Rahul v. State of Kerala and Kodakara Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 CRL.MC NO. 9401 OF 2022 AGAINST THE ORDER/JUDGMENT IN SC 781/2021 OF SESSIONS COURT -IV, THRISSUR** ## **PETITIONER/S:** RAHUL AGED 27 YEARS S/O PRAHLADAN, PATHALIL VEEDU, MALAYAVAYAL DESOM, PALLIMON, KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691506 BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER KODAKARA POLICE STATION, THRISSUR DISTRICT, PIN - 680684 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** GP M.C.ASHI **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.02.2023, THE COURT ON 03.02.2023 PASSED THE FOLLOWING:** Crl.M.C.No.9401 of 2022 -2- ## **ORDER** Dated this the 03[rd] day of February, 2023 The petitioner is the 3[rd] accused in S.C. No. 781 of 2021 pending on the files of the Additional Sessions Judge-IV, Thrissur. The case originated from a crime registered by the Kodakara Police Station against the petitioner and two others alleging commission of offences under Section 20(b)(ii)C, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution case is that, during patrol duty, the police apprehended the accused at about 10.40 a.m. on 28.06.2021 while they were travelling in an Toyota Innova Car from Nellayi to Chalakudy side. On searching the vehicle, 85.200 kgs. of dried ganja was found out and recovered. 2. The trial of the sessions case has Crl.M.C.No.9401 of 2022 -3- commenced and has reached the defence evidence stage. Thereupon petitioner filed Annexure 4 petition under Section 233 Cr.P.C. seeking to summon the call data records of the investigating officer, (PW 21), so as to ascertain the tower location of his mobile phones on 27.06.2021 and 28.06.2021. The other documents, of which production was sought, are the GD maintained at the police station from 27.06.2021 to 29.06.2021, Duty Note Book of certain officers and constables and the Thondi Register of 28.06.2021 and 29.06.2021. By Annexure 5 order, the learned Sessions Judge allowed the petition in part by directing the SHO, Kodakara Police Station to produce GD from the date 27.06.2021 to 29.06.2021, Duty Note Book and Thondi Register dated 28.06.2021 and 29.06.2021. The prayer for production of documents containing the call log and tower location of the investigating officer was rejected on the premise that the incident Crl.M.C.No.9401 of 2022 -4- having occurred in the month of June, 2021, the tower locations and call log would not be available with the telecom operators. The court also held that, furnishing of such details may lead to disclosure of the identity of the informants of the crime. Aggrieved by the rejection, this Crl.M.C. is filed. 3. Adv.Saipooja, appearing for the petitioner, contended that the specific defence put up by the petitioner is that the accused were falsely implicated due to the animosity of the investigating officer, based on an incident that had occurred at Ukkadom near Coimbatore on 27.06.2021 when the car in which the accused were travelling nearly collided with the vehicle in which the investigating officer and others were travelling. The incident had occurred due to the mistake of the driver of the vehicle in which the investigating officer was travelling. Hence, the petitioner and others abused that driver using Crl.M.C.No.9401 of 2022 -5- filthy language This resulted in the passengers alighting and verbally abusing and attempting to assault each other. At that point, the investigating officer revealed his identity and forcibly took the petitioner and others into custody and later foisted the crime on them. In order to prove that the investigating officer and the petitioner had been within the same tower location near Coimbatore, it is essential to produce and mark the tower location details of the investigating officers' mobile phones. This crucial piece of evidence is being shut out by rejecting the prayer in that regard. Reliance is placed on the Apex Court decision in _**Sureshkumar v Union of India [2014 SCC OnLine SC 1833]**_ , wherein, it is held that the prayer for summoning of call details for the purpose of determining the exact location of the officers concerned cannot be denied. Following the decision in Crl.M.C.No.9401 of 2022 -6- _**Sureshkumar**_ , a Division Bench of this Court also issued similar direction in _**Gokul Raj v. State of**_ ## _**Kerala [2021(4) KLT OnLine 1176]**_ . 4. Adv.Ashi, learned Public Prosecutor stoutly opposed the prayer for production of call details contending that furnishing of such details, will compromise the identity of the informant in the case and also reveal other secret information. It is contended that a general suggestion during cross-examination of the investigating officer cannot be the basis for seeking production of documents. 