Aqeel v. State of Kerala; Hijas v. State of Kerala (CRL.M.C Nos. 1319/2022, 1320/2022, 1407/2022)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` CRL.MC NO. 1319 OF 2022 ``` ``` AGAINST THE ORDER DATED 09.02.2022 IN CRIMINAL MISCELLANEOUS PETITION NO.1369/2021 IN S.C.NO. 552/2020 OF SPECIAL COURT FOR SC/ST (POA) & NDPS ACT CASES, MANJERI ``` ## `PETITIONER/PETITIONER/2ND ACCUSED:` ``` AQUEEL, AGED 20 YEARS, S/O USMAN, AMAN HOUSE ,POKKU HAJI PARAMBU, KALLAYI (P.O.),KOZHIKODE DISTRICT PIN - 673003 BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.G.RAJAGOPAL (KUMMANAM) ``` ## `RESPONDENT/STATE:` ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 682031 *ADDL R2 & R3 IMPLEADED. 2GENERAL MANAGER ,BSNL OFFICE OF THE GENERAL MANAGER, NH 47, PMG, THIRUVANANTHAPURAM, PIN-695033 3NODAL OFFICER BHARATI AIRTEL LIMITED, AL AVENUE, NH BYPASS, MARADU P.O, KUNDANNOOR, ERNAKULAM DISTRICT, PIN-682304. R1 BY SENIOR PUBLIC PROSECUTOR SRI.RENJITH GEORGE R3 BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS(K/844/2007) SMT.KARTHIKA MARIA(K/001293/2016) SRI.ANIL SEBASTIAN PULICKEL(K/000278/2018) SMT.VEENA RAVEENDRAN(K/838/2016) ``` * `ADDL R2 AND R3 IMPLEADED AS PER ORDER DATED 01.04.2022 IN CRL.MA.NO.2/2022 IN CRL.M.C.NO.1319/2022` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.06.2022, ALONG WITH Crl.MC.1320/2022 AND 1407/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ``` 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` CRL.MC NO. 1320 OF 2022 ``` ``` AGAINST THE ORDER DATED 09.02.2022 IN CRIMINAL MISCELLANEOUS PETITION NO.62/2022 IN SC NO.552/2020 OF SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI ``` ## `PETITIONER/PETITIONER/2ND ACCUSED:` ``` AQUEEL, AGED 20 YEARS, S/O.USMAN, AMAN HOUSE, POKKU HAJI PARAMBU, KALLAI (P.O.), KOZHIKODE DISTRICT PIN - 673003 BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.G.RAJAGOPAL (KUMMANAM) ``` ## `RESPONDENTS/RESPONDENTS & STATE:` ``` 1VODAFONE KERALA HEAD OFFICE, ANGELS ARCADE, TVS ROAD, SOUTH KALAMASSERY, ERNAKULAM, PIN – 683 104 ``` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI- 682 031 ``` ``` R2 BY SENIOR PUBLIC PROSECUTOR SRI. RENJITH GEORGE ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.06.2022, ALONG WITH Crl.MC.1319/2022 AND Crl.M.C.1407/2022 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ``` 3 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` CRL.MC NO. 1407 OF 2022 ``` ``` AGAINST THE ORDER DATED 09.02.2022 IN CRIMINAL MISCELLANEOUS PETITION NO.1367/2021 IN S.C.NO.552/2020 OF SPECIAL COURT FOR SC/ST (POA)& NDPS ACT CASES, MANJERI ``` ## `PETITIONER:` ``` HIJAS AGED 23 YEARS, S/O ABDUL RASAK, VEETTILAKATH HOUSE, MANKAVU P.O,KOZHIKODE, PIN - 673007 ``` ``` BY ADVS.SRI.N.ABHILASH SRI.PRAVEEN K. JOY ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER KONDOTTY POLICE STATION, MALAPPURAM, PIN - 673638 3ADDL. R3 IMPLEADED VODAFONE KERALA, HEAD OFFICE, ANGELS ARCADE, TVS ROAD, SOUTH KALAMASSERY, ERNAKULAM-682014 REP. BY ITS GENERAL MANAGER (LEGAL) ADD. R3 IMPLEADED AS PER ORDER DATED 01/04/2022 IN CRL.M.A. 2/2022 IN CRL. M.C.1407/2022. ``` ``` BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.06.2022, ALONG WITH Crl.MC.1319/2022 AND Crl.M.C.1320/2022 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ``` 4 ``` ## **`ORDER`** ## **`Dated this the 17[th] day of June, 2022`** These petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’) seeking to quash orders passed by Special Court for SC/ST (POA) Act and NDPS Act Cases, Manjeri (for short ‘the court below’) in Criminal Miscellaneous Petition Nos.1369/2021, 62/2022 and 1367/2021 filed in SC No.552/2020 pending on it’s file. 2. Crl.M.P.No.1369/2021 was filed by the 2[nd] accused in SC No.552/2020 seeking for a direction to the mobile service providers to produce the details of tower location and call records of mobile phone numbers of PWs 1 to 5 for the period from 10 am to 11.59 pm of 05.06.2020 and also the documents given while applying for SIM cards of the said mobile numbers. 