Gokul Raj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 9[TH] DAY OF JULY 2021 / 18TH ASHADHA, 1943** **CRL.MC NO.53 OF 2021** **CRIME NO.5/2020 OF ATTINGAL EXCISE CIRCLE OFFICE, THIRUVANANTHAPURAM** **AGAINST THE ORDER DATED 22.12.2020 IN CRMC NO.2309/2020 OF THE** ~~**I**~~ **ST ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM** ## **PETITIONER/PETITIONER/PETITIONER/3RD ACCUSED:** **GOKUL RAJ, AGED 26 YEARS, S/O.RAJAN, CHITHIRA, NEAR GIRLS HIGH SCHOOL, ATTINGAL, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV.SRI.NIREESH MATHEW** ## **RESPONDENTS/STATE & ADDL.RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **2 NODAL OFFICER, BSNL, OFFICE OF THE CHIEF GENERAL MANAGER, PMG JUNCTION, THIRUVANANTHAPURAM-695 033.** *** 3 NODAL OFFICER, RELIANCE COMMUNICATIONS LIMITED, A & P ARCADE, SA ROAD, KADAVANTHRA, ERNAKULAM, KOCHI-682 016.** *** (3RD RESPONDENT DELETED AS PER ORDER DATED 01/02/2021 IN CRL.M.A.NO.3/2021 IN CRL.M.C.NO.53 OF 2021).** Crl. M.C. No.53/2021 2 **4 NODAL OFFICER, BHARTI AIRTEL LIMITED, SL AVENUE, NH BYPASS, KUNDANNOOR JUNCTION, MARADU (PO.), ERNAKULAM, KOCHI-682 304.** **BY ADVS. SRI.S.U.NAZAR, SENIOR PUBLIC PROSECUTOR SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER SRI.MATHEWS K.PHILIP, SC SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN SRI.JAI MOHAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl. M.C. No.53/2021 3 **K. VINOD CHANDRAN & ZIYAD RAHMAN A.A., JJ. ------------------------------------Criminal M.C.No.53 of 2021** **------------------------------------Dated this the 9[th] day of July, 2021** ## **O R D E R** ## **K. Vinod Chandran, J.** **The above case is placed before us on a reference made by a learned Single Judge of this Court. A Division Bench of this Court in** _**Basheer K. v. C.K.Usman Koya [2021 (2) KHC 432 (DB)]**_ **held that a reference by a learned Single Judge is not of a question, but the case itself. In such circumstances, we heard the issue, which was the subject of reference and the case on merits.** **2. Sri.Nireesh Mathew, learned Counsel, appeared for the petitioner and Sri.S.U.Nazar, learned Public Prosecutor, appeared for the State. Respondents 2 & 4 were represented by the respective Standing Counsel.** **3. On facts, the petitioner is the 3[rd] accused in Crime No.5 of 2020 of Attingal Excise Circle** Crl. M.C. No.53/2021 4 **Office, pending before the Additional Sessions Court-I, Thiruvananthapuram. The petitioner filed an application as produced at Annexure-A, seeking directions to respondents 2 & 4 to produce the details regarding the name of the subscriber and the tower location of two mobile numbers respectively said to be used by Circle Inspectors of Excise, Attingal, Varkala and Excise Range Inspector of Kilimanoor. From the 4[th] respondent, details were sought of the mobile used by the petitioner. The learned Magistrate, by Annexure-B order, rejected the prayer relying on the decision of a learned Single Judge in** _**[Nimith.C. v. State of Kerala (2014 (3) KHC 771)]**_ **. The petitioner filed the Crl.M.C. against the said order pointing out that the seizure of contraband and arrest alleged to have been made in the crime is fictitious, which would be proved by the tower location of the mobile numbers used by the Officers.** **4. On the brief facts, regarding the crime registered, the C.I. of Excise, Attingal on 22.08.2020 at about 4.50 pm came to the house of the 1[st] accused** Crl. M.C. No.53/2021 5 **on information received of cannabis being stashed away in his house. On approaching the house two vehicles were seen exiting, which were waylaid. The two vehicles were driven by A1 & A2, from inside of which cannabis was recovered. Subsequently, on a search of the house, cannabis was found stashed away inside an almirah. On information received on the interrogation of A1 & A2, the Officers came to the restaurant of A4, in front of which a lorry was parked. A4, who was sitting inside the lorry, ran away. On searching the lorry, again cannabis was recovered. Inside the restaurant, A3, the petitioner herein was handling two gunny bags, which contained larger quantities of cannabis. A total of about 40Kg. of cannabis was recovered, based on which crime was registered. The mobile numbers, details of which are sought for, are of the officials of the Excise Department, who carried out the raid.