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2025 DIGILAW 593 (RAJ)

Prabhu Ram v. State of Rajasthan

2025-03-05

FARJAND ALI

body2025
ORDER : FARJAND ALI, J. 1. The petitioner preferred the instant Misc. Petition for setting aside of the order dated 05.02.2025, passed by the learned NDPS Act cases, Sirohi in FIR No. 9/2025 of Police Station PALDI-M. 2. The Petitioner happens to be an accused of a prosecution under NDPS Act. On 29-01-2025, he moved an application under Section 94 of the BNSS with a prayer to preserve evidence, the description of which is given as 11 items in Para No. 3 in the application above. 2.1. The issue involved in this case is now no more as res-integra in light of the judgment passed after an elaborate discussion with regard to the controversy involved in the case of Chotha Ram & Anr. Vs. State of Rajasthan passed in SBCRLMP No.3672/2023 decided on 04.03.2023. The relevant paragraphs are being reproduced hereunder:- “11. This Court feels that if for the purpose of reserving and saving the right of the accused and for the sake of justice, if a prayer is made to summon the electronic evidence so as to elicit the truth behind the story, then such prayer ought not to have been declined. When the assertion is made that what is wrong may be proved to be wrong and vice-versa in the end so that the oil and truth must come out, then the defence must be given an opportunity because not giving an opportunity would mean denying them to counter the charges or to defend themselves as well as closing the door of justice for truth to enter in. 12. It is true that after commencement of the trial, the opportunity is being given to the prosecution to lead or adduce evidence in support of charges, whereafter an explanation under Section 313 of Cr.P.C. will be sought from the accused and then the stage of entering into defence under Section 233 of Cr.P.C. would come. 12. It is true that after commencement of the trial, the opportunity is being given to the prosecution to lead or adduce evidence in support of charges, whereafter an explanation under Section 313 of Cr.P.C. will be sought from the accused and then the stage of entering into defence under Section 233 of Cr.P.C. would come. It is also true that until the stage of taking the evidence of the defence on record comes, the defence evidence is not required to be taken on record and for that purpose no defence material would be summoned but here is not the question of taking or tendering the defence evidence or relying upon that rather it is observed that, as per the Rules and Regulations of the Telecom Regulatory Authority of India, the data of call record is deleted automatically after lapse of one year, then it becomes the duty of the Court to save the data so as to enable the defence or any other party to take use of it at the appropriate stage. In fact, ordering saving/storing/preserving data from destroy would not mean that at the premature stage defence evidence is taken. 13. It does not mean that allowing an application under Section 91 of Cr.P.C. for protection of electronic records from deletion and summoning the same to keep on record would mean taking evidence of defence at a nascent stage; rather, it is being done only for the purpose of saving and protecting the evidence from being destroyed. In fact, the defence evidence shall be taken and considered after the stage of Section 233 of Cr.P.C. would come. The Court of Law and Justice is not supposed to tolerate vanishing or damaging the evidence of vital importance, the presence of which would be displaying the truth which would further mean that the truth will prevail, that the truth will be separated and set aside from the lies. 14. It is not comprehensible that what is the harm if the evidence of vital importance, which may play a key role in adjudicating the charges, is saved, stored, preserved and protected from being destroyed till the actual stage of consideration of that evidence would come. 15. 14. It is not comprehensible that what is the harm if the evidence of vital importance, which may play a key role in adjudicating the charges, is saved, stored, preserved and protected from being destroyed till the actual stage of consideration of that evidence would come. 15. This Court is of the firm opinion that if the accused persons are taking risk in making prayer for summoning call data record and tower locations record of the police officers, who claim that they apprehended the accused persons from a particular place and at a particular time, which if produced and found genuine then it may be a further piece of evidence against them as the story of the prosecution shall be proved genuine, however, imagine that if the call data record and tower locations of the police officers are not found to be matching with the time and place mentioned in the seizure memo, then it may be a serious dent in the story set out in the charge-sheet and so then there is no legal impediment in summoning the material even at a premature stage just for the purpose of saving the same from deletion. The main object of the courts are meant to impart justice and for that very object it is established. If something suggesting for truth to come on record then in my opinion not allowing the same would mean hiding the truth. 16. Why an opportunity could not be granted to the accused to disprove the charges, though such evidence would neither be considered before its actual stage nor any finding would be given on it but at least an order for protection/preservation of the evidence can certainly be passed. 17. A plain reading of Sections 91 and 311 of Cr.P.C. if read together would elucidate that whenever it appears to the Court that any evidence is essential for the just decision of the case, then it may call or recall such evidence or witness at any stage of the trial. Even after culmination of trial and during pendency of the appeal, such task can be undertaken by the Court by taking resort to Section 391 of the Cr.P.C. as the ultimate object of the Court is to impart justice and justice only. 18. Even after culmination of trial and during pendency of the appeal, such task can be undertaken by the Court by taking resort to Section 391 of the Cr.P.C. as the ultimate object of the Court is to impart justice and justice only. 18. For the purpose of making differentiation between truth and lie, the course of law is supposed to provide ample opportunities to the parties of the lis so that the ultimate task of securing the ends of justice can be achieved. The issue involved in this case is squarely covered by the judgment referred to Supra, therefore, the petition deserves to be allowed. 3. Accordingly, the Misc. Petition is allowed and it is ordered that the order dated 05.02.2025, passed by the learned Special Judge, NDPS Act cases, Sirohi in FIR No.9/2025, is hereby quashed and set aside. The learned trial Judge is directed to do all the needful for preservation of the evidence, description of which is mentioned in Para No. 3 of the application dated 29-01-2025. Needless to say, the evidence above can be used by the parties during the course of trial. 4. The stay petition also stands disposed of.