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WhatsApp Messages Would Have No Evidentiary Value Until They Are Certified According to Section 65b of the Indian Evidence Act: Punjab & Haryana High Court

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Brief facts of the case

Paramjit Kaur, the proprietor of Brioshine Pharma, a licensed chemist, booked two consignments. The first consignment, on 10.06.2020 and the, on 12.06.2020. Then, secret information that the two consignments were contraband was received. The Narcotics Bureau, Headquarters, Chandigarh reached the Regional Office of DTDC Courier Agency in Panchkula and called Paramjit Kaur (consignor of the parcels) 12.6.2020. She confirmed that she had booked the parcels. They recovered 20,000 tablets of Tramadol Hydrochloride 100 mg in the package opened at Panchkula. Simultaneously on 12.06.2020, the Narcotics Bureau Amritsar reached DTDC Office, Ferozepur, and arrested one Bhavnish s/o Prem Kumar Dutta, the receiver of the consignment sent out on 10.06.2020. They recovered 37,000 tablets of Tramadol Hydrochloride 100 mg. 

Paramjit Kaur made a disclosure statement on 12.06.2020 that Rakesh Kumar Singla was the person, who had sent the contraband to her for its ongoing shipping to Bhavnish Kumar in Ferozepur. Relying upon the statement made by Paramjit Kaur, the Petitioner received a notice u/s 67 of the NDPS Act. He was arrested on 14.06.2020 and subsequently produced before the Special Court. After two days of remand of the Petitioner, he is in judicial custody. After that, the Petitioner applied for a regular bail grant. Once rejected, the matter had come up before High Court. Similarly, the Co-Accused Paramjit Kaur and Bhavnish Kumar also faced remand to judicial custody. A petition was filed for a grant of regular bail to the Petitioner.

Arguments before the Court

Counsel appearing for the Petitioner argued that the Petitioner was arrested later, not immediately, nor was any recovery of contraband effected from him and therefore, it was an illegal detention. The Counsel also submitted that only relying upon the disclosure statement made by Paramjit Kaur (co-accused) he had been involved in the case and submitted that one could not rely upon such a statement.

Counsel appearing on behalf of the Narcotics Bureau submitted that they recovered almost 57,000 tablets of Tramadol Hydrochloride 100 mg, which is of commercial quantity. Paramjit Kaur had admitted that she had sent the consignment to Bhavnish Kumar under her signatures on the Petitioner’s desire. In her statement, she stated that she was unaware of the contents of the parcel sent to Balaji Traders at Ferozepur. It is also contended that there are screenshots recovered of Whatsapp chat with the NCB, which state that the Petitioner was connected with the said contraband because there was a message showing the transfer of an amount by the Petitioner into the account of Harjinder Singh (husband of Paramjit Kaur).

Observation of the Court

In this case, the Court observed that the Narcotics Bureau is relying not only upon the statement given by Paramjit Kaur involving the Petitioner but also upon a statement issued u/s 67 of the NDPS Act by the petitioner. The Court relied upon the Supreme Court judgment with this regard, i.e. Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others; and held that a Section 65B of the Indian Evidence Act is required when the reliance was upon an electronic record. Thus, the said message would be of no evidentiary value as of date. The bench granted liberty to the NCB to rely on the WhatsApp messages after complying with Section 65B. 

Court’s Decision

The Court allowed the petition and stated that WhatsApp messages would have no evidentiary value until they are certified according to Section 65B of the Indian Evidence Act.

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