** **5. Sri.Nireesh Mathew points out that the decision relied on by the Magistrate is concerning disclosure of call details in the official mobile** Crl. M.C. No.53/2021 6 **phone, which was declined due to its confidential nature. The petitioner herein does not seek the call details and only request the subscriber name and the tower location, so as to convince the Court about the falsity of the allegation levelled, of seizure and arrest. Learned Counsel would also rely on two decisions of learned Single Judges of this Court;** _**Crl.M.C.4586 of 2017 dated 31.08.2017 [Akhil Raj v. State of Kerala]**_ **and Crl. M.C. No.685 of 2019 dated 01.02.2019 Antony v. State of Kerala, wherein call details of officials were allowed to be called for. It is pointed out that the earlier order was passed by the very same learned Single Judge, who referred the matter for an authoritative pronouncement by a Division Bench. The reference also is on the question whether the call details of police officers can be furnished to the accused since the details of informants would be leaked to the accused jeopardizing prevention and detection of crimes. The reference order was on a misapprehension that the petitioner had sought for call details. Sri.Nireesh Mathew asserts** Crl. M.C. No.53/2021 7 **that no call details are requested by the petitioner and he requires only the subscriber name and the tower location. It is also pointed out that the Supreme Court has made an authoritative pronouncement on similar circumstances in** _**Sureshkumar v. Union of India**_ _**[Manu/SC/1304/2014] [ 2015 (3) RCR (Crl.) 340]**_ **.** **6. Sri.S.U.Nazar for the State points out that revealing such information of the Investigating Officers [for brevity, 'the I.O.'] would jeopardize not only the effective prosecution of the subject case but also prejudicially affect the prosecutions generally, where they are the detecting officers. Sections 124 and 125 of the Indian Evidence Act, 1872 is read over to urge that the prayer made by the petitioner is squarely hit by the interdiction in the above provisions. Sri.Nazar relies on** _**State of Kerala v. Chacko [1967 KLT 1151 (FB)]**_ **, wherein it was held that the privilege under Section 125 would be available to Excise Inspectors also. Sri.Nazar also relies on the decision of the High Court of Bombay reported in** _**Emperor v. Bilal Mahomed [1940 ILR 768**_ Crl. M.C. No.53/2021 8 _**(Bombay Series)]**_ **. The reference, if answered in favour of the petitioner, would put into peril the criminal justice administration of the State and the crime-fighting agencies will not have the benefit of informants, which is crucial in preventing and eradicating crime. The learned Senior Prosecutor seeks rejection of the Crl.M.C.** **7. We will first deal with the question raised, on which there are conflicting judgments.** _**Nimith.C.**_ **[supra] was a case in which the accused sought production of call records of the official phone number used by the I.O on the ground that his arrest was not made as is evidenced from the records before the Sessions Court. The application was made in the course of the trial after the I.O was examined. In cross-examination, suggestive questions were put to the I.O. as to the usage of his official mobile and it was the specific statement of the I.O that he does not remember whether he carried the mobile with him at the time of the arrest. The Court found that the accused cannot get the call details or information regarding** Crl. M.C. No.53/2021 9 **the calls received by the police officer. In** _**Akhil Raj,**_ **[supra] the prayer was again for a direction to the service providers to preserve the documents regarding the call details of the mobile phone numbers mentioned in the application filed. There is nothing from the order to show that the call details sought for was of the mobile numbers belonging to the arresting or investigating officer. In** _**Antony**_ **[supra],** **another Single Judge issued similar directions, wherein also the seizure of contraband by the Police officials was alleged to be a falsity. The submission of the service providers, who were also impleaded therein, was that the call details of mobile numbers are preserved only for a year. The call details of the numbers, for two weeks from a specified date, were directed to be preserved and furnished before the Court, where the trial was scheduled. We have to notice that in all these cases the details were sought for at the time of trial and not at the time of filing a bail application, as is the case here.