Interim custody of seized material must balance convenience and justice, accepting electronic evidence as primary under new legal standards.

ORDER

The petitioner is the 6^th accused in S.C No.1650 of 2024 of the Special Judge's Court (SPE/CBI)-I, Ernakulam, wherein he is facing prosecution for the offences punishable under Sections 120B , 323, 324, 341, 342, 355, 306 and 506 of IPC and Sections 3 and 4 of the Kerala Prohibition of Ragging Act , 1998.

2. The prosecution allegation is that the accused hatched a conspiracy and physically assaulted Sidharthan J.S, their co- student AT the Veterinary and Animal Sciences College, Pookode, on the intervening night of 16.02.2024 and 17.02.2024 and abetted him to commit suicide. The crime was initially registered at the Vythiri Police Station and later entrusted with the Central Bureau of Investigation. During the course of investigation, three mobile phones belonging to the petitioner were seized from his possession. The petitioner later moved an application seeking interim custody of the phones, which the Special Judge dismissed by Annexure 1 order.

Hence, this Crl.M.C.

3. Heard Adv. Krishnapriya Sreekumar for the petitioner and Senior Adv. K.P. Satheesan for the CBI.

4. Learned Counsel for the petitioner submitted that her client's contact numbers and other relevant materials are all stored in his mobile phones and the petitioner is finding it extremely difficult to pull on his life without those essential details. It is further submitted the mobile phones are worth around Rs.1,40,000/- and, being a student, it is not possible for the petitioner to purchase a new phone. According to the counsel, the requisite data has been retrieved from the phones. Hence, no purpose is being served by retaining them. Relying on the decision inSunderbhai Ambalal Desai v. State of Gujarat [(2002) 10 SCC 283], it is contended that the power under Section 4 51 Cr.P.C ought to be exercised judiciously and balance of convenience is in releasing the seized article to its rightful owner. The counsel then argued that the finding in the impugned order that the extracted data can only be secondary evidence is legally incorrect and made without taking note of the provisions in the Bharatiya Sakshya Adhiniyam , 2023, ( BSA for short) particularly, Sections 57 and 61 therein. According to the counsel, the apprehension of the prosecution regarding possibility of the phones being tampered with and the petitioner raising objection regarding acceptability of the retrieved data are misplaced, and the petitioner is willing to give an undertaking that the genuineness and acceptance of the retrieved data as primary evidence will not be questioned. Support for such procedure is drawn from the decision of the High Court of Delhi in Rakesh Kumar Gupta v. Directorate of Revenue Intelligence [2025 SCC OnLine Del 1843] wherein, a similar objection was raised and interim custody granted after directing the petitioners therein to appear before the respondent and verify the genuineness of the retrieved data, if they chose to do so.

5. Learned Senior Counsel contended that, in the nature of the allegations and the mobile phones being vital piece of evidence, the well considered order of the Special Judge warrants no interference. It is pointed out that, before the Special Court, the primary reason stated was that the petitioner’s study materials are stored in the mobile phones and memory cards. The said grievance stands allayed by the direction in the impugned order to provide copies of those documents from the extracted data to the petitioner. According to the Senior Counsel, the mobile phones contain proof regarding the conspiracy in the form of messages and chats between the accused. Moreover, there is every possibility of the other accused raising objection against acce