State of Kerala v Anwarsadath

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV WEDNESDAY,THE2[ND]DAYOFAUGUST2023/11THSRAVANA,1945 CRL.MCNO.3433OF2020 ``` ``` AGAINSTTHEORDERINSCNO.1709/2019OFIIADDITIONAL DISTRICTCOURT,THIRUVANANTHAPURAM ``` ## **`PETITIONER/RESPONDENT IN CR.L.M.P :-`** ``` STATEOFKERALA ``` ``` REPBYTHEASSISTANTEXCISECOMMISSIONER,EXCISE INTELLIGENCEANDINVESTIGATIONBUREAU,SOUTHZONE, THIRUVANANTHAPURAM ``` ``` BYSRI.VIPINNARAYAN,SR.PP ``` ``` RESPONDENT/PETITIONERINCRL.M.P/2NDACCUSED:- ``` ``` ANWARSADATH,AGED31YEARS S/O.ALI,CHERUTHADATHILHOUSE, VAZHAKALA,KAKKANAD, ERNAKULAMDISTRICT-682021 ``` ``` BYADVS. BALAMURALIKP MANUTOM(K/725/2007) ``` ``` SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 02.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.3433 of 2020 2 ## **ORDER** This petition under Section 482 of the Code of Criminal Procedure is filed by the State challenging the common order dated 07.02.2020 in Crl. M.P.No.23 of 2020 and Crl. M.P.No.158 of 2020 passed by the Court of the Additional Sessions Judge-II, Thiruvananthapuram, in S.C.No.1709 of 2019. 2. Crl. M.P.No.23 of 2020 is an application filed by the 2nd accused in the aforesaid case seeking issuance of directions to the Station House Officer, Puthukadu Police Station, to seize the CC TV footage from the Paliekkkara Toll Plaza, Thrissur, for the period mentioned in the application. 3. Crl. M.P.No.158 of 2020 is filed by the 2nd accused seeking a direction to the call service providers to produce the Call Data Records (CDR) and mobile tower location details of CWs.1, 5, and 16 for the period from 22.05.2019 to 24.05.2019. 4. The learned Sessions Judge, by the impugned order, has directed the Station House Officer, Puthukadu Police Station, to seize the Crl.M.C No.3433 of 2020 3 CCTV footage, as prayed for. Direction was also issued to M/s.Bharat Sanchar Nigam Limited and M/s.Bharati Airtel Ltd to produce the call data records and mobile tower location details of the petitioner’s mobile No.9188890668 (BSNL). It appears that the order passed by the learned Sessions Judge in Crl.M.P No.158 of 2020 has not been challenged. This Court is only concerned with the order passed by the learned Sessions Judge in Crl.M.P.No.23 of 2020. 5. Before adverting to the rival contentions, brief facts of the case are to be noticed. S.C.No.1709 of 2019 has arisen from Crime No.06 of 2019 of the Excise Circle Office, Thiruvananthapuram. The accused in the aforesaid case face prosecution for having committed offences punishable under Sections 8(c), 20(b)(ii)(C), 20(b)(ii)(B), 29 & 32B(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 6. The crux of the prosecution allegation is that information was received by the Excise Enforcement and Anti Narcotic Special Squad that the contraband was being transported. On 23.05.2019, the vehicle in which the accused Nos.1 to 3 was travelling and intercepted, and the accused were found to be transporting 11.210 Kg of Hashish Oil and 2.530 Crl.M.C No.3433 of 2020 4 Kg of Ganja. The specific allegation is that the contraband was concealed inside the door panels of the car in which the accused were travelling. The accused were apprehended, and some weapons were seized along with some currency. 7. The contention of the petitioners is that the prosecution case is a cooked-up story. In the application filed before the learned Sessions Judge, it was contended that the accused were taken into custody by the Excise Officials after 11.30 p.m., on 22.5.2019 at the Paliyekkara Toll Plaza. This was consequent in a minor altercation between the petitioners and the owner of a Toyota Innova Car bearing Reg. No. Kl-16-E-910. They stated that two officers of the Excise Department boarded the car in which the petitioners were travelling and they were directed to proceed to Athani. It is stated that on reaching the said place, persons from the Innova car together with Excise officers boarded the car in which the petitioners were travelling and started to threaten them. It is further alleged that the petitioners were subjected to torture and they were illegally detained at the office of the Excise Inspector till the morning of 24.5.2019. The petitioner contends that they made a request before the Additional Commissioner of Excise for connecting the CCTV footage of Crl.M.C No.3433 of 2020 5 Paliekkara Toll Plaza for the period from 11 pm to 12 am of 22.5.2019 to prove their innocence. It was contended that if Call Data Records, Mobile Tower Location and CCTV footage are obtained, the innocence of the petitioners would be revealed. It would also come out that no incident of the nature alleged has taken place on 23.5.2019. 8. The State opposed the prayer before the Court of Session. The contention was that the accused had no right to interfere with the investigation and cannot dictate the manner in which the investigation was to be carried out. 9. The learned Sessions Judge relying on the observations made by the Apex court in **Mohan Lal v. State of Punjab[1]** allowed the applications. 