W.P.(Crl.) No.852 of 2022 and W.P.(Crl.) No.856 of 2022, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 WP(CRL.) NO. 852 OF 2022** **CRIME NO.31/2021 OF EXCISE RANGE OFFICE** **S.C.NO.21/2011 ON THE FILE OF NDPS SPL.COURT, THODUPUZHA** ## **PETITIONERS/ACCUSED NOS.1 TO 4:** 1 ROSHITH I R AGED 37 YEARS SON OF RAVEENDRAN, ITTIYAMPURATHU HOUSE, MARATHOMPILLY, KODAKARA, THRISSUR, PIN - 680684 2 NITHIN KRISHNA AGED 24 YEARS SON OF JAYANTHAKUMAR, POOZHIKKUNNATHU HOUSE, VALAPPAD, CHAVAKKAD, THRISSUR., PIN - 680567 3 RIZWAN-UL-RAHMAN AGED 24 YEARS SON OF ABDUL RAHIM, PALAKKAL HOUSE, VALLIYALUKKAL, KANNIMANGALAM, THRISSUR, PIN - 680027 4 SHINAS M.S. AGED 23 YEARS SON OF SHARAFUDHEEN, MOOCHIKKATTIL HOUSE, VALIYALUKKAL, KANIMANGALAM, THRISSUR., PIN - 68027 BY ADV M.J.SANTHOSH ## **RESPONDENTS/RESPONDENTS 1 TO 7:** 1 THE STATE OF KERALA REP. BY SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001 2 REGHU P.K. EXCISE INSPECTOR, EXCISE RANGE OFFICE, ADIMALY, PIN - 685561 3 SHAIBU P.E. EXCISE CIRCLE INSPECTOR, NARCOTIC ENFORCEMENT SQUAD OFFICE, ADIMALY, PIN - 685561 4 DILEESH C.D., AGED 29 YEARS SON OF DHARMAPALAN, CHEMBAYIL HOUSE, CHAZHOOR, THRISSUR., PIN – 680571. _W.P(Crl.) Nos.852 & 856 of 2022_ 2 5 THE NODAL OFFICER 'IDEA (VI-VODAFONE)' CELLULAR LIMITED, V.J. TOWERS, VYTTILA P.O, ERNAKULAM, PIN - 682019 6 NODAL OFFICER DGM NETWORK OPERATION, CONSUMER MOBILITY, BSNL BHAVAN, ERNAKULAM, PIN - 682016 7 NODAL OFFICER RELIANCE JIO INFOCOM LTD, UKKALAKAATTU KARIYATTU TOWER, NEAR YATHRI NIVAS, MAMANGALAM, ERNAKULAM., PIN - 682024 BY ADVS. SATHISAN P. FOR R6 KRISHNAKUMARI K R G.HARIKUMAR (GOPINATHAN NAIR) DONA AUGUSTINE(K/180/2016) AKHIL SURESH(K/000576/2016) ANU BALAKRISHNAN NAMBIAR(K/936/2014) ATHUL M.V.(K/1539/2018) FOR R1 SR.PP-SRI.RENJIT GEORGE THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 23.09.2022 ALONG WITH WP(CRL).856/2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING: _W.P(Crl.) Nos.852 & 856 of 2022_ 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 WP(CRL.) NO. 856 OF 2022** ## **CRIME NO.447/2021 OF NEMAM POLICE STATION** ## **- S.C.NO.1344/2021 ON THE FILE OF ADDL.SESSIONS COURT II,** ## **TRIVANDRUM** ## **PETITIONER:** ABHILASH S.R. AGED 29 YEARS SON OF SUDHAN, THARISSIL HOUSE, KEEZHETHOTTAM, PERUMBAZHATHOOR, TRIVANDRUM, PIN – 695502. BY ADV M.J.SANTHOSH ## **RESPONDENTS:** 1 THE STATE OF KERALA REP. BY SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001 2 ANEESH ABRAHAM SUB INSPECTOR OF POLICE, NEMAM POLICE STATION, NOW WORKING IN THIRUVALLA POLICE STATION, THIRUVALLA, PATHANAMTHITTA, PIN - 689622 3 REVATHY WOMEN CIVIL POLICE OFFICER, NEMAM POLICE STATION, NOW WORKING IN THAMPANOOR POLICE STATION, THAMPANOOR, THIRUVANATHAPURAM, PIN - 695014 4 NODAL OFFICER BHARATI AIRTELL LIMITED, S.L. AVENUE, N.H. BYEPASS, KUNDANOOR JN. MARADU P.O, ERNAKULAM, PIN - 682304 5 NODAL OFFICER DGM NETWORK OPERATION, CONSUMER MOBILITY, BSNL _W.P(Crl.) Nos.852 & 856 of 2022_ 4 BHAVAN, ERNAKULAM, PIN – 682016. BY ADVS. SENIOR COUNSEL SANTHOSH MATHEW ARUN THOMAS(K/844/2007) SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 23.09.2022 ALONG WITH W.P(CRL).852/2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING: _W.P(Crl.) Nos.852 & 856 of 2022_ 5 ## _**A. BADHARUDEEN, J.**_ ================================ _W.P(Crl.) No.852 of 2022 and W.P(Crl.) No.856 of 2022_ ================================ _Dated this the 30[th] day of September, 2022_ ## _**J U D G M E N T**_ W.P(Crl.).No.852/2022 has been filed by the petitioners, who are accused Nos.1 to 4 in Crime No.31/2021 of Excise Range Office, alleging commission of offences under Section 22(b), 20(b) (ii)A and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as `NDPS Act'), now pending as S.C.No.21/2022, before the NDPS Special Court, Thodupuzha. In W.P(Crl.).No.856/2022, the petitioner is the brother of the 1 st accused in Crime No.447/2021 of Nemam Police Station alleging commission of offences under Section 20(b) (2c) and 29 pending as S.C.No.1344/2021 on the file of Additional Sessions Court-II, _W.P(Crl.) Nos.852 & 856 of 2022_ 6 Thiruvananthapuram. ## 2. In W.P(Crl.).No.856/2022, the petitioners seek the ## following reliefs: _“1. Issue a writ of mandamus directing the 4th and 5th respondents to preserve the tower location and cell-id of mobile phone numbers of 9995320454 (Bharati Airtell SIM), 9497980009 (BSNL SIM), 8547908414 (BSNL SIM) from 06.00 am to 04.00 pm on 28/03/2021, 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._ _2. Hon’ble court may be pleased to grant one week time to produce the English translation of Exhibit-P1._ _3. Issue such other writ or orders or directions, which this Hon’ble court may deem fit and proper in the interest of justice and circumstances of the case.”