The High Court has observed that WhatsApp messages will have no evidentiary value unless they are certified as per Section 65B of the Indian Evidence Act.

The Court made this observation while deciding a bail application in a case under the Narcotics Drugs and Psychotropic Substances Act(NDPS Act).

To oppose the bail application, the Narcotics Control Bureau(NCB) had relied on certain alleged WhatsApp chats of the accused. The NCB submitted that screenshots of WhatsApp messages connected the petitioner with the contraband.

However, the Court asked if such messages are accompanied with Section 65B certificate.

On getting a negative reply, the bench observed :

"The recent judgment rendered by the Supreme Court in the matter of Arjun Panditrao Khotkar Vs. KailashKushanrao 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. Therefore, the said message would be of no evidentiary value as on date".

The bench however granted liberty to the NCB to rely on the WhatsApp messages after complying with Section 65B.

"Needless to say that the Narcotics Bureau would always be at liberty to rely upon the Whatsapp messages after due compliance of provisions of Section 65-B of the Indian Evidence", the bench observed while granting bail to the accused.

The NCB had placed reliance on certain custodial statements made by the accused under Section 67 of NDPS Act to argue that prima facie offence is made out. However, the bench chose not to rely on Section 67 statements in the light of the recent Supreme Court judgment in Tofan Singh v Union of India which held that such statements amount to custodial confessions, rendering them inadmissible in evidence.