Deliberate Defiance To Hide Truth: Rajasthan HC Raps State In NDPS Matter For Non-Production Of Crime Scene's CCTV Footage, Other Best Evidence

Rajasthan High Court has recently censured the state instrumentalities for withholding the best evidence despite the trial court order, which the court opined was equivalent to contempt of court.

The single-judge bench of Justice Farjand Ali was pronouncing orders in three bail applications arising from an NDPS case.

“…what was the fear for the prosecution agency to conceal the documents; production of which would speak about the truth? It seems that 'there is specks in beard of a thief”; and strong circumstances are there to believe that the prosecution agency does not want to bring forth the truth before the Court…”, the bench sitting at Jodhpur made strong remarks as to why the prosecution story set out in the chargesheet cannot be blindly believed.

The court stated as above since it felt that the prosecution should not have hesitated to produce the 'best evidence', including the CCTV footage from the toll plaza where the contraband was allegedly seized, to dispel all possibility of reasonable doubt.

The court further added that the state has deliberately taken the decision not to produce the CCTV footage of the toll plaza where the accused were apprehended, as well as call data records and the mobile tower location of the police officer who seized the contraband. The court considered such defiance as an attempt by the state to prevent the 'sifting of just from unjust.'

“…It is not comprehensible for this Court that when a prayer is made to make the things crystal clear then why the State trying hard to or even defying the Court order so as to hide the truth or to obstruct the way of reaching onto the real facts…”, the court further noted.

Justice Ali emphasized that, at a later stage, even the trial court robbed the accused of the opportunity to prove their innocence by indirectly allowing the prosecution to destroy the defense evidence. Pertinently, details of tower location and call data records get automatically deleted after a year. The court also said that a cloud of doubt had been cast upon the conduct of the investigating agency that refused to produce important electronic records as evidence, allegedly to keep the prosecution story intact.

Such a situation, if true, would also indicate that the State or even the Courts are not keen to ensure fair play and wouldn't bother even if the ends of justice are defeated, the court opined.

“When it is the case of the prosecution that the incident took place at a particular time and place and neither it is refuted nor denied that CCTV footage of the cameras were not installed at that particular place then despite making a prayer, not passing direction for production of the evidence would tantamount to an utter disregard of the principle of law and justice…”, the bench sitting at Jodhpur expressed its dissatisfaction in unambiguous terms.

Earlier, in 2022, a police team from Rajiyasar Station had allegedly intercepted two vehicles carrying 76 Kg poppy husk near a toll plaza at Hindol. Before the trial court, an application filed by the accused under section 91 of Cr. P.C. came to be ordered with a direction to produce the CCTV footage from the toll plaza at the relevant time. This order was not complied with by the state. This was followed by another application under Section 91 filed by the accused for producing call data records and the tower location of the seizing officer, which was rejected by the trial court in 2023.

Making a reference to section 114 of the Indian Evidence Act, the court further went on to note that if any evidence is withheld by the person who was capable of producing it before the court, the latter could presume that such evidence, if produced, will be unfavourable to the person withholding the same. The court made the above reference to point out that an adverse inference can be drawn against the prosecution agency for withholding the best evidence.

“…At this juncture, this Court feels that non-production of material even after passing of the order of the trial Court amounts to contempt of the order of the trial Court which has never been purged rather the order has been defied brazenly…”, Justice Ali also emphasized that the accused are still languishing in the jail, contrary to their right to liberty enshrined in the Constitution, since the fairness of seizure memo has become doubtful in the instant case.

Before allowing bail for the accused, the court also made remarks about how Section 52-A of the NDPS act has not been followed in the current case, pertaining to the preparation of inventory and drawing of samples in the presence of a magistrate.

After conjointly considering the non-compliance of statutory provisions by the investigating agency and the withholding of the best evidence by the state authorities, the court granted bail to the accused. The court has also clarified that the observations made therein are solely for adjudicating the bail application, and the trial court should be moving forward with the proceedings independently of such observations.

For Petitioners: Mr. Ashok Khilery, Mr. Rajendra Singh Rathore, Mr. Vinod Kumar Sharma,

For Respondent: Mr. Dilip Kumar Sharma Mr. Mukhtiyar Khan, PP

Case Title: Sunil v. State of Rajasthan and Connected Matters

Case No: S.B. Criminal Miscellaneous 2nd Bail Application No. 238/2024 & others

Citation: 2024 LiveLaw (Raj) 56

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