5. Although I find merit in the contention of the Public Prosecutor that, rather than setting up any concrete defence, what was done during the cross-examination of the investigating officer was to put a general suggestion regarding an alleged scuffle between the petitioner and the investigating officer at Coimbatore. Even if so, Crl.M.C.No.9401 of 2022 -7- I am bound to allow the prayer for production of the tower location details in view of the decision in _**Sureshkumar**_ , the relevant portion of which is extracted hereunder; _“8. All that we are concerned with is whether call details which the appellant is demanding can be denied to him on the ground that such details are likely to prejudice the case of the prosecution by exposing their activities in relation to similar other cases and individuals. It is not however in dispute that the call details are being summoned only for purposes of determining the exact location of the officers concerned at the time of the alleged arrest of the appellant from Yashica Palace hotel near the bus stand. Ms. Makhija made a candid concession that any other information contained in the call details will be of no use to the appellant and that the appellant would not insist upon disclosure of such information. That in our opinion simplifies the matter inasmuch as while the call details demanded by the appellant can be summoned in terms of Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the location of officers 8_ Crl.M.C.No.9401 of 2022 -8- _concerned need not contain other information concerning such calls received or made from the telephone numbers concerned. In other words if the mobile telephone numbers called or details of the callers are blacked out of the information summoned from the companies concerned it will protect the respondent against any possible prejudice in terms of exposure of sources of information available to the Bureau. Interest of justice would in our opinion be sufficiently served if we direct the Trial Court to summon from the Companies concerned call details of Sim telephone No. 9039520407 and 7415593902 of Tata Docomo company and in regard to Sim No. 9165077714 of Airtel company for the period 24.02.2013 between 4.30 to 8.30 p.m. We further direct that calling numbers and the numbers called from the said mobile phone shall be blacked out by the companies while furnishing such details.”_ **==> picture [380 x 13] intentionally omitted <==** directed production of the tower details, despite being of opinion that it would be a futile exercise, since there is no mandate that an officer having subscribed to a mobile number Crl.M.C.No.9401 of 2022 -9- carries the number wherever he goes. Although the petitioner has sought production of tower location details of the mobile numbers 9497962523, 9846808693 and 9846805517, there is no requirement of producing the tower location details of mobile number 9846805517, since the investigating officer has stated that the said number does not belong to him. I also make it clear that, while seeking the production of tower location details of the other two numbers, the telecom service provider shall be directed to black out/mask all other details. Accordingly, the Crl.M.C is allowed as under; (i) The impugned order to the extent it rejected the prayer for summoning the tower location details of mobile numbers; 9497962533 and 9846808693, is quashed. (ii) The court below is directed to summon the tower location details of mobile numbers; 9497962523 and 9846808693 from Crl.M.C.No.9401 of 2022 -10- 27.06.2021 to 28.06.2021. (ii) While producing the details, the Airtel Company shall be directed to black out the call details and produce only the tower location details. Sd/- **V.G.ARUN JUDGE** Scl/ Crl.M.C.No.9401 of 2022 -11- ## **APPENDIX OF CRL.MC 9401/2022** ## PETITIONER ANNEXURES |Annexure|1|TRUE COPY OF THE FINAL REPORT IN CRIME| |---|---|---| |||NO. 278/2021 OF KODAKARA POLICE| |||STATION| |Annexure|2|TRUE COPY OF THE STATEMENT FILED BY| |||THE ACCUSED NO.1 IN THE CRIME BEFORE| |||THE COURT BELOW UNDER SECTION 313(5)| |||OF CRPC| |Annexure|3|TRUE COPY OF THE DEPOSITION OF PW21 IN| |||S C. NO. 781 OF 2021| |Annexure|4|TRUE COPY OF THE PETITION FILED BY THE| |||PETITIONER HEREIN BEFORE THE| |||ADDITIONAL SESSIONS JUDGE-IV, THRISSUR| |Annexure|5|TRUE COPY OF THE ORDER DATED| |||11.11.2022 IN CRL.M.P NO. 3311/2022 IN| |||SC NO. 781/2021 PASSED BY THE| |||ADDITIONAL SESSIONS JUDGE-IV, THRISSUR|