Order(Oral)

19/09/2024

1. Petitioner herein is impugning an order dated 18.07.2024 passed by the learned Special Judge, Pratapgarh in Criminal Misc. Case No.103/2024 pertaining to FIR No.131/2024, under Sections 8 and 22 of NDPS, Act and Sections 3 and 25 of Arms Act, 1959, lodged at Police Station Arnod, District Pratapgarh. Application filed by the petitioner accused under Section 94 and 348 of BNSS seeking CCTV footage, Call location & Tower location was dismissed vide the impugned order.

2. Brief facts of the case are that on 27.06.2024, around 4:15 PM, S.H.O. Arnod received information about a person selling illegal MDMA at a farmhouse outside Devaldi. Upon arriving at 5:00 PM, the police officals apprehended the petitioner i.e. Arbaaz Khan Pathan, aged 19, attempting to flee. A search revealed 545 grams of MDMA and a pistol with ammunition in his possession. He could not provide a license for either item, which led to the registration of an FIR at Police Station Arnod and his subsequent arrest.

2.1 The petitioner asserts that he was falsely implicated and that the police were not even present at the alleged scene of occurrence and it is all a made up story. During the trial, he filed an application under Sections 94 and 348 of the B.N.S.S., requesting mobile call details and CCTV footage to support his claims. The Learned Special Court rejected this application by order dated 18.07.2024.

3. In the aforesaid backdrop, I have heard learned counsel for the petitioner as well as learned Public Prosecutor and have gone through the case file.

4. Learned counsel for the petitioner argues that the impugned order suffers from gross illegality and contradicts established legal principles, as well as the fundamental rights of the accused to defend themselves. The petitioner was forcibly taken to the Arnod Police Station without any recovery of contraband and has been falsely implicated. The S.H.O. and his team were not present at the alleged incident location. The petitioner’s brother, a habitual offender, is actually being pursued by the Investigating Agency, which has resorted to falsely implicating the petitioner as an abuse of the legal process.

5. In somewhat similar situation recently I had an occasion to deal with an another matter in case titled Mala Ram Vs. State of Rajasthan1, wherein call details, instead of CCTV footage, were sought to be protected during the pendency of the trial. The views expressed therein, being apposite, are reproduced as follows:

Rajasthan High Court - S.B. Civil Misc. Petition No.5372/2024, decided on 04.09.2024.

“7. A perusal of the above thus reveals that Section 94 of BNSS can be invoked only either at the instance of the court or the officer in- charge of the police station, who in a given situation, may consider any document to be produced for the benefit of the Court. It was thus, not open for the accused to invoke Section 94 of BNSS. I am also of the view that technically speaking, the learned trial court committed no irregularly in law in dismissing the application filed under Section

94, ibid.

8. However, in the peculiar facts and circumstances of the case, I am of the considered opinion that for securing the ends of justice, the petition otherwise deserves being allowed on merits.

9. Under section 528 of BNSS, this Court has inherent powers and a corresponding duty to make such orders as may be necessary to secure the ends of justice.

10. The petitioner herein is under-trial being accused serious offence unde Section 302 of IPC. If he is held guilty, the consequence thereof may result into death penalty and/or conviction for life imprisonment. Any negligence or dereliction in adducing of the evidence, needless to say, will result in miscarriage of justice and severely jeopardize the defence of the accused.

11. On a Court query, it transpires that currently prosecution testimony is being recorded by the trial court. Given the work load, it may so happen that at the stage of defence evidence, owing to