3. Crl.M.P.No.62/2022 was filed by the 2[nd] accused in SC No.552/2020 seeking for a direction to the mobile service providers to produce the details of the tower location and call records of the mobile phone numbers of Accused Nos. 1 and 2 ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ## **`5`** from 10 am to 11.59 pm of 05.06.2020 and also the documents given while applying for SIM cards of the said mobile numbers. 4. Crl.M.P. No.1367/2021 was filed by the 1[st] accused in SC No.552/2020 seeking to send the SAMSUNG mobile phone of the 1[st] accused seized from him by the police to the Forensic Laboratory to get the entire phone location of the said mobile phone on 05.06.2020. 5. All the three applications were dismissed by the court below by separate orders passed on 9.2.2022. 6. Sri.R.Bindu Sasthamangalm, the learned counsel representing the petitioner in Crl.M.C.Nos.1319/2022 and 1320/2022, has contended that particulars summoned are very much relevant for establishing the defence case, by the petitioners. According to him, the alleged time of arrest and seizure of the contraband articles on 05.06.2020 at 7:50 p.m. and PWs 1 to 5 and both accused were not present at the alleged place of incident at the relevant time and for establishing those aspect, the details are called for. ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ## **`6`** The court below dismissed Crl.M.P.No.1369/2022 based on Nimith C. v. State of Kerala [2014 (3) KHC 771] wherein this Court has held that accused is not entitled to get call details received or information regarding calls received by police officer in his official mobile phone. The court below has also observed on the basis of Section 31 of the Police Act which says that certain information collected by the police on receipt of the activities of any individual or institution in the course of discharge of their duties being confidential shall not be divulged except for the purpose of using such information for official needs. 7. Crl.M.P.No.62/2022 was dismissed by the court below for the following reasons: “ From the tower location of a particular mobile number the presence of the owner of the said mobile number cannot be conclusively determined. The call records of the mobile phone of the accused and the documents submitted by them for obtaining the SIM has nothing to do with the case in hand. Petitioner can adduce other evidence to prove the defence case. This petition is filed only to delay the trial” ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ``` 7 ``` 8. According to Sri.Praveen K.Joy, the learned counsel for the petitioner in Crl.M.C.No.1407/2022, the court below dismissed Crl.M.P.No.1367/2021 for the following reasons:- “ The nature of examination to be conducted on the mobile phone is not stated by the petitioner. By examining in a forensic lab the mobile location of a p `a` rticular mobile phone on `a` particular day cannot be found out. Moreover from the mobile location of a particular mobile phone the presence of the owner of the said mobile phone cannot be conclusively determined. The intention of `th` e petitioner is o `n` ly to delay the trial of this case.” According to the respective counsel, the court below is highly unjustified in dismissing the applications and interference with those is called for. 9. The service providers of the mobile phones were not impleaded as respondents in Crl.M.C.Nos.1319/2022 and in 1407/2022. Accordingly the petitioners were directed to implead them as respondents. The direction was complied with and the service providers are now in the array of the respondents. ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ## **`8`** 10. The service providers of Bharati Airtel Limited and Vodafone Kerala, have submitted that the relief prayed for is not liable to be granted, since the one year period for which they are bound by the Rules governing them to maintain those has already been expired. According to additional 2[nd] respondent in Crl.M.C.No.1319/2022 the service provider of BSNL, they will maintain the details for two years, but that two year period has also been expired. 