Understanding Section 65 of Indian Evidence Act and if Whatsapp chats are evidence in Aryan Khan case

On 20 October, special judge VV Patil denied bail to Aryan Khan, accused of committing offences under sections of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. One of the reasons he cited for denying bail was that Aryan Khan’s WhatsApp chats appeared to reveal that he regularly indulged in “illicit drug activities”. “WhatsApp chats prima facie reveals accused Aryan Khan is dealing in illicit drug activities for narcotic substances on regular basis. Therefore, it cannot be said that Khan is not likely to commit similar offence while on bail,” judge VV Patil said in his order. Lawyers of Aryan Khan are now arguing that their client’s WhatsApp chats are not admissible as evidence in court during the ongoing bail hearing in Bombay High Court. So, is it right to say that WhatsApp chats are admissible in court? Can they be used as evidence — what does the law say and how does it impact Shah Rukh Khan’s son. WhatsApp chats and the law As per the law, Section 65 of the Indian Evidence Act deals with the issue of electronic evidence, including e-mails, chats and social media posts. As per the law, electronic evidence is considered “secondary evidence”, unless the device itself is produced before the court. As per Bar and Bench, Section 65B of the Act engrafts the procedure regarding admissibility of electronic records. Sub-section 4 of Section 65B provides for the condition of obtaining a certificate before adducing electronic evidence. The Arjun Panditrao Khotkar case The Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantya case in 2020 assumed importance as it was then that the Supreme Court clarified that a certificate is a pre-condition to the admissibility of evidence by way of electronic record under Section 65B of the Act. Without such a certificate, electronic communication is not admissible as evidence. As per the law: (a) There must be a certificate which identifies the electronic record containing the statement (b) The certificate must describe the manner in which the electronic record was produced (c) The certificate must furnish the particulars of the device involved in the production of that record (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device However, a bench headed by Justice R F Nariman later clarified that if the device itself, along with the owner/authorised user of the device on which the original information is stored, is produced before the court, the “certificate” is not required. What are Aryan’s lawyers arguing? According to Aryan’s lawyers, he should be granted bail because no drugs were recovered from him, and WhatsApp conversations used by the Narcotics Control Bureau (NCB) were not related to the cruise. Senior advocate and former Attorney General of India Mukul Rohatgi arguing for Shah Rukh’s son said during his bail hearing on 27 October, “These WhatsApp chats have nothing to do with the incident. Those are earlier chats, when I (Aryan) was abroad and on the basis of which they are claiming that I (Aryan) was dealing with people, they suspect to be international traffickers.” Earlier too, senior advocate Amit Desai, while presenting a case in favour of Aryan, argued, “The chat messages which they tried to suggest as evidence is an extra-judicial is confession, which is a weak form of evidence. Also, the chats have no Section 65B certificate.” However, the special court said Khan’s case stood distinguished as it was at an investigation stage. In its bail denial order, the court had said, “Even if assuming that there is no certificate under Section 65(b) of the Indian Evidence Act at the stage of investigation, it is not necessary.” It is now left to be seen what happens in the matter. But in the meantime, Aryan continues to wait to see if he will get bail . With inputs from agencies