** **8.** _**Chacko**_ **and** _**Bilal Mahomed (both supra)**_ **do** Crl. M.C. No.53/2021 10 **not help the State, since there the specific details sought for was of the informant, based on which search and seizure was made. In the present case, the learned Counsel has categorically asserted that the petitioner is not seeking the call details and just wants to know the information regarding the subscriber name and the tower location at the crucial time. As we noticed, the learned Counsel also relies on** _**Sureshkumar (supra)**_ **. The Hon'ble Supreme Court was also concerned with a seizure made under the Narcotic Drugs and Psychotropic Substances Act. The request for call details made was of the officers, who arrested the accused. The Hon'ble Supreme Court found that the call details are summoned only to determine the exact location of the Officers. The judgment was also on the concession made by the Counsel for the accused that he would not seek for the call details and would not insist upon disclosure of such information. Since the purpose was only to determine the location of Officers, it was directed that the details of the callers be blacked out and produced before the Court.** Crl. M.C. No.53/2021 11 **9. In all the above cases, we reiterate, the call details were summoned to be looked into at the time of trial. We specifically notice the contention in N** _**imith.C.**_ **(supra) that the I.O. was categorical in his statement that he does not remember whether the mobile was carried by him during the arrest. We believe that it would be a futile exercise since there is no mandate that an Officer having subscribed to a mobile number carries that number wherever he goes, even if it is an official number supplied to him by the State. The mere fact that the mobile phone was in the tower location of another place and even that calls had been received or placed would not enable the Court to find positively that the Officer was not present in the place of arrest. However, these are matters to be considered at trial and we respectfully follow the judgment of the Hon'ble Supreme Court insofar as it directs production of the call details, with the details of the callers (to and from) blacked out, only to ascertain the tower location of the mobile phones.** Crl. M.C. No.53/2021 12 **10. We make it clear that such call details if at all directed to be produced, shall be only produced directly before the Court by the service provider in sealed covers blacking out the mobile numbers, from which the calls were received (incoming) or to which calls were placed (outgoing). The same shall only be used to confront the witness from the service provider who alone can identify the tower location from the document. We also say a word of caution insofar as the trial Courts having to look at the totality of the 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)**_ **.** _**Akhil Raj**_ **and** _**Antony**_ **(both supra) are found to be wrongly decided and overruled.** _**Nimith.C. (supra)**_ **specifically** Crl. M.C. No.53/2021 13 **sought the call details which was declined, rightly according to us.** **Insofar as the present case, it is at the stage of the bail application the aforesaid application has been filed. We find no reason for the Court below to go into the call details at the stage of a bail application. We also notice that the petitioner has not made the subscribers of the mobile numbers, parties to the writ petition.** **For both the above-said reasons, we reject the** **Crl. M.C.** **Sd/-** **K. VINOD CHANDRAN, JUDGE** **Sd/-** **ZIYAD RAHMAN A.A., JUDGE** **sp** **//True Copy//** **P.A. To Judge** Crl. M.C. No.53/2021 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A COPY OF THE PETITION IN CRIMINAL M.P. NO.1369/2020 IN CRL.M.C.NO. 2309/2020. ANNEXURE B COPY OF THE ORDER PASSED BY THE COURT OF THE ADDITIONAL SESSIONS JUDGE-1, THIRUVANANTHAPURAM, IN CRL.M.P.NO.1369/2020 IN CRL.M.C.NO.2309/2020 DATED 22.12.2020.**