Dated this the 28th day of March, 2022.

This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking for the following relief:

“This Honourable Court may be pleased to quash Annexure -A1 order in Crl.M.P. No.941/2021 dated 14.09.2021 of Hon'ble Additional District and Sessions Judge-VI and direct the court below to give interim custody of his mobile phone and sim card at the earliest in the interest of justice.”

2. The petitioner is the 2nd accused in Crime No. 78/2021 of Poojappura Police station registered for an offence punishable under Section 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) read with Section

34 of the Indian Penal Code (for short ‘IPC’).

3. The grievance of the petitioner was that at the time of his arrest the investigating officer has seized the mobile phone (Apple iPhone) and sim card of the petitioner and those are now kept in the court on forwarding it as item No.2 in the Thondi List. The allegation of the petitioner was that he was falsely implicated in the crime and the mobile phone and the sim card were seized from his custody illegally. An application was moved by the petitioner before Additional District and Sessions Judge-VI, Thiruvananthapuram (for short ‘the court below’) under Section 451 Cr.P.C seeking to get interim custody of his mobile phone with sim card and it was dismissed by the court below for the following reason:

“8. On going through the records, if there is any further investigation will be conducted, this mobile phone may become a material document for getting information or clues about the source of narcotic after decoding the contents of the mobile through scientific examination by the Forensic Science Lab. The prosecution submitted that the source of the narcotic is to be traced out.”

4. This Court has noticed that the offence alleged in the case is one punishable under Section 20(b)(ii)(B) NDPS Act. Ganja of 2.5Kg was seized from a shoulder bag held by the first accused. Himself and the other accused were arrested from the spot. While conducting the body search of the second accused, an Apple iphone was recovered. Even according to the prosecution, the investigation is completed and final report is filed before the court below. According to them, the iphone will not serve the purpose of evidence in the case on hand but only when further investigation is necessitated, the seized mobile phone would have relevance. The manner in which the mobile phone is involved in the offence alleged in the case on hand is not revealed from any of the the materials proposed to be relied on by the prosecution. Even according to the prosecution, investigation has been completed and a final report is filed and the mobile phone does not form part of the evidence proposed to be adduced by the prosecution during trial in the case on hand.

5. As per the report of the investigating agency, the mobile phone may become a material document for getting information or clues about the source of narcotic drug on decoding it’s contents through scientific examination by Forensic Science Laboratory in case any further investigation is ordered. There is no justification in keeping custody of the mobile phone which has no purpose to be served in the trial to be held for the offence alleged in the case on hand.

In the result, Crl.M.C stands allowed. The impugned order is set aside. Crl.M.P.No.941/2021 is allowed. The court below shall release the mobile phone and sim card in it’s custody to the petitioner forthwith.