The Madhya Pradesh High Court has affirmed that an accused in a drug offence case has the right to seek summoning of call detail records at the stage of entering into defence, reinforcing that the right to a fair trial under Article 21 includes the right to access evidence necessary for mounting a defence. This ruling clarifies the procedural boundaries between investigation and trial stages under the new Bharatiya Nagarik Suraksha Sanhita, 2023.
Background & Facts
The Dispute
The revision petitioner, Rajesh Mali, is accused alongside three others in connection with Crime No. 236/2024 registered at P.S. Malhargarh, Mandsaur, under Sections 8, 22, 15, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He claims he was abducted on 5th October 2024 from Village Araniya and forcibly taken to Krishi Upaj Mandi, Malhargarh, where he was falsely implicated in possession of 500 gm of marijuana and 5 kg of poppy straw. He alleges that his mobile phone records from 5th to 6th October 2024 would corroborate his alibi and prove coercion.
Procedural History
The petitioner filed an application under Sections 94-95 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Sections 65 and 65(B) of the Indian Evidence Act, seeking summoning of call detail records (CDR) of specific individuals mentioned in his application. The Additional Special Judge, NDPS Act, Mandsaur, partially allowed the application:
- Allowed: CDR summoning for persons listed in Para 7.1, 7.2, 7.7, and 7.8
- Rejected: CDR summoning for persons listed in Para 7.3 to 7.6 and 7.10 to 7.13, without providing reasons
Relief Sought
The petitioner sought full relief by directing the trial court to summon all CDRs referenced in his application, arguing that denial violated his constitutional right to a fair trial and effective defence.
The Legal Issue
The central question was whether an accused can invoke the power to summon call detail records under Section 256(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 at the stage of entering into defence, and whether such a request can be denied without reasoned justification.
Arguments Presented
For the Petitioner
The petitioner relied on Sarla Gupta v. Directorate of Enforcement (2025) 7 SCC 626, arguing that Article 21 guarantees the right to a fair trial, which includes the right to produce documents in support of defence. He contended that Section 256(3) BNSS explicitly permits an accused to apply for the production of documents at the stage of entering into defence, and that the trial court’s refusal to consider CDRs for certain persons was arbitrary and violative of natural justice.
For the Respondent/State
The State relied on State of Rajasthan v. Shravansingh alias Baba (2024) to argue that an accused has no right to invoke Section 91 BNSS (analogous to old CrPC Section 91) at any stage prior to framing of charges. It further contended that allowing CDR summoning at this stage would disrupt investigation and enable fishing expeditions.
The Court's Analysis
The Court examined the evolution of procedural rights under the BNSS and distinguished between pre-trial investigative powers and trial-stage defence rights. It held that Section 91 BNSS is not the appropriate mechanism for an accused to seek documents during investigation, but Section 256(3) BNSS explicitly grants the accused the right to apply for production of documents at the stage of entering into defence.
"At the stage of entering upon defence, an accused can apply for the issue of process for the production of any document or thing in accordance with Section 233(3) CrPC [Section 256(3) BNSS]. ... The right to defend consists of the right to lead the defence evidence by examining the witnesses and producing the documents."
The Court emphasized that the trial court’s rejection of the application for certain persons was not only unreasoned but also inconsistent with the constitutional mandate under Article 21. The Court noted that the State’s reliance on Shravansingh alias Baba was misplaced, as that case dealt with Section 91 BNSS during investigation, not Section 256(3) BNSS at the defence stage.
The Court further clarified that while CDRs may be summoned at the defence stage, they cannot be used for the purpose of framing charges, preserving the separation between investigative and adversarial phases.
The Verdict
The petitioner won. The Court held that an accused has the right under Section 256(3) BNSS to seek summoning of call detail records at the stage of entering into defence, provided the request is relevant to the defence. The trial court’s partial rejection without reasons was set aside, and it was directed to preserve and, if found relevant, summon the CDRs for the previously rejected persons.
What This Means For Similar Cases
Defence Stage Is the Critical Window for Document Summoning
- Practitioners must now file applications for document production under Section 256(3) BNSS precisely at the stage of entering into defence, not earlier
- Applications filed under Section 94-95 BNSS prior to framing of charges will be dismissed unless tied to investigation-stage necessity
- Failure to file at the correct stage may result in waiver of the right to access critical evidence
Reasoned Orders Are Mandatory for Denial of Defence Evidence
- Trial courts must record specific reasons for rejecting any application for document summoning under Section 256(3) BNSS
- Blanket rejections without analysis of relevance or necessity violate Article 21 and are liable to be set aside on revision
- Courts must distinguish between legitimate defence needs and speculative fishing expeditions
CDRs Are Not Per Se Inadmissible, But Use Is Restricted
- Call detail records may be summoned for defence purposes but cannot be used to establish guilt at the stage of framing charges
- Prosecution cannot rely on such records to build a prima facie case unless formally produced and admitted during trial
- Defence counsel must clearly articulate how the CDRs support alibi, coercion, or lack of mens rea to justify their relevance
