Docid # IndLawLib/996145

(2015) 3 AICLR 582 : (2015) ALLMR(Cri) 4111 : (2015) 2 ApexCourtJudgments(SC) 724 : (2015) 3 CriCC
339 : (2014) 1 DC(Narcotics) 395 : (2015) 3 JCC 121 : (2015) 4 JKJ 1 : (2015) 3 LawHerald 2319 : (2015) 3
LawHerald(SC) 2281 : (2015) 3 RCR(Criminal) 340 : (2015) 3 RecentApexJudgments(RAJ) 582
SUPREME COURT OF INDIA
DIVISION BENCH

SURESH KUMAR — Appellant

Vs.

UNION OF INDIA (UOI) — Respondent

( Before : T.S. Thakur, J ; C. Nagappan, J )
Criminal Appeal No. 1234 of 2014 (Arising out of SLP (Cri.) No. 1477 of 2014)
Decided on : 06-05-2014

Evidence Act, 1872 - Section 65A, Section 65B, Section 65B(4)

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Section 21, Section 22,
Section 29, Section 8, Section 8(C)

Counsel for Appearing Parties

Vibha Dutta Makhija, Senior Advocate, D.S. Parmar, Susheel Tomar, Puja Anand, Archi Agnihotri and Abha R.
Sharma, Advocate for the Appellant; Siddharth Luthra, ASG, Sushma Manchanda and B. Krishna Prasad,
Advocate for the Respondent;

Final Result : Allowed

ORDER

T.S. Thakur, J.

1. Leave granted. This appeal arise out of an order dated 28.01.2014 passed by the High Court of Madhya
Pradesh at Indore whereby Criminal Revision No. 98 of 2014 filed by the Appellant against an order dated
24.12.2013 passed by the Special Judge, NDPS, Indore has been dismissed.

2. The Appellant is being prosecuted before the Special Judge, NDPS, Indore for offences punishable Under
Sections 8, 21, 22, 29 read with 8(C) of the NDPS Act, 1985. The prosecution case it appears is that the
Appellant was nabbed in front of Yashica Palace hotel near Gangwal bus stand at Indore between 1800 and
1900 hrs. on 24.02.2013 by the Intelligence Officer of the Narcotics Control Bureau carrying 610 gms of
heroin and 40 gms. of Alprazolam in a bag which was seized by the Officer effecting the arrest. A mobile
phone Sim No. 90395020407 was also according to the prosecution, seized from the possession of the
Appellant. While the trial has yet to commence on the charge sheet filed against the Appellant, an
application was filed on his behalf before the Special Judge, NDPS, Indore praying for a direction
summoning call details that would indicate the locations of three different mobile telephone numbers
mentioned in paras 3 and 5 of the said application. Out of there number one of the mobile phones
admittedly belongs to the Appellant-accused while the other two telephone numbers bearing Sim No.
9165077714 issued by the Airtel Company and Sim No. 7145593902 issued by the Tata Docomo Company
are said to be of the Officers who are alleged to have arrested the Appellant on the date, time and place,
mentioned above. The Appellant's case before the Trial Court and so also before the High Court was that
the prosecution story that he was arrested from near about the hotel, mentioned above, was factually
incorrect which fact could according to the Appellant be proved by the call details of the mobile numbers
held by the officers who are alleged to have arrested the Appellant. The Appellant contended that the
telephone numbers of the Officer effecting the arrest and making the seizure would show that the officers
concerned were at some other locations during the time the Appellant's arrest and resultant seizures are
alleged to have been made. The Trial Court and the High Court have declined that prayer as noticed above.

3. We have heard Ms. Vibha Dutta Makhija, learned Senior Counsel for the Appellant and Mr. Siddharth
Luthra, learned ASG for the Respondent-UOI. Ms. Makhija contended that the call details which the
Appellant seeks to summon under the orders of the court will be extremely vital for proving that the
Appellant was not arrested at the time and place alleged by the prosecution. The fact that the Officers who
effected the arrest were during the relevant period at different locations would clearly belie the prosecution
case in that regard. Inasmuch as the trial court and the High Court declined to summon the call details the
orders passed by them have the effect of denying to the Appellant the opportunity to prove his innocence
thereby causing prejudice to him in his defence.

4. On behalf of the Respondent it was argued by Mr. Luthra that while call details were admissible in terms
of Section 65A and 65B of the Indian Evidence Act subject to fulfillment of the requirements stipulated in
the said provision such details are likely to prejudice the prosecution and in particular the Narcotic Control
Bureau inasmuch as the details being summoned would not only indicate the location of the officers
concerned but also bring other information into public domain. This would according to Mr. Luthra hamper
investigation sand may result in exposing sources of information. Once exposed the sources may according
to the learned Counsel completely dry up to the prejudice of the Bureau. It was submitted that the like by
prejudice which the Respondents apprehend is a good enough reason for this Court to decline the prayer
made by the Appellant.

5. Insofar as the call details of the mobile connection held by the accused are concerned the same have
according to Mr. Luthra already been produced at the trial clearly showing that the accused was at the
relevant point of time at or around the place from where he was arrested. This according to the learned
ASG obviates the necessity for proving whether the officers concerned were indeed present in the are a
from where the Petitioner was allegedly arrested along with the narcotics.

6. That electronic records are admissible evidence in criminal trials is not in dispute. Sections 65A and 65B
of the Indian Evidence Act make such records admissible subject to the fulfillment of the requirements
stipulated therein which includes a certificate in terms of Section 65B(4) of the said Act. To that extent the
Appellant has every right to summon whatever is relevant and admissible in his defence including
electronic record relevant to finding out the location of the officers effecting the arrest. Be that as it may
we do not at this stage wish to pre-judge the issue which would eventually fall for the consideration of the
Trial Court.

7. All that we are concerned with is whether call details which the Appellant is demanding can be denied to
him on the ground that such details are likely to prejudice the case of the prosecution by exposing their
activities in relation to similar other cases and individuals. It is not however in dispute that the call details
are being summoned only for purposes of determining the exact location of the officers concerned at the
time of the alleged arrest of the Appellant from Yashica Palace hotel near the bus stand. Ms. Makhijamadea
candid concession that any other information contained in the call details will be of no use to the Appellant
and that the Appellant would not insist upon disclosure of such information. That in our opinion simplifies
the matter in as much as while the call details demanded by the Appellant can be summoned in terms of
Section 65B of the Indian Evidence Act such details being relevant only to the extent of determining the
location of officers concerned need not contain other information concerning such calls received or made
from the telephone numbers concerned. In other words if the mobile telephone numbers caller details of
the callers are blacked out of the information summoned from the companies concerned it will protect the
Respondent against any possible prejudice in terms of exposure of sources of information available to the
Bureau. Interest of justice would in our opinion be sufficiently served if we direct the Trial Court to
summon from the Companies concerned call details of Sim telephone No. 9039520407 and 7415593902 of
Tata Docomo company and in regard to Sim No. 9165077714 of Airtel company for the period 24.02.2013
between 4.30 to 8.30 p.m.. We further direct that calling numbers and the numbers called from the said
mobile phone shall be blacked out by the companies while furnishing such details. We accordingly set
aside. Appeal allowed.