2018 (10) TMI 222 - DSC - Customs

Detention of person under COFEPOSA Act - Illegal custody - recording of statement is voluntary or not - application for direction to the mobile companies to place on record the tower location of the telephones of DRI officials on the night of 01.09.2016. Held that - In the instant case, accused has prayed that CDRs and tower locations of the accused as well as DRI officials are very necessary to prove that he was illegally detained in the custody by DRI officials and not produce before the Court within stipulated period of 24 hours from his arrest. A person arrested should not be held guilty and he should also be given opportunity to prove his defence. The CDRs and Tower locations can also prove the actual facts of the case and accused should be given right to produce evidence in his defence but the said evidence in form of CDRs and Tower location cannot be produce until get preserved by the 10 or directed to preserve by the Court. No prejudice shall be caused to the department in any manner, if this application is allowed and accused is granted opportunity to prove his defence. This application u/s. 91 Cr.P.C. is allowed and notice be issued to the concerned mobile operators, who are directed to preserve the CDRs and tower location of mobile phone of the accused Narender Kumar as well as the officers of DRI as mentioned in the application in para 12 and file the same in the Court within one months from today - application disposed off.

Summary

Issues:
Application under Section 91 Cr.P.C. for tower location details of accused and DRI officials' phones on a specific date.

Analysis:
The accused filed an application under Section 91 Cr.P.C. seeking tower location details of the phones of DRI officials and himself on a particular night, alleging illegal custody and torture by the DRI officials. The accused claimed that he was falsely implicated, detained under COFEPOSA, and coerced into making a statement. The accused argued that the evidence from call detail records (CDRs) and tower locations was crucial for his defense. The defense counsel cited various case laws in support of the application, emphasizing the importance of these details for establishing the truth and defense in the trial.

The Special Public Prosecutor opposed the application, contending that it was not maintainable and an abuse of the legal process. The prosecutor denied the allegations of illegal detention and coercion, stating that the accused had voluntarily provided a statement under section 108 of the Customs Act. The prosecutor also mentioned that the accused had undergone a medical examination before being produced in court and appeared in response to summons.

After hearing the arguments and examining the records, the Chief Metropolitan Magistrate acknowledged the significance of the CDRs and tower locations in determining the legality of the accused's detention and providing an opportunity for the accused to present his defense. The Magistrate noted that the preservation of this evidence was essential for a fair trial and that allowing the application would not prejudice the department. Relying on the facts presented and the case laws cited by the defense counsel, the Magistrate allowed the application under Section 91 Cr.P.C., directing the concerned mobile operators to preserve and submit the CDRs and tower locations of the accused and DRI officials within one month.

In conclusion, the Chief Metropolitan Magistrate granted the application, emphasizing the importance of preserving the evidence for a fair trial and providing the accused with an opportunity to establish his defense. The order was disposed of, with a copy provided to the applicant or his counsel for reference.