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2025 Supreme(Online)(P&H) 6185
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Yashvir Singh Rathor, J
Mukesh Dutt – Appellant
Versus
State of Haryana – Respondent
CRR-2263-2025 (O&M)
For the Appellants/Petitioners: Nishant Chauhan
For the Respondents: Jasmine Gill
The right of an accused to a fair trial and investigation under Article 21 of the Constitution prevails over the right to privacy of police officials when the production of call data records and tower locations is necessary and desirable for the pursuit of justice under Section 94 BNSS.
Headnote:The petitioner, an accused under Sections 18 and 20 of the NDPS Act, sought the production of call data records (CDRs) and mobile tower locations of police officials and a Tehsildar under Section 94 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, to establish a defense. The Trial Court had dismissed the application, prompting this challenge. The Court analyzed Section 94 of the BNSS and the necessity of preserving electronic records to ensure a fair trial. The primary issue was whether the right of an accused to a fair trial and free investigation under Article 21 of the Constitution overrides the right to privacy of police officials regarding their mobile records. The Court reasoned that the legislative intent of Section 94 BNSS is to prevent the loss of cogent material and that the right of the accused to ensure a fair trial prevails over the privacy of officials, provided the necessity and desirability of such evidence are established to uncover the truth. The impugned order dated 03.05.2025, passed by the learned Additional Special Judge, Sonipat is hereby set aside and the learned trial Court is directed to pass necessary directions under Section 94 BNSS for preserving and production of the call details/tower location details of mobile Nos.70276-60073, 95403-10709 and 97181-73732 and intimate the telecom operation will on time as such, a record is preserved only for two years.
| Table of Content |
|---|
| 1. challenge against dismissal of application for cdrs and mobile location in an ndps case. (Para 1 , 2 , 3) |
| 2. competing arguments between the right to a defense via electronic evidence and the right to privacy of officers. (Para 4 , 5) |
| 3. the right to a fair trial under article 21 overrides official privacy for necessary electronic evidence. (Para 7 , 8 , 9) |
| 4. setting aside the lower court order to allow preservation and production of specific mobile records. (Para 10 , 11) |
YASHVIR SINGH RATHOR. J.(Oral)
1. The petitioner is challenging the impugned order dated 03.05.2025 passed by the learned Additional Sessions Judge, Sonipat, whereby the application filed by the petitioner under Section 94 of the BNSS, 2023, seeking call data records (CDRs) and mobile location data was dismissed in FIR No. 49 dated 01.02.2024, registered under Sections 18 and 20 of the NDPS Act at Police Station Kharkhoda, Sonipat.
2. Brief facts of the prosecution case are that on 01.02.2024, police party head by Sub-Inspector Sunil Kumar along with other police officials was on patrolling duty near Sonipat Bypass, Kharkhoda, when they received a secret information that Mukesh (petitioner) and Rinku were attempting to sell some intoxicating substance and were travelling in white Eco car bearing No.DL-9CAQ-1305. On seeing the police party, they tried to flee from the spot but were apprehended by the police party. Upon checking, 900 grams of charas was recovered from Mukesh, petitioner and 315 grams of opium was recovered from co-accused Rinku. The said contraband was then taken into police possession.
3. The petitioner filed an application dated 18.11.2024, under Section 91 of Cr.P.C/94 of BNSS, 2023, seeking production of mobile location of SI Sunil Kumar, Tehsildar Jaivinder Singh and SI Surender Singh, which was dismissed by learned Additional Sessions Judge, Sonipat.
4. Learned counsel for the petitioner inter alia contends that the learned Court below has failed to appreciate that it is necessary that mobile tower location and call detail records of officials be preserved so that petitioner can defend his case and set up his defence to the charge. Reliance in this regard has been placed on the judgment rendered by the Hon’ble Supreme Court in (2015(3) R.C.R. (criminal) 340), Suresh Kumar vs. Union of India and this Court in (2018(4) Law Herald 3383), Amit Vasudev vs. State of Punjab and (2024(1) Law Herald 259) Satnam @Sattu vs. State of Haryana and judgment passed in CRR-1294-2024 Chhinder Pal Singh vs. State of Haryana .
5. On the other hand, learned State counsel submits that the petitioner is merely trying to delay the trial. The petitioner has no right to claim this information as, the same will amount to violation of privacy of the concerned police officials.
6. Having heard learned counsel for the parties and after perusing the record with their able assistance, it transpires that the petitioner had requested for production of mobile tower location and call detail records, for the period from 01.02.2024 to 04.02.2024 of following numbers:-
7027660073 ( SI Sunil Kumar)
9540310709 (Tehsildar Jaivinder Singh)
9718173732 (SI Surender Singh)
7. Before proceeding further, it will be apt to reproduce Section 94 BNSS, which is as under:
Section 94. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of a police station considers that the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Sanhita by or before such Court or officer, such Court may issue a summons or such officer may, by a written order, either in physical form or in electronic form, require the person in whose possession or power such document or thing is believed to be, t