11. In the above circumstances, it is impracticable to issue the directions called for to the service providers. The impugned orders of dismissal though passed on a different footing, in view of the submissions of the learned counsel representing the service providers who are impleaded as additional 2[nd] and 3[rd] respondents in the respective petitions, the period for which they are bound to keep the details being elapsed already, the applications on hand are not liable to be allowed so far as the call details and CDRs called for, are concerned. 12. Petitioner in Crl.M.P.No.1367/2021 seeks for examining the mobile phone seized from the 1[st] accused by the ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ## **`9`** Forensic Laboratory to get the phone location on 05.06.2020. The particulars called for is impracticable to be obtained. Court below has rightly declined the prayer and therefore, this Court is declined to interfere with. Therefore Crl.M.C.No.1407/2022 is liable to be dismissed and is dismissed. 13. With regard to the prayers of the petitioners to get the details of the application submitted at the time of applying for the SIM cards, this Court finds that the prayer can be granted. The prayers of the petitioner (2[nd] accused) for getting call details and CDR details are dismissed. Accordingly, Crl.M.C.No.1319/2022 is allowed in part. The impugned order in Crl.M.P.No. 1369/2021 is set aside to the extent it dismisses the prayer of the petitioner for production of details while applying for SIM Cards. Crl.M.P.No.1369/2021 is allowed in part and additional respondents 2 and 3 are directed to produce the application submitted by PWs 1 to 5 while applying for SIM Cards in mobile numbers 9497934328 (PW1), 9497975608 (PW2), 9497934271 (PW3), 9496310128 (PW4) and 8089089404 (PW5). Crl.M.C.No.1320/2022 is allowed in part. The impugned order in Crl.M.P.No.62/2022 is set aside to ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ``` 10 ``` the extent it dismisses the prayer of the petitioner for production of details while applying for SIM Cards. Crl.M.P.No.62/2022 is allowed in part and the 1[st] respondent is directed to produce the application submitted by accused Nos. 1 and 2 while applying for SIM Cards in mobile numbers 8943371964 (A1) and 7034516163 (A2). The particulars called for vide directions above shall be furnished to the court below within one month from this day. ``` Sd/- ``` ``` MARY JOSEPH ``` ``` JUDGE ``` ``` MJL ``` ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC NO.1319/2022`** ## `PETITIONER’S ANNEXURES:` ``` ANNEXURE-ATRUE COPY OF THE STATEMENT DATED 11-11-2021 FILED BY THE PETITIONER ANNEXURE- BTRUE COPY OF THE PETITION DATED 11-01-2022 ANNEXURE- CTRUE COPY OF THE PETITION DATED 14-12-2021 ANNEXURE- D CERTIFIED COPY OF THE ORDER DATED 09-02-2022 IN CRL. M. P. NO. 1369/2021 IN S.C. NO.552/2020 PASSED BY THE SPECIAL COURT FOR S.C./ST (POA) & NDPS ACT CASES, MANJERI. ``` ## `RESPONDENTS’ ANNEXURES: NIL` ``` TRUE COPY ``` ``` PA TO JUDGE ``` ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ## **`12`** ## **`APPENDIX OF CRL.MC 1320/2022`** ## `PETITIONER’S ANNEXURES` ``` ANNEXURE -ATRUE COPY OF THE STATEMENT DATED 11-11-2021 ANNEXURE -BTRUE COPY OF THE PETITION DATED 11-01-2022 ANNEXURE -CTRUE COPY OF THE PETITION DATED 14-12-2021 ANNEXURE -DCERTIFIED COPY OF THE ORDER DATED 09.02.2022 IN CRIMINAL MISCELLANEOUS PETITION NO. 62/2022 IN S.C NO. 552/2020 PASSED BY THE SPECIAL COURT FOR SC/ST (POA) & NDPS ACT CASES, MANJERI ``` ``` RESPONDENTS’ANNEXURESNIL ``` ``` TRUE COPY ``` ``` PA TO JUDGE ``` ``` Crl.M.C.Nos.1319, 1320 and 1407 of 2022 ``` ## **`13`** ## **`APPENDIX OF CRL.MC 1407/2022`** ## `PETITIONER’S ANNEXURES:` ``` ANNEXURE 1CERTIFIED COPY OF THE ORDER DATED 09.02.2022 IN CRL. MP NO.1367/2021 IN SC NO.552/2020 OF SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI ANNEXURE 2TRUE COPY OF THE RELEVANT PAGES OF SEIZURE MAHAZAR ``` ``` RESPONDENTS’ ANNEXURES: NIL ``` ``` TRUE COPY ``` ``` PA TO JUDGE ```