Certification u/s 65 B(4) of the Evidence Act must be available for relying upon the WhatsApp messages: Punjab and Haryana High Court

 on 16 01 CRM M No.2322201 IN THE HIGH COURT FOR THE STATES OF PUNJAB ANDHARYANA AT CHANDIGARHCRM M No.232220Date of Decision.14.01.2021Reserved on 06.01.2021(Heard through VC)Rakesh Kumar Singla ...PetitionerVsUnion of India ...RespondentCORAM:HON BLE MS. JUSTICE JAISHREE THAKURPresent:Mr. R.S. Rai Senior Advocate with Ms. Rubina Vermani Advocate for the petitioner.Mr. Sanjay Vashisth AdvocateSenior Panel Counsel for NCB. . JAISHREE THAKUR J. 1.The instant petition has been filed for grant of regular bail tothe petitioner in case bearing Crime No.33 2020 dated 12.06.2020 underSections 8 21 22 29 of NDPS Act at Police Station NCB Zonal Unit Sector 25(W) Chandigarh.2.The facts in brief as alleged are that two consignments werebooked by one Paramjit Kaur proprietor of Brioshine Pharma a licensedchemist at SCO No.38 Cabin 2 1st Floor Sector 11 Panchkula in the nameof Balaji Traders Shop No.158 A Near DAV Girls School Bazar No.1 Ferozepur Cantt 152001 through DTDC Courier Agency. The firstconsignment was booked on 10.06.2020 and the second consignment wasbooked on 12.06.2020. 3.On receipt of secret information that two consignmentscontained contraband the Narcotics Bureau Headquarters Chandigarh on 16 01 CRM M No.2322202 arrived at the Regional Office of DTDC Courier Agency at Panchkula andcalled Paramjit Kaur on 12.6.2020whoconfirmed that she had booked the parcels herself. One parcel was openedat Panchkula and 20 000 tablets of Tramadol Hydrochloride 100 mgwere recovered. Simultaneously on 12.06.2020 the Narcotics Bureau Amritsar arrived at DTDC Office at Court Road Ferozepur and arrested one Bhavnish s o Prem Kumar Dutta the person towhom the consignment had been sent on 10.06.2020 and recovered 37 000tablets of Tramadol Hydrochloride 100 mg3 It is submitted that he has been implicated only on the basis of a disclosurestatement made by a co accused Paramjit Kaur under Section 67 of theNDPS Act and also on the basis of his own self inculpatory statementrecorded under Section 67 of the NDPS Act while he was in custody. It issubmitted that such a statement can not be relied upon. In order to buttresshis arguments learned Senior Advocate relies upon the judgment passed bythe Hon’ble Supreme Court in Tofan Singh Vs. State of Tamil Nadupassed in Criminal Appeal No.1513 decided on 29.10.2020. 5.Per contra Mr. Sanjay Vashisth learned Advocate appearingon behalf of the Narcotics Bureau submitted that there has been a recoveryof almost 57 000 tablets of Tramadol Hydrochloride 100 mgwhich is of commercial quantity. Paramjit Kaur hasadmitted to sending the consignment to Bhavnish Kumar under her ownsignatures at the behest of the petitioner. She stated that she was totallyunaware of the contents of the parcel sent to Balaji Traders at Ferozepur. Itis also argued that there are screen shots of Whatsapp messages availablewith the NCB which would connect the petitioner with the said contraband as there is a message available showing transfer of an amount by thepetitioner into the account of Harjinder Singh husband of Paramjit Kaur. Itis also argued that there are other persons involved in the sale and purchaseof contraband as would be evident from the Whatsapp messages. 6.Mr. Sanjay Vashisth also submitted that the petitioner hasadmitted before the Investigating Officer that he knew Paramjit Kaur whoran Brioshine Pharma at Panchkula and she booked the said consignmentson his asking and therefore once having recorded his involvement in hisown handwriting he would not be entitled to the concession of regular bail. on 16 01 CRM M No.2322204 7.I have heard learned Advocate for the parties and with theirassistance have gone through the paper book as well as the case laws cited.8.The facts are not in dispute regarding seizure of twoconsignments sent by Paramjit Kaur to Bhavnish Kumar at Ferozpuer. Admittedly both the consignments contained contraband of TramadolHydrochloride 100 mgwhich is ofcommercial quantity. The parcel that was sent on 10.06.2020 contained37 000 tablets whereas the parcel that was seized on 12.06.2020 atPanchkula contained 20 000 tablets of aforesaid contraband. It is alsoadmitted fact that Paramjit Kaur in her disclosure statement named RakeshKumar Singla petitioner herein as the person who asked her to forwardboth the consignments to Bhavnish Kumar at Ferozepur however thelearned Senior Advocate for the petitioner has urged that the said disclosurestatement cannot be relied upon nor can any statement made by him