Record IMEI etc. before handing over interim custody of electronic devices, Calcutta HC

The Calcutta High Court has directed investigating authorities to ascertain and note down the unique identification details such as IMEI number of electronic devices like mobile phones, tablets etc. before handing over interim custody of such devices to concerned parties..The order was passed by Justice Joymalya Bagchi..By way of background, a case was pending before the Additional Sessions Judge for alleged dacoity committed in an electronics store of the complainant. Among the articles recovered by the authorities following investigation was a Nokia Lumia phone, which was also reported to the Magistrate. On a prayer made by the complainant, the same was handed over to him, on executing a bond..The same phone was purportedly produced as evidence before the trial court by the complainant, and the same attested to by the investigating officer, during cross examination. However, during cross examination, the defendant raised serious doubts as to whether the phone recovered during the course of investigation and the phone produced before the court were one and the same..It was pointed out, inter alia, by the defendant that the police had omitted to record any identification information pertaining to the phone unit such as brand name, IMEI number or CDR, in the seizure list. It was also submitted that such details were not noted before handing over interim custody of the phone to the complainant..Following examination, the petitioner and the prosecution applied to the trial court to issue summons for an additional witness under Section 313 of the CrPC, to aid in proving the purchase receipt of the phone. The defendants, however, submitted that information regarding this receipt, which was claimed to have been collected during investigation, was never communicated to them as mandated under Section 173 (5) of the CrPC..The trial court refused the complainant’s plea and a revision petition against this refusal was preferred before the High Court by the petitioner/complainant. However, the single judge of the High Court also agreed with the trial court’s decision, observing that,.“…without ascertaining the said number, the phone had been handed over to the custody of the petitioner resulting in a snap in the live link between the electronic gadget seized and the item which was produced during trial….…to permit the examination of the proposed witness would amount to repairing a lacuna in the prosecution case which has been exposed by the defence during the cross-examination of the prosecution witnesses.”.Justice Bagchi further held that the failure to ascertain the IMEI number of the seized mobile is not a mere irregularity or procedure, but rather it strikes at the root of the prosecution case by extinguishing the best evidence. It was opined that this conduct exposed a serious deficiency in knowledge and experience in handling cases involving electronic evidence. Precautionary measures have to be borne in mind when it comes to dealing with such cases..In this context, the judge specifically ordered that,.“In the event electronic devices like mobile phone, laptop, tablet, etc. are seized as stolen property and are required to be produced and identified during trial, any prayer for return interim custody of such devices pending investigation enquiry or trial shall not be granted till the IMEI number or other unique identification number, as applicable to the concerned device including its brand/product number and manufacturing details are ascertained and noted in the case records for identification of such device during trial. Till such ascertainment is made the concerned devices shall be retained in safe custody of the Court in accordance with law.”.The Court also directed that the order be circulated to all judicial officers of the State for awareness and due compliance of the aforesaid safeguards..Read order below.