Whatsapp Messages Will Have No Evidentiary Value Without Certificate: Punjab And Haryana High Court

Chandigarh, 17 Jan 2021:

The Punjab and Haryana High Court has ruled that WhatsApp messages may be relied upon by investigating agencies during a crime investigation but a certificate Section 65B of the Indian Evidence Act is essential for the same (Rakesh Kumar Singla v. Union of India).

Whatsapp messages would be of no evidentiary value without a Section 65B certificate, a single-judge Bench of Justice Jaishree Thakur ruled.

Section 65B requires electronic records to be certified by a person occupying a responsible official position for the same to be admitted as evidence in court proceedings.

The Court was hearing a plea for grant of regular bail in a case registered under the Narcotics Drugs and Psychotropic Substances Act, 1987.

“The recent judgment rendered by the Supreme Court in the matter of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others [(2020) 7 SCC 1] has held that a certificate Section 65B of the Indian Evidence Act is required when reliance is being placed upon electronic record....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,” the Court said.

During the hearing, petitioner’s counsel Senior Advocate RS Rai assisted by advocate Rubina Vermani submitted that the petitioner had been implicated on the basis of the disclosure statement by the co-accused as well as his own statement, which could not be relied upon.

On the other hand, advocate Sanjay Vashisth, appearing on behalf of the Narcotics Bureau, submitted that almost 57,000 tablets of tramadol hydrochloride (100 mg) were recovered from petitioner, which amounted to commercial quantity.

A co-accused admitted to sending the consignment to another person at the petitioner’s behest and was totally unaware of the contents of the parcel, he submitted.

Pertinently, he asserted that screenshots of WhatsApp messages, available with the Narcotics Control Bureau, connected the petitioner with the contraband.

One of the messages referenced a transfer of some amount by the petitioner to the account belonging to the husband of the co-accused. Still basing assertions on WhatsApp messages, the counsel for the NCB claimed that other persons were also involved in the sale and purchase of the contraband, as was evident from the messages.

To a query as to whether the messages had been certified as mandated by Section 65-B, the response was negative.

The Court, therefore, emphasized that such certification was necessary in terms of a recent Supreme Court judgment, Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others.

As such, the messages in question in the case at hand did not have evidentiary value due to the absence of such certificate, the Court said.

A further ground upon which the Court allowed bail was the fact that only statements by himself and a co-accused were found implicating him. As far as the petitioner's own inculpatory statement was concerned, he could prima facie be allowed bail, since the Supreme Court in Tofan Singh v. State of Tamil Nadu had ruled that statements to Narcotics officers were not confessional statements and could not by themselves be relied upon during trial.

Based on these, the Court allowed the bail plea while opining that there was no useful purpose in keeping the petitioner behind bars.

Reference: Punjab and Haryana High Court, Rakesh Kumar Singla vs UOI, CRM-M No. 232/2020, D/d 14.1.2021. Bar And Bench