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Obi Ogochukwu Stephen vs State on 10 January, 2022

Author: Anu Malhotra

Bench: Anu Malhotra

                          $~58
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CRL.M.C. 3356/2021 & CRL.M.A.20386/2021
                                 OBI OGOCHUKWU STEPHEN                             ..... Petitioner
                                                   Through:     Mr.M.P.Sinha, Advocate.
                                                   versus
                                 STATE                                             ..... Respondent
                                                   Through:     Ms.Aashaa Tiwari, APP for State.
                                 CORAM:
                                 HON'BLE MS. JUSTICE ANU MALHOTRA
                                         ORDER

% 10.01.2022 (through Video Conferencing) The petitioner, vide the present petition has made the following prayers:-

"i) Set aside Impugned Order dated 20.11.2021 by virtue of which the prayer of calling CDR with Mobile Tower Location, of the IO had been declined.

ii) To direct the S.H.O/I.O to obtain and file the CDR along with the Cell ID location of mobile no. 9540095100 belonging to ASI Rajender Singh, PSI No. 550/W, In-Charge of the Raiding Team, from 11:30 PM of 23.02.2021 to 01:00 AM of 25.02.2021, simply to ascertain his presence at the tenanted house of the Petitioner at Guru Nanak Nagar, much prior to alleged secret Information at 9:30 AM, received by him.

iii) Pass appropriate directions for preserving the CDR and Mobile Tower Location of Mobile No. 9540095100, for the relevant period,

iv) Pass any other further order / orders as this Hon'ble Court deems fit and proper in the circumstances of the case and in the interest of justice and equity."

At the outset, it is observed that in paragraph 4 of the petition, it is averred to the effect:-

"4. That just to unearth the truth, the Petitioner preferred an Application u/s 91 CrPC, to have the CDR containing Tower Location of the mobile no. 9540095100, of the IO ASI Rajender Singh, owned and possessed by him, simply to ascertain the presence of the IO, in the tenanted house of the Petitioner, but the Trial Court has simply declined the same as evident from order dated 20.11.2021 (Impugned Order), on totality lame pretext, and more so the judicial verdicts quoted in the order are clearly distinguishable as in the present case, the entire local residents had been a witness to arrest of the Petitioner from his House, particularly the Affidavit filed by the Landlady of the Petitioner makes no scope of any falsehood.", the same is apparently grossly contemptuous. The said submissions are directed to be expunged from the record.

The affidavit of apology of the counsel for the petitioner be filed during the course of the day.

Submissions made through the present petition by the petitioner arrayed as an accused in relation to FIR No.127/2021, PS Tilak Nagar under Section 21 of the NDPS Act, 1985 in which he is custody since 24.02.2021 are to the effect that whereas as per allegations levelled against him, he was nabbed by the Investigating Officer, ASI Rajender Singh, PSI No. 550/W at 9.30 AM at the park near MBS Nagar near the MCD Primary School on 24.02.2021, in fact the applicant had been taken away from his house in the early hours of the morning of 24.02.2021 much prior to receipt of the alleged secret information also and the affidavit of the landlady of the petitioner has been placed on record as Annexure-A4.

It has been submitted on behalf of the petitioner that in order to unearth the truth, the petitioner had moved an application under Section 91 of the Cr.P.C. to have the CDR containing the tower location of the mobile No.9540095100 of the IO, ASI Rajender Singh, which was however, declined by the learned Trial Court vide the impugned order dated 20.11.2021.

It has been submitted on behalf of the applicant/petitioner placing reliance on the verdict of the Hon'ble High Court of Rajasthan in "Kapil Vs State of Rajasthan" (2021 SCC OnLine Raj 708) and the verdict of the Co- ordinate Bench of this Court in "State Govt. of NCT of Delhi Vs. Nizamuddin" (2021 SCC OnLine Del 3541) that the CDR details with the cell ID location of mobile No.9540095100 of the Investigating Officer from 11.30 PM of 23.02.2021 to 1.00 AM of 25.02.2021 be obtained and the CDR details of the said mobile be preserved.

The State has inter alia placed reliance on the verdict of this Court in "Attar Singh Vs. State of NCT of Delhi" (2016) 3 JCC 1930 and the verdict of this Court in "Puneet Arora Vs. State NCT of Delhi" in CRL.REV.P. No.327/2020, a verdict dated 03.12.2020 to seek to the effect that the prayer made by the petitioner be declined submitting to the effect that the same would jeopardise the activities of the Investigating Agency which operates in national interest and deals against the drug peddlers and organised crime activities and would thereby jeopardise even the lives of the secret informers and also cause grave prejudice to the secret informers.

On a consideration of the submissions that have been made on behalf either side, without any observations on the merits or demerits of the trial CRL.M.C. 3356/2021 Page 3 of 6 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:12.01.2022 17:48 that may take place in the case in relation to FIR No.127/2021, PS Tilak Nagar under Section 21 of the NDPS Act, 1985, in view of the observations of the Hon'ble Supreme Court in the case "Suresh Kumar Vs. Union of India" 2015 (3) JCC 121 (Narcotics) with observations therein vide paragraph 8 to the effect:-

"8. 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. Makhija made a 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 CRL.M.C. 3356/2021 Page 4 of 6 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:12.01.2022 17:48 the period 24.02.2013 between 4.30 to 8.30 pm. 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." , and also taking into account the observations made vide verdict of the Co- ordinate Bench of this Court in Crl.Rev.P. No. 276/2018 dated 28.1.2021 titled Govt. of NCT of Delhi V. Nizamuddin @ Nizam; wherein there is reference inter alia to the observation of this Court in Narcotics Control Bureau v. Gaurav Kumar; Crl.M.C. No. 3161/2019, a verdict dated 5.11.2019 to the effect:-

"6. On perusal of the aforesaid provision of law, it is clear that whenever any Court or any officer in charge of a Police Station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring hint to attend and produce it, or to produce it, at the time and place stated in the summons or order.", and the observations of the Hon'ble Supreme Court in "Suresh Kalmadi Vs. CBI" 2015 {3} JCC 1874 with specific observations in paragraph 24 thereof to the effect:-

"24. It is submitted by the petitioner that the nexus that the call records will demonstrate strikes at the foundation of the Prosecution's case, and which would show that there was no conspiracy between the petitioner and other accused persons to favour M/s Swiss Timing, and that in fact other officials of the OC, i.e. Prosecution witness PW-

18 Sujit Panigrahi attempted to favour MSL as a bidder and these facts in support of this are evident and demonstrable, but have been deliberately overlooked or concealed by the Prosecution and therefore, the petitioner has a right to an effective opportunity to establish this case with the aid of relevant documents such as the Call Detail Records of Mr. Jyoti Chhabra. At this stage, the Court is not concerned whether the averments made in the application under Section 91 Cr.P.C. may be gospel truth or not. If the documents are necessary in order to decide the real controversy, the same cannot be thrown particularly when the application is filed by the accused..........", the service provider i.e. Jio Prepaid is directed to preserve the CDR details of mobile No.9540095100 of the date 24.02.2021 from 4.30 AM till 11.30 AM. It is further directed that the calling numbers and the numbers from the said mobile phone of that date and period shall be blacked out by the service provider.

As and when required, it would be open to the petitioner to seek the summoning of the records directed to be preserved by the service provider i.e. Jio Prepaid of the date 24.02.2021 qua mobile number 9540095100 for the period 4.30 AM to 11.30 AM.

The petition is disposed of accordingly.

ANU MALHOTRA, J JANUARY 10, 2022 nc CRL.M.C. 3356/2021 Page 6 of 6 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:12.01.2022 17:48