrest did not occur in the manner claimed by the prosecution. In order to prove this fact, the petitioner intends to cause production of the video clipping from the camera fixed in the premises of Palalia restaurant. For that purpose, he submitted a petition under Section 91 Cr.P.C with a prayer to direct the Manager of Palalia restaurant to retrieve CCTV footage between 6.00 p.m. and 7.00 p.m. on 15.02.2023. That petition having been rejected, this Crl.M.C. is filed 2. Learned Counsel for the petitioner submitted that the offence alleged against the petitioner being grave in nature, he should not be denied the opportunity to disprove the prosecution allegation. This can be done only if the CCTV footage recorded at the relevant time is preserved and produced.
3. I heard the learned Public Prosecutor also.
4. A perusal of the impugned order shows that the learned Sessions Judge rejected the petition on the premise that it is for the court to decide whether any particular document is necessary for the purpose of investigation, enquiry or trial. The reasoning is not correct, since Section 91 can be utilised by the accused to prompt the court to summon a document or thing. As contended by the learned Counsel for the petitioner, unless a direction is not issued at this point of time, it may not be possible to retrieve the CCTV footages.
For the aforementioned reason, Annexure A3 is set aside and the learned Sessions Judge is directed to issue an order directing the Manager/Administrator of Palalia Restaurant to retrieve and preserve the footages between 6.00 p.m and 7.00 p.m on 15.02.2023 recorded in the CCTV installed in the restaurant premises. The above direction is subject to the CCTV footages being available at this point of time.
