"Except whats app chats with accused no.1, there is no other evidence to show that applicant was indulging in such activity. Merely on the basis of whats app chats, it cannot be gathered that applicant used to supply contraband to accused nos.1 & 2..."Special NDPS Court in bail order for Aachit Kumar dated 30 October 2021
Barely a week after he'd basically relied on vague WhatsApp chats to hold that Aryan Khan appeared to be involved in a conspiracy to sell drugs, special NDPS judge VV Patil granted bail to one of the other accused in the NCB's drug cruise case, Aachit Kumar.
The Narcotics Control Bureau had arrested 22-year-old Kumar based on WhatsApp chats recovered from Khan, who had allegedly purchased ganja i.e. cannabis from him at some point of time. 2.6 grams of ganja were recovered from Kumar.
Based on this, the NCB claimed that Kumar was a drug supplier, and had said he should not be granted bail.
The judge was not convinced. "However it is pertinent to note that though respondent claimed that applicant is supplier, respondent failed to bring on record specific evidence to show that applicant is dealing in business of supplying the contraband," he noted in the bail order.
While the NCB were being given a long-overdue slap on the wrist for lackadaisically using random WhatsApp chats to implicate people in drug cases – something they tried a year ago with Rhea Chakraborty et al as well – the Hyderabad Police decided to do one even better than them.
In startling videos shared on social media, police and excise officials in Hyderabad can be seen stopping random people on the street and searching their phones for messages about 'ganja, weed and stuff'.
These were not hardened drug dealers who had been identified through investigations and were now being tracked down – the Hyderabad Police Commissioner Anjani Kumar told the media there was a drive going on to prevent ganja peddling.
He also believed there was nothing wrong with what was happening. “We have every right to check anything, whether it is a mobile phone, iPad, laptop, pen drive or a hard disk when we find something suspicious about the movement of people in the area of any crime incident,” he said, according to the Hindustan Times.
However, the checks are happening in places where there is merely a suspicion of crime, not actual scenes where 'crime incidents' have taken place.
The local excise superintendent told The Hindu that they check phones of people if "there is a suspicion that a person has come to the locality for ganja".
The combination of these approaches – random searches of phones and then building cases purely based on casual WhatsApp or other messages – is something that Indian citizens may need to be increasingly worried about.
Reports of similar searches to those in Hyderabad are now even coming out of Bengaluru, while messages on a phone have been central to the Delhi Police's conspiracy case regarding the February 2020 Delhi riots and even an NIA terror case, where they said messages about 'ghee' were actually about explosives.
These actions of the police and other agencies, however, are not in compliance with the law.
No Warrant, No Search
For a long time since the advent of mobile phones, there had been little judicial appreciation of the way in which a phone is an integral part of one's life these days – including one's private life.
This has meant that when police investigate a case, they routinely get people to open up their phones, and then sift through all the information on them, and then go on to interpret the information they find as they see fit without a care for privacy or context.
Take for example the way in which the NCB tried to make a big deal out of chats between Aryan Khan and his friend Arbaaz Merchantt where they talked about 'having a blast', saying this was an indication they planned to do drugs on the ill-fated cruise.
However, nobody with any grasp of English or common sense would even interpret that phrase as being a reference to doing drugs on its own.
As senior advocate Mukul Rohatgi noted during arguments for Aryan Khan at the Bombay High Court, the chats between Aryan and Arbaaz where there is any mention of ganja, took place in 2018, not in connection with the messages about having a blast.
Random searches of phones and searching through chat histories cannot provide context for personal communications, and using these to conduct criminal offence investigations is a gross invasion of privacy.
Some recognition for this finally came from the courts in the Karnataka High Court's judgment in Virender Khanna vs State of Karnataka on 12 March 2021.
The court noted that smartphones had become increasingly important in this day and age, and a person's phone is now "the central device for running the affairs of the person".
It then held that the provisions of the Code of Criminal Procedure (CrPC) for searching a person's property would have to apply to conducting a search of their smartphone.
The police can ask a person to open their phone or give them access to an email account, including through a formal notice under Section 91 of the CrPC, but in the normal course of an investigation, they do not have the power to compel them to allow access if they refuse.
To get access to a person's property, including a smartphone, if they refuse, the police would have to obtain a search warrant after making a request to a court.
Courts can grant search warrants when they feel a person is refusing to share a document or thing of interest to a case which is in their possession (Section 93, CrPC), or that a place has some stolen property or forged document, etc (Section 94, CrPC).
Search warrants can also be issued for 'closed places', and once issued, the person in charge of the closed place has to comply with it (Section 100, CrPC) – hence requiring someone to open up their phone or email account if a warrant is actually produced.
However, search warrants are not supposed to be granted at the drop of a hat (even though this is often the case in practice).
