Prosecution’s Case Merely Based On Whatsapp Chats Appended: Bombay High Court Discharges Actor’s Son In NDPS Case
The Bombay High Court allowed the Revision Application filed under Section 397 read with Section 401 of the CrPC against the decision of the Special Court.
Justice Milind Jadhav, Bombay High Court
The Bombay High Court discharged Actor Dalip Tahil’s son in an NDPS case, stating that the prosecution's case was based merely on hearsay, primarily due to WhatsApp conversation chats appended to the application that did not mention any contraband or the alleged contraband in any of the said chats.
The Court allowed the Revision Application filed under Section 397 read with Section 401 of the CrPC against the decision of the Special Court, rejecting the Discharge Application and a subsequent Clarification Application preferred by the Applicant, Dhruv Dalip Tahil.
A Single Bench of Justice Milind N Jadhav held, “Prosecution is primarily aware of the fact that if it proceeds against a singular act of procurement by Applicant considering the said procurement being below small quantity, Applicant may get benefit of doubt under the NDPS Act. That apart, Applicant is not apprehended with any contraband. It appears that prosecution has combined procurements by Applicant over a period of 18 months of 1 or 2 grams at a time for invoking the provisions of NDPS Act against Applicant on basis of confessional statement of Accused No.1. However, while doing so, the tenet and principle of law envisaged under Section 218 of Cr.P.C. read with Section 219 to 223 which are exceptions thereto are not complied with for invocation of prosecution case against Applicant.”
Advocate Ayaz Khan appeared for the Applicant, while APP Hitendra J. Dedhia represented the Respondent.
Brief Facts
According to the Prosecution's case, the co-accused was intercepted with 35 grams of alleged contraband Mephedrone (MD). Upon inquiry, he disclosed to prosecution officers that he had supplied alleged contraband to various persons, including the Applicant. The prosecution recovered various WhatsApp messages from the the co-accused’s mobile phone, exchanged between hims and the Applicant, pertaining to procurement of alleged contraband.
Court’s Reasoning
The High Court noted, “Case of prosecution to assimilate procurement of the alleged contraband on several multiple occasions over a period of more than 18 months and alleged the same to be charged in one singular crime is impermissible in law in view of applicability of the provisions of Section 218 of Cr.P.C. The only exception being Section 219 but that also needs to be charged with respect to three specific acts of procurement over a period of 12 months which is not the case here.”
The Bench referred to the Supreme Court’s decision in Suresh Budharmal Kalani v. State of Maharashtra (1998), wherein it was held that “mere confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame charge against him. The alleged material in the form of WhatsApp chats when read prima facie in my opinion cannot translate into admissible evidence of the stage of trial against the Applicant.”
“That apart case of prosecution qua Applicant is merely based on hearsay primarily because of WhatsApp conversation chats appended to the Application which do not mention name of any contraband or the alleged contraband in any of the said chats. Therefore prima facie no live link or nexus whatsoever is established by prosecution to proceed against Applicant. Neither there is any live link established by prosecution with respect to monetary transactions limited to procurement of alleged contraband referred to and relied upon from the WhatsApp chats. Provisions of Section 27-A of NDPS Act pertain to financing either directly or indirectly for trafficking of alleged contraband. None of the ingredients of Section 27-A are prima facie present in the present case qua Applicant. Neither any prima facie incriminating material is shown to Court to believe the case of prosecution,” the Court explained.
The Bench held, “I am of the opinion that this is a fit case for exercising the powers conferred upon this Court under Sections 397 r/w 401 of Cr.P.C. to set aside the impugned Judgement as it clearly suffers from an error of application of law. Invocation of charge against Applicant in the present crime is therefore not sustainable. Hence the Application succeeds.”
Consequently, the Court ordered, “Applicant is discharged under Section 8(c) r/w 22(b), 27A and 29 of NDPS Act in NDPS Special Case No.711 of 2021...Criminal Revision Application No.183 of 2024 is allowed and disposed in the above terms.”
Accordingly, the High Court allowed the Application.
Cause Title: Dhruv Dalip Tahil v. State of Maharashtra (Neutral Citation: 2025:BHC-AS:22574)
Appearance:
Applicant: Advocates Ayaz Khan, Dilip Mishra, Zehra Charania, Serena Jethmalani and Mallika Sharma
Respondent: APP Hitendra J. Dedhia