in thejudicial custody be relied upon as incriminating evidence against him. 9.A Division Bench of Hon ble Supreme Court in Tofan SinghVs. State of Tamil Nadu16 SCC 31 while discussing the ratio laiddown in decisions of Raj Kumar Karwal Vs. Union of India2SCC 409 and Kanhiyalal Vs. Union of India4 SCC and certainother judgments observed that the ratio laid down in the case of KanhiyalalVs. Union of Indiais required to be re looked and thus referred thematter to a Larger Bench. The matter was referred to a Larger Bench ofthree judges who culled out following two issues for determination: “1. Whether an officer “empowered under Section 42 of theNDPS Act” and or “the officer empowered under Section 53 ofthe NDPS Act” are “Police Officers” and therefore statements on 16 01 CRM M No.2322205 recorded by such officers would be hit by Section 25 of theEvidence Act and 2. What is the extent nature purpose and scope of the powerconferred under Section 67 of the NDPS Act available to andexerciseable by an officer under Section 42 thereof andwhether power under Section 67 is a power to recordconfession capable of being used as substantive evidence toconvict an accused.”The Larger Bench in its judgment has concluded in para 152that “a confessional statement made before an officer designated underSection 42 or Section 53 can be the basis to convict a person under theNDPS Act without any non obstante clause doing away with Section 25 ofthe Evidence Act and without any safeguards would be a directinfringement of the constitutional guarantees contained in Articles 14 20(3) and 21 of the Constitution of India.’’ It was further held that thejudgments rendered in Kanhiyalal and Raj Kumar Karwal(supra) do not state the correct law and are thus overruled. The referencewas therefore answered by stating: “(i) That the officers who are invested with powers underSection 53 of the NDPS Act are “police officers” within themeaning of Section 25 of the Evidence Act as a result of whichany confessional statement made to them would be barredunder the provisions of Section 25 of the Evidence Act andcannot be taken into account in order to convict an accusedunder the NDPS Act.(ii) That a statement recorded under Section 67 of the NDPS on 16 01 CRM M No.2322206 Act cannot be used as a confessional statement in the trial of anoffence under the NDPS Act.”10.In the instant case the Narcotics Bureau is relying not onlyupon the statement given by a co accused implicating the petitioner hereinbut also upon a statement given under Section 67 of the NDPS Act by thepetitioner. The petitioner has been nominated as an accused on thedisclosure statement of co accused Paramjit Kaur who had sent theconsignment to Ferozepur. The complicity of the petitioner will have to bedetermined by the quality of evidence led during trial. As far as the selfinculpatory statement relied upon this Court is prima facie of the opinionthat the ratio as laid down in the reference order in Tofan Singh s casewould come to the aid of the petitioner to allow him the benefit of regularbail. 11.Learned counsel for the NCB has also placed reliance onWhatsapp messages by which the petitioner could be implicated. However on the asking of this Court whether a certificate under Section 65B of theIndian Evidence Act is available at the present moment to authenticate thesaid messages the answer is in negative. The recent judgment rendered bythe Supreme Court in the matter of Arjun Panditrao Khotkar Vs. KailashKushanrao Gorantyal and others7 SCC 1 has held that acertificate Section 65B of the Indian Evidence Act is required when relianceis being placed upon electronic record. Therefore the said message wouldbe of no evidentiary value as on date. 12.The investigation in the matter is complete and the challanstands presented and therefore this Court is of the opinion that no usefulpurpose would be served in keeping the petitioner behind bars. The instant on 16 01 CRM M No.2322207 petition is allowed and the petitioner is directed to be released on regularbail on execution of adequate personal surety bond of an amount of Rs.10Lakhs to the satisfaction of concerned trial Court Duty Magistrate. However any observation made herein shall not be construed to be anexpression on merits of the case. 13.Needless to say that the Narcotics Bureau would always be atliberty to rely upon the Whatsapp messages after due compliance ofprovisions of Section 65 B of the Indian Evidence.(JAISHREE THAKUR) JUDGE January 14 2021Pankaj Whether speaking reasoned Yes NoWhether reportable Yes No 

Summary: 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.