Mumbai: How far can the WhatsApp chats of an accused be used as evidence in a given case? This issue continues to be the subject of debate, currently with respect to the case of Aryan Khan. On Wednesday, a special NDPS court denied Aryan Khan bail mainly relying on alleged WhatsApp chats between him and certain people who, the NCB claims, are members of an international drugs racket. So, can these chats be helpful for the NCB to establish its case against Aryan Khan?
Most legal experts opine that “it cannot be the sole basis to prosecute a person”.
Aman Hingorani, senior counsel, Supreme Court of India, said that although it could be used as evidence, it cannot be used as the ‘sole’ basis to convict a person. He said, “WhatsApp chats, being digital evidence, are admissible as evidence. However, it has to be conforming to the safeguards provided under the Evidence Act. It also has to be certified under section 65-B of the Information & Technology Act. But such chats cannot be the sole basis to convict a person.”
The senior counsel further added, “Court cannot rely on such chats alone as it would have to be backed up with substantial evidence. Like for instance, in a drugs case, there is a chat between an accused with someone for procuring etc. the prosecution should then establish the transaction too and cannot highlight the chats alone."
Hingorani emphasised the fact that the prosecution has to establish the actual transaction based on these chats. He said, “Thus, such chats cannot be the sole basis to convict someone.”
Explaining the NCB case against Aryan, Hingorani said, “In fact, in criminal law, the prosecuting agency should first investigate and probe the prima facie offence and then arrest the person but in this case, the agency has taken an altogether different approach.”
Meanwhile, senior counsel Prasad Dhakephalkar of the Bombay High Court said that whether such chats could be relied on or not would have to be decided at the time of trial.
“Firstly, under the IT Act, the chats need to be certified. And then further, whether such chats can be relied on to prosecute someone will have to be decided at the time of trial during evidence stage,” Dhakephalkar said.
“The concerned court will have to look into the nature of such chats as to whether it indicates personal consumption or was for procuring and distribution etc. All this can be taken into account during trial,” he added.