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2022 DIGILAW 2090 (RAJ)

Lala Ram v. Union Of India, Through NCB, Jodhpur

2022-07-21

DINESH MEHTA

body2022
ORDER 1. The petitioner has approached this Court invoking inherent jurisdiction of this Court conferred by Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ’Code’) oppugning the order dated 07.05.2022 passed by Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases, Bhinmal, District Jalore (hereinafter referred to as the ’trial Court’) whereby petitioner’s application dated 23.03.2022 under Section 91 of the Code has been rejected. 2. The petitioner is being tried for the offences under Sections 8/18, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ’Act of 1985’), on the accusation that contraband substances were recovered from petitioner’s possession. 3. During the course of trial, the petitioner moved above referred application dated 23.03.2022 and prayed that call locations and call details of two Constables namely Laxman Singh and Dinesh Kumar and ’Rojnamcha’ report of Police Station Bhinmal for the of 02.07.2021 be summoned. 4. The trial Court rejected petitioner’s aforesaid application inter alia observing that provisions of Section 91 of the Code are meant to further the cause of investigation and what have been sought to be produced by the petitioner (accused) are the documents/material, which would be used for the purpose of petitioner’s defence. 5. Mr. Bishnoi, learned counsel for the petitioner argued that the trial Court has erred in rejecting petitioner’s application on hyper technical grounds. 6. He argued that it is the specific plea of the petitioner that the attesting witnesses of the seizure memo namely Laxman Singh and Dinesh Kumar were not available in the police station at the time of seizure, i.e. 7.00 pm on 02.07.2022 and they had gone on tour. 7. Learned counsel argued that if the call details and call locations are not obtained at this point of time, the concerned mobile company would destroy or erase the record, as the mobile companies are not supposed to save/preserve call details/call locations beyond a period of two years. 8. Mr. Pareek, learned Special Public Prosecutor appearing for the Narcotic Control Bureau argued that petitioner’s application is premature and what is being tried by the petitioner is, collection of evidence in his defence, which is not required or relevant because even the charges have not been framed. 9. Heard learned counsel for the parties. 10. 8. Mr. Pareek, learned Special Public Prosecutor appearing for the Narcotic Control Bureau argued that petitioner’s application is premature and what is being tried by the petitioner is, collection of evidence in his defence, which is not required or relevant because even the charges have not been framed. 9. Heard learned counsel for the parties. 10. The trial Court’s view that the provisions of Section 91 of the Code cannot be invoked for collecting evidence in defence for an accused is not correct. The provision is not confined to investigation, it also applies during trial. Hence, whether for the cause of prosecution or for defence, if a document is to be summoned then stage becomes irrelevant. One cannot remain oblivious of the fact that if the call details and call locations are not summoned well in time, the mobile company would erase such record and then the petitioner’s valuable right to defend would be practically taken away. 11. My aforesaid view finds strength from the order dated 18.02.2020 rendered by this Court in the case of Swarn Singh @ Baba Vs. State of Rajasthan (SB Criminal Misc. Petition No.273/2020), order dated 06.07.2021 passed in the case of Kapil Vs. State of Rajasthan (SB Criminal Misc. Petition No.1910/2021) and order dated 19.02.2020 rendered in the case of Hari Ram Vs. Union of India, NCB (SB Criminal Misc. Petition No.245/2020). 12. The present petition is thus, allowed. 13. The impugned order dated 07.05.2022 passed by learned trial Court is set aside and petitioner’s application dated 23.03.2022 is allowed as prayed. 14. The trial Court is directed to issue requisite notice to the concerned mobile company to provide call details and call locations of the witnesses namely Laxman Singh and Dinesh Kumar and so also ’Rojnamcha’ report and keep the same with itself. 15. Stay application too stands disposed of accordingly.