According to the Karnataka High Court,
"While issuing a search warrant, the concerned Court would have to indicate as to what smart phone, electronic equipment or email account is to be searched. The role of the same in the crime, the nature of search to be done, place where the search has to be done as also specifically interdict the persons carrying out the search from disclosing the material and/or data procured during the course of the said search to a third party. So as to preserve the privacy of the concerned."
When the search warrant is executed, clear rules have to be followed, including having two independent witnesses present, identification of the officers conducting the search, the creation of a panchnama to record what happens during the search, as well as the preparation of a search and seizure report.
Powers to Search Without Warrant in 'Emergent Circumstances'
Like with other property, the police do have powers to search and seize property without warrants in situations where this is necessary.
Section 165 of the CrPC allows the police to search any place (within their jurisdiction) if they believe that anything necessary to investigate their case can be found in that place, but will not be found if there is any undue delay. For instance, if there is a risk that the information could be destroyed or deleted.
Section 102 of the CrPC gives the police the power to seize any property they suspect to be stolen or involved in the commission of an offence. This last aspect is widely interpreted by the police to be able to conduct searches without warrants, without realising it is meant to be an exception.
Indeed, if the police are going to use these powers to conduct a search and seizure without a warrant, then they need to specify their reasons for why the search/seizure was urgently needed in writing, and there must be reasonable grounds for believing the search/seizure was necessary.
This then needs to be sent to a relevant magistrate, along with any property seized at the time.
The Hyderabad authorities were certainly not providing search warrants to those whose phones they were demanding, and it is unlikely that mere suspicion of people they see in the street can be enough to trigger the threshold for search in 'emergent circumstances' without a warrant.
Any person facing this kind of demand from the police to hand over their phones for a search has every right to refuse them and demand to see a warrant, or get an explanation for why there is an urgent need to do so, which can then be challenged in court.
Authorities often seek to get around these requirements by claiming, as they have in Aryan Khan's case, that he voluntarily provided his phone to the NCB officials for a search. However, for the average person, without being aware of their rights, it is hard to say that the process truly is based on consent.
Can Entire Criminal Cases be Built on WhatsApp Messages?
You might have seen headlines from time to time about how WhatsApp messages can't be used as evidence, often quoting the oral observations of a Supreme Court bench headed by Chief Justice of India NV Ramana, saying:
"What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don't attach value to the WhatsApp messages."
As these were oral observations made in the context of a particular set of facts, they don't quite cover the full legal position. To put it more accurately, copies of WhatsApp messages taken from a person's phone have little evidential value on their own.
As the Karnataka High Court explained in the Virender Khanna case, any data gathered through a search of a person's smartphone would have to be proved at trial, just like a regular document or object seized in the course of an investigation.
"The same does not by itself prove that the accused has committed the murder, similarly, the data gathered by itself would not prove the guilt of the accused," the order states.
This is in stark contrast of course to the way in which investigating agencies leak private messages to the media and try to use them to claim the person is guilty – something we saw with Rhea Chakraborty last year, and with Aryan Khan on the very day the Bombay High Court heard his bail plea.
When it comes to electronic messages, the Indian Evidence Act was amended to allow these to be treated as documents. The procedure for electronic copies of documents to be considered evidence is provided in Section 65B of the Evidence Act, which includes a process for certification of such electronic records.
The Supreme Court in July 2020 clarified that copies of electronic records would only be admissible evidence if accompanied by the relevant certificate.
But even if the necessary formalities are followed and the messages are proved, a case based purely on WhatsApp messages would still be on extremely shaky ground without some corroborating evidence.
Mere discussions or even advocacy of a particular view cannot be considered a crime, as the Supreme Court held in the 2015 Shreya Singhal case, and even a purported admission of having committed some sort of act would require some other proof as well.
The failure to find any such corroborating evidence put paid to the NCB's efforts to keep Aachit Kumar in jail. The Delhi Police, while relying heavily on WhatsApp chats in their case regarding the conspiracy behind the February 2020 Delhi riots, has made sure that they have witness statements (often from protected witnesses) which they argue will back up their claims based on the messages.
Without this, any possible case built on just some messages would be purely circumstantial – and while courts can convict based on only circumstantial evidence, they can only do so if there is an incriminating chain of events that all the circumstantial evidence points to, with no other possibility.
While the courts are not supposed to conduct a detailed examination of the evidence before trial, if a case is built on such shaky foundations, this cannot be ignored at the stage of bail.
Judges are supposed to make sure that the police actually have a prima facie case against an accused at this stage, and a failure to have any evidence apart from WhatsApp chats should therefore ensure that bail is not denied, subject to fulfillment of relevant conditions.
In addition, when the police are found to be leaking chats to the media or the public, this can be grounds for action against the investigating officer, the Karnataka High Court held in Virender Khanna.
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