10. Sri.Vipin Narayan, the learned Senior Pubic Prosecutor, submitted that the order passed by the learned Sessions Judge cannot be sustained. According to the learned counsel, the accused have no right whatsoever to interfere with the investigation. They also have no authority to direct the investigating officer to seize certain records in the manner they wish. According to the learned Public Prosecutor, the case was > 1 2018 (3) KLT 852 (SC) Crl.M.C No.3433 of 2020 6 registered by the Excise and the learned Sessions Judge could not have invoked the powers under Section 91 of the Cr.P.C and issued directions to the police officer concerned to seize the CCTV footage from a private individual. According to the learned Public Prosecutor, the complaint was lodged before the jurisdictional court in the year 2019 and the petition was filed much later. It is further submitted that Section 91 of the Cr.P.C cannot be invoked to conduct the roving enquiry into the matter and also to collect materials for or on behalf of the accused. 11. I have considered the submissions advanced and have perused the records. 12. The prosecution alleges that the petitioners were in possession of a commercial quantity of narcotic substances. According to the prosecution, the offence was detected at 9:30 p.m. on May 23, 2019. To substantiate their claim that the prosecution's allegations are fabricated, the petitioners filed an application to seize the CCTV footage of the visuals captured between 11:00 p.m. and midnight on May 22, 2019. The petitioners allege that they were taken into illegal custody on May 22, 2019, and that if that be the case, the prosecution's allegation that they were apprehended on the following day is a fabricated version. The Crl.M.C No.3433 of 2020 7 learned Sessions Judge allowed the application after being convinced of its merits. 13. I am not able to fathom the apprehension of the State in complying with the directives issued by the learned Sessions Judge. It is now well-established that a fair trial for an accused is a constitutional guarantee enshrined under Article 21 of the Constitution. A fair trial would be a hollow promise if the investigation in an NDPS case is not fair or raises serious questions about its fairness. A fair trial is essential to uphold the rule of law and to ensure that the accused is not deprived of their fundamental rights. In an NDPS case, the reverse burden of proof places a greater responsibility on the prosecution to demonstrate that the investigation was fair and impartial. If the investigation is unfair, the accused will be at a significant disadvantage. In the nature of the reverse burden of proof, the onus will be on the prosecution to demonstrate on the face of it that the investigation was fair and judicious, with no circumstances that may raise doubts about its veracity. The obligation to prove beyond a reasonable doubt encompasses a fair investigation, and without it, there can be no fair trial. If the investigation itself is unfair, requiring the accused to demonstrate prejudice would be fraught with the Crl.M.C No.3433 of 2020 8 danger of vesting arbitrary powers in the police, which could lead to false implications. In such a case, the investigation would become an empty formality and a farce. This interpretation must therefore be avoided. The State should therefore not be apprehensive of complying with the learned Sessions Judge's directives. The directives are in line with the principles of a fair trial and are essential to ensure that the accused receives justice. 14. Section 91 of the Code empowers inter alia any court to issue summons to a person in whose possession or power a document or a thing is believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Cr.P.C. The petitioners who are undergoing incarceration are not in a position to requisition the CCTV visuals or the CDR details from the custodians. They also cannot be asked to wait till they get an opportunity to adduce evidence as by that time there is no guarantee that the service provider, would retain the CDR. The same is the case with the CCTV footage as well. The accused are at the mercy of the court and it is with a view to prove their innocence that the request was made to collect the footage as well as the CDR. The learned Sessions Judge by a well-considered order has allowed the same. It would Crl.M.C No.3433 of 2020 9 be a travesty of justice if due to the delay that has been occasioned, the records and footage sought by the accused turns out to be unavailable. In the facts and circumstances, I find absolutely no reason to interfere with the well-considered order passed by the learned Sessions Judge. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** SMA Crl.M.C No.3433 of 2020 10 ## **`APPENDIX OF CRL.MC 3433/2020`** ## **`PETITIONER ANNEXURES :-`** ``` ANNEXURE-ATHETRUECOPYOFTHECOMMONORDERDATED07.02.2020 INCRLM.P.NO.23/202INS.C.NO1709/2019INTHE COURTOFTHEADDITIONALSESSIONSJUDGE-II, THIRUVANANTHAPURAM ```