Accused's Right To Fair Trial Trumps Privacy Rights Of Police: Rajasthan High Court Orders Cop's Mobile Location Data Be Preserved In Drugs Case

After a man booked under the NDPS Act alleged that the police officer was present at the site of recovery beforehand and had planted the drugs purportedly recovered from his possession, the Rajasthan High Court ordered preservation of officer's mobile tower location data under Section 94 BNSS.

In doing so, Justice Anoop Kumar Dhand observed,

"No doubt, while passing the appropriate direction for preserving and production of Call Data Record/tower location details under Section 94 of the BNSS would violate the right to privacy of the police officials but the right of the accused under Article 21 of the Constitution of India to ensure a free and fair investigation/trial would prevail over the right to privacy of the police officials." 

Section 94 BNSS empowers the court to issue summons to any person for producing any document or other things necessary for trial, which might also include electronic evidence.

The High Court opined that if a fact was disputed by both the sides, the accused had the right to invoke provisions of Section 94, BNSS for obtaining necessary documents. This right was also recognized by the Constitutional Courts.

The petition was filed by an NDPS accused, whose application under Section 94 was rejected. It was his case that an FIR was registered against him under NDPS. Before that, investigation of his clinic's premises was undertaken in which nothing was found from his possession.

Thereafter, again a search was conducted on the same day, and certain contraband was alleged to have been recovered this time, based on which the FIR was registered. The petitioner alleged that a false and fabricated case was made out against him. And the police officials were present on his premises even prior to the commission of the alleged incident.

In this background, an application was filed by the petitioner under Section 94, for preservation and summoning of Call data Record and mobile tower location of such police officials to ascertain their presence at the place of incident. This application was rejected; hence the petition was filed before the Court.

After hearing the contentions, the Court highlighted that requisitioning and preservation of the Call Data Record and Tower location would be necessary, at the earliest, otherwise the same would be lost forever.

“The right of the accused to invoke the provisions of Section 94 of the BNSS for obtaining the aforesaid documents in his defence cannot be overlooked. The legislative intent behind enactment of Section 94 of the BNSS is to ensure that no cogent material or evidence, involved in the case, remains undiscovered in unearthing the true facts during investigation, enquiry, trial or other proceedings.”

It was stated that even though calling for such information would violate right to privacy of the concerned police officials, but some extent of privacy could be breached in production of the said material as that would facilitate the trial court in discovering complete truth.

The Court held, denial of an adequate opportunity to the accused by non-production of electronic record, which was admissible under the Indian Evidence Act in a criminal trial would be miscarriage of justice, and also amount to denial of free and fair trial.

Accordingly, the petition was partly allowed, wherein trial court was directed to summon for the required record, but it was stated that while providing such details, the details of phone numbers of incoming/outgoing phone calls shall be censored.

Title: Dr. Avinash Sharma v State of Rajasthan

Citation: 2025 LiveLaw (Raj) 386

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