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2014 DIGILAW 673 (RAJ)

Manju Devi v. State of Rajasthan

2014-03-10

VIJAY BISHNOI

body2014
JUDGMENT 1. - The petitioner along with some other accused-persons is facing trial in Sessions Case No. 18/2010 pending in the Court of Special Judge, N.D.P.S. Act Cases, Jodhpur (for short 'the Trial Court' hereinafter) for the offences punishable under Section 8/15 of the N.D.P.S. Act read with Sections 307, 279 l.P.C. and Section 3/25 of Arms Act. 2. The case of the prosecution is this that on 29.3.2009, the police had recovered contraband of poppy husk from a Tavera car in the jurisdiction of Bagadi Police Station, District Pali. It is alleged that in the vehicle - Tavera, poppy husk weighing around 324 kgs. was transported by Radhey Shyam and Ganesh and the said Tavera was escorted by another Tavera-vehicle, wherein the petitioner along with other accused-persons was found. The seizure of the contraband and arrest of the accused persons were done by PW-16 Prem Dan, the then S.H.O. of Police Station, Bagadi, District Pali. 3. During trial, the statement of PW-16 Prem Dan was recorded before the Trial Court on 3.1.2014, wherein certain questions were put to him by the defence Lawyer in cross-examination in respect of mobile number 9414917651, while claiming that on the day of seizing of the contraband i.e. 29.3.2009, PW-16 Prem Dan was carrying said mobile with him. During his deposition, PW-16 has stated that he does not remember that on the day of recovery of contraband, he was carrying the aforesaid mobile number, though he admitted that at present, he is carrying the mobile bearing same number but he does not remember that on the day of the incident, the said mobile number was available with him. 4. After recording the statement of PW-16, the petitioner had filed an application under Section 91 Cr.P.C. with a prayer that location, call details and particulars about the SIM of mobile number 9414917651 may be summoned from Bharat Sanchar Nigam Limited, Jodhpur (for short 'BSNL' hereinafter) as the PW-16 has evaded the question about the availability of the said mobile number with him on the day of the recovery of the contraband. 5. 5. It is contended on behalf of the petitioner before the Trial Court that the alleged contraband was not seized by PW-16 Prem Dan on 29.3.2009 and he was not present at the site at the time of recovery of said contraband and since he has evaded the question about availability of the said mobile number with him, the details of the said mobile number, such as location, call details etc. pertaining to the date of the incident be summoned from the BSNL. 6. The application was opposed by the prosecution and the learned Trial Court vide order dated 9.1.2014 has rejected the application while observing that it is not clear that on the day of incident, PW-16 was carrying mobile phone number 9414917651 with him, therefore, there is no logic in summoning the call details of mobile phone number 9414917651 from the BSNL. 7. Being aggrieved with the rejection of the application under Section 91 Cr.P.C., the petitioner has filed this criminal misc. petition, while contending that on the day of the incident, PW-16 was neither present on the site nor the said contraband was seized by him. It is also contended that on the day of the incident, PW-16 was using the mobile phone number 9414917651, however, in his statement before the Court, he has nowhere said that he was not using the said mobile and simply evaded the question by saying that he does not remember whether he was carrying the said mobile on the day of the incident or not. 8. The learned Counsel for the petitioner has further contended that the Trial Court has illegally rejected the application of the petitioner filed under Section 91 Cr.P C. by observing that it is not clear that whether the PW-16 was carrying mobile phone number 9414917651 on the day of the incident and therefore, there is no logic in summoning the details of the said mobile. The learned Counsel for the petitioner further argued that PW-16 was posted as S.H.O. of Police Station, Bagadi on the day of the incident and as per his statement, he was at the Police Station at the time of recovery of the contraband and has passed information to the In-charge of Chandavyal Chowki about the vehicle in which the contraband was transported and from this fact, it is clear that PW-16 was not present at the time of alleged recovery of the contraband and he has also not seized the contraband. The learned Counsel for the petitioner has also argued that the Trial Court has illegally rejected the application of the petitioner filed under Section 91 Cr.P.C., therefore, the order passed by the Trial Court dated 9.1.2014 may kindly be quashed and the application filed by the petitioner under Section 91 Cr.P.C. may kindly be allowed and a direction be issued to summon the call details of the mobile number 9414917651 pertaining to the date of incident. 9. Per contra, the learned Public Prosecutor has supported the impugned order and argued that when it is not clear that PW-16 Prem Dan was carrying the mobile phone number 9414917651 on the day of the incident, the Trial Court has rightly rejected the application of the petitioner under Section 91 Cr.P.C. vide impugned order dated 9.1.2014. 10. Heard learned Counsel for the parties and perused the record. 11. During the cross-examination, PW-16 was asked about the mobile number 9414917651. The relevant portion of the cross-examination of PW-16 is reproduced hereunder: VARNACULAR MATTER OMITTED 12. From above part of the statement of PW-16, it is clear that the PW-16 has nowhere denied that he was not carrying mobile number 9414917651 on the day of the incident, rather he has evaded the answers of the questions by J simply saying that he does not remember whether he was carrying the said mobile number on the day of the incident or not, however, he has admitted that at present, he is using mobile number 9414917651. 13. 13. In the above circumstances, when PW-16 has not specifically denied about using of the mobile number 9414917651 on the day of the incident and is admitting that he is using the said mobile number at present, this Court is of the opinion that the Trial Court has erred in rejecting the application filed by the petitioner under Section 91 Cr.P.C. for summoning the location and call details of the mobile number 9414917651 pertaining to the day of the incident. If the location and call details of the mobile number 9414917651 pertaining to the date of the incident are summoned, the case of the prosecution cannot be said to be prejudiced in any manner and the details of the mobile phone number 9414917651 will only facilitate the Trial Court to find out the truth in the prosecution story. 14. In view of the above, this criminal misc. petition is allowed. The impugned order dated 9.1.2014 passed by the Trial Court is quashed. The application preferred by the petitioner under Section 91 Cr.P.C. is allowed and the Trial Court is directed to summon details of the mobile phone number 9414917651 with regard to its location, calls and SIM details pertaining to the day of the incident i.e. 29.3.2009 from the Bharat Sanchar Nigam Limited, Jodhpur.Petition allowed. *******