Investing authorities can only rely upon the WhatsApp messages during the investigation if such messages are certified u/s 65 B of the Evidence Act. Punjab and Haryana High Court gave this judgment in the case of Rakesh Kumar Singla vs. Union of India [CRM-M no. 23220 of 2020] by the single bench of Hon’ble Justice Jaishree Thakur.
In the above-cited case, HC was hearing a plea for granting bail under Narcotics Drugs and Psychotropic Substances Act, 1987. For the purpose of opposing the bail application, the Narcotics Control Bureau had contended that they have WhatsApp chats against the accused, connecting the petitioner with the contraband. NCB stated that the Drugs were transferred between the accused and a few other people were also involved in the sale and purchase of the said drugs and it was evident from the screenshots of the WhatsApp Messages.
High Court enquired NCB if they had a certificate for proving that the Whatsapp messages have any evidentiary value u/s 65 B (4) of the Evidence Act.
But NCB didn’t have the certificate for proving the same and hence, High Court opined that on the basis of the statements of the accused, they could prima facie be allowed bail.
HC relied on the Supreme Court judgment of Arjun Pandit Rao Khotkar vs. Kailash Kushanrao Gorantyal and Tofan Singh vs. State of Tamil Nadu where the statements to Narcotics officers were not confessional statements and could not by themselves be relied upon during trial.
Relying upon the previous judgments HC said that “ 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”.
HC stated that the messages without the certificate do not have any evidentiary value and hence, cannot be relied upon. HC opined that Section 65-B 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.
Therefore, HC came to the conclusion 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. And hence, the court allowed the bail plea of the accused.