Final Order 1

Order Details: Order Below EX 1
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ORDER BELOW THE APPLICATION FOR RETURN OF PROPERTY
IN NOTICE NO.413/N/2020
1. The applicant/accused is praying for return of Samsung A50
mobile phone seized by Santacruz Police Station in C.R.No.203/2020,
registered u/sec.419, 420, 170, 506, 34 of IPC.
2. The I.O. filed his say. He opposed the application.
3. The applicant/accused and coaccused pretended to be
government servants and extracted handsome amount of Rs. 50,000/
from the first informant under the threat of conducting raid at his shop.
The contents of the FIR reveal that the applicant/accused showed his id
card to the informant in his mobile phone. He also showed the
photographs of some places stating that he has conducted raid at those
places. During the course of investigation mobile phone of the accused
was seized.
4. The investigation is still in progress. The applicant used the
above referred mobile phone for the commission of offence. The id card
and photographs shown by him to the first informant are available in the
said mobile phone. He threatened the first informant on the basis of said
documents in electronic format. The said documents are important from
the point of investigation as well as trial against the accused. The said
documents and other information in respect of the crime might be stored
in the said mobile phone. This information is important to establish the
nexus of the accused with the crime. The record of his access with co
accused, their conversation through social media can be found in the
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mobile phone of the applicant. It is necessary to preserve the said
information as it is a primary piece of evidence. It being a piece of
electronic evidence, it is necessary to keep it intact as stored on the
internal storage and memory card of the said mobile phone. If the said
mobile phone is released in favour of the applicant, the applicant may
delete the information or tamper with it so as to render it unuseful from
evidentiary point of view. The prosecution will be hampered in such a
case. Even if the information and data stored on internal storage and
memory card of said mobile phone is obtained on a secondary storage
device, the data so obtained in the secondary storage device does not have
the sanctity as primary evidence. It is the device on which said data is
generated, is important from the point of evidence. Further, there is
always risk of damage to the original devise in course of cloning or copying
the data on the said devise. It will not be proper to compel the
investigating machinery to take such risk.
4. Thus, considering all these circumstances, it will not be proper
to release the said mobile phone in favour of the applicant. Hence, the
following order :
O R D E R
The application is rejected.
(Pragati B. Yerlekar)
Mumbai Metropolitan Magistrate
Date: 11092020 71st Court, Bandra, Mumbai.
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