_ ## 3. Similarly in W.P(Crl.).No.852/2022 the petitioners seek the following reliefs: _“1) Issue a writ of mandamus directing respondent Nos. 4 to 6 to preserve the tower locations of SIM of mobile phone numbers of 9447336560 `Vodafone-Idea’, 7012933826 – SIM number of `Jio’,_ _W.P(Crl.) Nos.852 & 856 of 2022_ 7 _9567788161-SIM number of `Jio’, 8943696097-SIM number of `Vodafone-Idea’, 9605289727 - SIM number of `Vodafone-Idea’, 9946183899 – SIM number of `Vodafone –Idea’, 9400069538 – SIM mumber of BSNL, 9400069534 – SIM number of BSNL, from 09.00 pm on 20.11.2021 to 03.00 am on 21.11.2021, along with certification under section 65B(4) of Evidence Act and also the address details of person in whose name this SIM card is issued and to keep the document in safe custody to furnish those document before the trial court while summons being served during trial._ _2. Hon’ble court may be pleaded to grant one week time to produce the English translation of Exhibit-P1._ _3. Issue such other writ or orders or directions, which this Hon’ble court may deem fit and proper in the interest of justice and circumstances of the case.”_ 4. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. Learned Senior Advocate Santhosh Mathew appearing for the 4th respondent, also is heard. 5. It is pointed out by the learned counsel for the petitioners that call records in these cases shall be directed to be kept in the safe custody to furnish the same to the trial court while summoning respondents 4 and 5. He has placed a decision of the Apex Court reported in [MANU/SC/1304/2014], _**Suresh Kumar v.**_ _W.P(Crl.) Nos.852 & 856 of 2022_ 8 _**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. 6. 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 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_ _W.P(Crl.) Nos.852 & 856 of 2022_ 9 _callers, we find that the same cannot be permitted as has been held by the Hon’ble Supreme Court in_ _**Sureshkumar** (supra).”_ 7. The 4th respondent in this case appeared and submitted that Department of Telecommunication, Government of India issued certain mandatory directions detailing how telephone towers are to be located. At the same time, it is submitted by the learned counsel for the 4th respondent that the data sought for in the Writ Petitions has been available with the 4th respondent and the same can be preserved in accordance with the directions of this Court. 8. 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 datas as sought for, particularly in view of the submission made by the 4th respondent that those datas are available and can be kept in safe _W.P(Crl.) Nos.852 & 856 of 2022_ 10 custody. 9. In the result, i) Both the Writ Petitions are allowed ; ii) The 4th and 5th respondents in W.P(Crl).No.856/2022 are directed to preserve the tower location and cell-id of mobile phone numbers of 9995320454 (Bharati Airtell SIM), 9497980009 (BSNL SIM), 8547908414 (BSNL SIM) from 06.00 am to 04.00 pm on 28/03/2021, 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. iii) Respondents 5 to 7 in W.P(Crl).No.852/2022 are directed to preserve the tower location and cell-id of mobile phone numbers of 9447336560 `Vodafone-Idea’, 7012933826 – SIM number of `Jio’, 9567788161-SIM number of `Jio’, 8943696097- _W.P(Crl.) Nos.852 & 856 of 2022_ 11 SIM number of `Vodafone-Idea’, 9605289727 - SIM number of `Vodafone-Idea’, 9946183899 – SIM number of `Vodafone –Idea’, 9400069538 – SIM mumber of BSNL, 9400069534 – SIM number of BSNL, from 09.00 p.m on 20.11.2021 to 03.00 am on 21.11/2021, along with certification under section 65B(4) 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 the document before the trial court while summons being served during trial. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ _W.P(Crl.) Nos.852 & 856 of 2022_ 12 ## **APPENDIX OF WP(CRL.) 852/2022** PETITIONERS' EXHIBITS Exhibit-P1 THE TRUE COPY OF SEIZURE MAHASAR _W.P(Crl.) Nos.852 & 856 of 2022_ 13 ## **APPENDIX OF WP(CRL.) 856/2022** PETITIONERS' EXHIBITS Exhibit-P1 THE TRUE COPY OF SEIZURE MAHASAR Exhibit-P2 THE TRUE COPY OF 161 STATEMENT OF 3RD RESPONDENT.