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WhatsApp messages to hold evidentiary value only upon issue of certificate under Section 65B of the Indian Evidence Act: High Court of Punjab and Haryana
A petition for the grant of a regular bail was filed before the High Court of Punjab and Haryana by the petitioner, Rakesh Kumar Singla who allegedly undertook consignments of delivering a commercial quantity of contraband containing Tramadol Hydrochloride tablets and was arrested under the provisions of the Narcotic Drugs and Psychotropic Substances Act,1985 (NDFS) and remanded to judicial custody thereafter.
The advocate appearing for the petitioner, Senior Advocate R.S. Rai submitted that the petitioner was illegally being detained as no recovery was made from him, and nor was, he arrested at the spot of transaction. They claimed that a mere statement by one of the co-accused, Paramjit Kau cannot be relied on. The Advocate, Mr. Sanjay Vashisth representing the Narcotics Control Bureau (NCB) submitted that Paramjit Kumar admitted to further transferring the consignment to the other co-accused, Bhavnish Kumar. Further, it was submitted that the NCB had recovered the WhatsApp messages of the petitioner and both the co-accused, which made reference to money transactions between them.
The single-judge bench, Justice Jaishree Thakur, noting the submissions made stated that the evidence produced during the trial of the case would determine the complicity of the petitioner. Observing that the NCB has placed heavy reliance on the WhatsApp messages of the petitioner, the court inquired whether a certificate under Section 65B of the Indian Evidence Act,1872 (IEA) was obtained by the Bureau since such a certificate was made necessary for admission of electronic evidence by the Supreme Court in its judgment in the case, Arjun Pandithrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. ((2020) 7 S.C.C. 1). Noting that no such certificate was obtained by the NCB, the court stated that the messages held no evidentiary value and that the petitioner could not be detained merely upon the statements of the co-accused.
Hence, the court granted the petitioner’s request for regular bail upon the execution of a surety bond of Rs.10,00,000. The court further stated that the NCB could use the WhatsApp messages as evidence in the trial proceedings, provided, a certificate under Section 65B of the IEA is obtained.
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