Delhi High Court cites privacy order, asks if text messages can be treated as proof

NEW DELHI: Citing the recent Supreme Court ruling on privacy, the Delhi HC has questioned if private messages can be relied upon as evidence in a criminal investigation.

In a recent hearing, a bench of Justices Siddharth Mridul and Najmi Waziri asked if messages sent on BlackBerry Messenger (BBM) can be treated as evidence following the SC ruling declaring privacy as a fundamental right.

The HC said the government and the Enforcement Directorate will have to address this point while hearing a plea by meat exporter and businessman Moin Qureshi challenging his recent arrest by ED in a money laundering case. He has filed a writ arguing that the ED arrested him without citing grounds of arrest, violating the Constitution.

“What kind of reverse investigation is this? No grounds of arrest have been furnished,” Qureshi’s lawyer R K Handoo argued, asking why his client was being targeted.

The HC said that ED may have to spell out its stand on whether reliance on private messages exchanged between the accused in a criminal case can fall under “reasonable restriction” in the context of Article 21 of the Constitution.

Examine if private msgs admissible as evidence: HC
While issuing notice to the Centre and ED, the Delhi HC noted, “We would like to know, can we look into these BBM messages after the SC’s nine-bench privacy judgment, whether these private messages would be admissible as evidence. Privacy has been held as integral part of Article 21 (life and liberty) of the Constitution. Please examine, as we would like to know it.”

As per ED, Qureshi was arrested on the basis of BBM messages exchanged between him, former CBI chief A P Singh and several persons accused in other criminal cases.

The court listed the matter for September 13, pointing out that “in view of the submissions of the counsel for the petitioner that he has not been informed of grounds of his detention in terms of constitutional imperative under Article 22, it is necessary to issue notice,” it said.

The bench reiterated the settled law that a person cannot be taken into custody without telling him/her the grounds. “You cannot deny liberty to someone without grounds,” the bench observed, asking ED to “show us the files” as “courts have to uphold constitutional mandate.

There are rights which you cannot take away. That is why we want you to go through the privacy judgment of SC.”

The records collected by ED from the I-T department in the form of BBM messages allegedly “revealed that Qureshi had taken huge amount of money from different persons...”, the agency has claimed.