The Court determined that interim custody may be granted when evidence is deemed non-essential to ongoing investigations, thereby facilitating the return of seized property.

ORDER

Dated this the 17^th day of February, 2026 The sole accused in Crime No. 711 of 2025 of Vanchiyoor police station filed this petition under Section 528 of the B.N.S.S. , challenging the order of the Judicial First Class Magistrate Court- XI, Thiruvananthapuram, dated 16.08.2025 rejecting his prayer for interim custody of the mobile phone seized from him by the police. The offences involved in this case are under Sections 126 (2), 115(2), 118(1), 64, 74 and 79 of the

2. The petitioner had filed C.M.P. No. 1232 of 2025 before the learned Magistrate praying for getting interim custody of the mobile phone seized from him. As per order dated 16.09.2025, the learned Magistrate dismissed the said application on the ground that the investigation in the case is ongoing and if the mobile phone is released to him, he may tamper with the evidence.

3. The learned Public Prosecutor upon instructions submitted that the above mobile phone was sent for examination to the FSL and that the FSL report was not yet received. Therefore, the learned Public Prosecutor submitted that the mobile phone can be released to the petitioner only after receipt of the FSL report.

4. The learned counsel for the petitioner relying upon Section

105 of BNSS would argue that in this case the mandate of the above provision was not complied and as such the seizure of mobile phone itself is illegal. In support of the above argument, he has relied upon the decision of the Allahabad High Court in Shadab vs. State of U.P. [2026 SCC OnLine All 5.

5. It is true that Section 105 of BNSS stipulates that the process of conducting search of a place or taking possession of any property, article or thing under the said chapter or under Section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio - video electronic means.

6. The learned Public Prosecutor would argue that, the above provision strictly applies only in case of search of a closed premises and that in the instant case the mobile phone was seized from the accused when he was arrested and in such cases audio video recording is not madatory.

7. In the instant case, the specific case of the petitioner is that when he was arrested the police seized his mobile phone and therefore, by filing an application under Section 451 Cr.P.C. he seeks its interim custody. That means he has admitted that his mobile phone was already seized by the police and in such an incident, the mandate of Section 105 of BNSS may not strictly apply.

8. In the instant case, the learned Public Prosecutor upon instructions submitted that the mobile phone of the petitioner was not used for the commission of the offence alleged against the petitioner. In the above circumstances, no useful purpose will be served in examining the said mobile phone with the help of the officials of the Forensic Science Laboratory. Since the mobile phone of the petitioner was not used for the commission of the offence, and the examination of the same will not serve any purpose, this Crl.M.C. is disposed of with a direction to the Judicial First Class Magistrate Court-XI, Thiruvananthapuram to receive back the mobile phone forthwith from the FSL and return it to the petitioner under Section 451 of Cr.P.C. subject to reasonable conditions.

Sd/-