HC: Can rely on WhatsApp messages during probe

Saurabh Malik

Tribune News Service

Chandigarh, January 14

The Punjab and Haryana High Court has ruled that an investigating agency can rely upon WhatsApp messages during the course of a probe. Justice Jaishree Thakur of the High Court added that reliance could, however, be placed on the messages only after complying with provisions of Section 65-B of the Indian Evidence Act.

The rider

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Justice Jaishree Thakur of the Punjab & Haryana High Court added that reliance could, however, be placed on the messages only after complying with provisions of Section 65-B of Indian Evidence Act.

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Needless to say that the Narcotics Bureau will always be at liberty to rely upon the WhatsApp messages after due compliance with provisions of Section 65-B. – Justice Jaishree Thakur

The provision makes it clear that electronic records are required to be certified by a person occupying a responsible official position for being admissible as evidence in court proceedings.

Justice Thakur was hearing a petition filed against the Union of India by Rakesh Kumar Singla through senior advocate RS Rai and Rubina Vermani for grant of regular bail to the petitioner in a case registered on June 12, 2020, under provisions of the NDPS Act at the NCB police station, zonal unit, Sector 25(W), Chandigarh.

“Needless to say that the Narcotics Bureau will always be at liberty to rely upon the WhatsApp messages after due compliance with provisions of Section 65-B…,” Justice Thakur ruled.

The ruling came after counsel Sanjay Vashisth, appearing on behalf of the Narcotics Bureau, submitted that almost 57,000 tablets of tramadol hydrochloride (100 mg) were recovered, which amounted to commercial quantity. A co-accused admitted to having sent the consignment to another person at the petitioner’s behest and was totally unaware of the contents of the parcel, he argued.

It was also argued that screenshots of WhatsApp messages, available with the NCB, would connect the petitioner with the contraband. A message showed transfer of some amount by the petitioner to the account belonging to the husband of the co-accused. It was also argued that other persons were also involved in the sale and purchase of the contraband as evident from the WhatsApp messages.

Rai, on the other hand, argued that the petitioner had been implicated on the basis of the disclosure statement by the co-accused and his own statement. Such a statement could not be relied upon.

Justice Thakur asserted that the answer was negative to the court query whether a certificate under Section 65B was available to authenticate the messages. A recent Supreme Court judgment held that a certificate under Section 65B was required when reliance was being placed upon electronic record. As such, the message would be of no evidentiary value as on date. “The investigation into the matter is complete and the challan stands presented and, therefore, this court is of the opinion that no useful purpose would be served in keeping the petitioner behind bars. The instant petition is allowed and the petitioner is directed to be released on regular bail…,” Justice Thakur asserted.