Bismitha v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944** **WP(CRL.) NO. 981 OF 2022** **CRIME NO.1790/2021 OF CHIRAYINKEEZHU POLICE STATION, TRIVANDRUM S.C.NO.513/2022 ON THE FILE OF THE ADDITIONAL SESSIONS COURT-II,** ## **TRIVANDRUM** ## **PETITIONER:** **BISMITHA AGED 21 YEARS HOUSE NO.59/321, 1ST MAIN, 5TH CROSS DINNUR, R.T. NAGAR POST, BANGLORE NORTH, BANGLORE, KARNATAKA, PIN - 560032 BY ADV M.J.SANTHOSH** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001** - **2 VINEESH V.S. SUB INSPECTOR OF POLICE, CHIRAYINKEEZHU POLICE STATION, NOW WORKING AS SUB INSPECTOR OF POLICE, VENJARAMOODU POLICE STATION, THIRUVANATHAPURAM, PIN - 695607** - **3 MANOJ R. THAHASILADAR, CHIRAYINKEEZHU TALUK OFFICE, NOW WORKING IN OFFICE OF COMMISSIONER OF LAND REVENUE, THIRUVANATHAPURAM, PIN - 695033** - **4 NODAL OFFICER DGM NETWORK OPERATION, CONSUMER MOBILITY, BSNL BHAVAN, ERNAKULAM, PIN - 682016** - **5 THE NODAL OFFICER IDEA (VI-VODAFONE) CELLULAR LIMITED, V.J. TOWERS, VYTTILA P.O. ERNAKULAM, PIN - 682019** - ***ADDL R6 NODAL OFFICER RELIANCE JIO INFO-COM LTD, UKKALAKAATTU KARIYATTU TOWER, NEAR YATHRI NIVAS, MAMANGALAM, ERNAKULAM *ADDL R6 IMPLEADED AS PER ORDER DATED 7/12/2022 IN IA 1/22** **2** **WP(CRL.) NO. 981 OF 2022** **BY ADVS. SMT.I. SHEELA DEVI P.SATHISAN M.J.SANTHOSH DONA AUGUSTINE SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(CRL.) NO. 981 OF 2022** **3** ## **JUDGMENT** Dated this the 19[th] day of December, 2022 This writ petition (criminal) has been filed under Article 226 of the Constitution of India by the wife of the third accused in crime No.1790/2021 of Chirayinkeezhu police station, wherein the third accused alleged to have committed offence punishable under Sections 20(b)(ii)B, 20(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘NDPS Act’ for convenience), on the allegation that on 24.09.2021 at about 4.05 pm, when search was conducted in the house of the first accused, 63.60 grams of MDMA was recovered. Further, when search was conducted in a car bearing registration No.KL-16-L-2419 parked on the premises of the said house, 2.100 grams of Ganja also was recovered. **4** ## **WP(CRL.) NO. 981 OF 2022** ## 2. The main prayer in this writ petition is as under: _“1. Issue a writ of mandamus directing the 4[th] and 5[th] respondent to preserve the tower location and cell-id of mobile phone numbers of 9497980105 (BSNL), 9946660471 (Vodafone), 9447221530 (BSNL) from 02.00 pm to 09.00 pm on 24/09/2021, along with certification under section 65B of Evidence Act and also the address details of person in whose name this SIM card are issued and to keep the document in safe custody to furnish those document before the trial court while summons being served during trial”._ 3. Heard the learned counsel for the petitioner, learned Public Prosecutor and the respective learned counsel for R4, R5 and additional R6. 4. It is pointed out by the learned counsel for the petitioner that call records in this case shall be directed to be kept in the safe custody to furnish the same to the trial court while summoning R4, R5 and additional R6. He has placed **WP(CRL.) NO. 981 OF 2022** **5** a decision of the Apex Court reported in [MANU/SC/1304/2014], _**Suresh Kumar v. Union of India**_ to substantiate his point that giving such a direction is legally permissible so that the petitioners can establish the exact location of the officers concerned at the time of the alleged arrest of the accused. On perusal of the above decision, the Apex Court directed the trial court to summon the call details sought for. 5. The learned Public Prosecutor placed a decision of the Division Bench of this Court reported in [2021 (4) KHC 143 : 2021 (2) KLD 30 : 2021 KHC OnLine 423 : 2021 (4) KLT OnLine 1176], _**Gokul Raj v, State of Kerala & Ors**_ **.** to contend that a Division Bench of this Court, after referring various decisions on this point, including **Suresh Kumar’s** case ( _supra_ ) observed as under: _“We also say a word of caution insofar as the trial Courts having to look at the totality of the_ **WP(CRL.) NO. 981 OF 2022** **6** _circumstances to decide on the falsity of an arrest or seizure; which cannot be based on the mobile location alone. An officer would not have carried his mobile or it could be used by someone else and there could be numerous such circumstances that could make the exercise a futile one. As for the call details containing the details of callers, we find that the same cannot be permitted as has been held by the Hon’ble Supreme Court in_ _**Sureshkumar (** supra).”_ 6. The respective learned counsel appearing for respondents 4, 5 and 6 are conceded that the data sought to be preserved are now in safe custody of them. 7. The question as to whether mobile phone tower location is the final word in so far as the place of the officers who arrested the accused is concerned, the same depends on the substantive evidence and it is not safe to hold that mobile tower location will always be a place where the mobile phone owners/users are present. However, there is no harm in preserving the data as sought for, particularly in **WP(CRL.) NO. 981 OF 2022** **7** view of the submission made by the respective counsel appearing for respondent Nos.4, 5 and 6 that those data are available and can be kept in safe custody. In the result, this writ petition is allowed. The respondent Nos.4, 5 and 6 are directed to preserve the tower location and cell-id of mobile phone numbers 9497980105 (BSNL SIM), 9946660471 (Vodafone SIM) and 9447221530 (Reliance Jio SIM) from 02.00 pm to 09.00 pm on 24.09.2021, along with certification under section 65B of Evidence Act and also the address details of person in whose name this SIM card are issued and to keep the document in safe custody to furnish document before the trial court while summons being served during trial. ## **Sd/-** ## **A. BADHARUDEEN** ## **JUDGE** nkr **WP(CRL.) NO. 981 OF 2022** **8** ## **APPENDIX OF WP(CRL.) 981/2022** **PETITIONER EXHIBITS Exhibit-P1 THE TRUE COPY OF FIR IN CRIME NO.1790/2021 OF CHIRAYINKEEZHU POLICE STATION Exhibit-P2 THE TRUE COPY OF JUDGMENT IN W.P. (CRL). NO.856/2022 ABHILASH VS STATE OF KERALA**