A court may set aside an order when it fails to consider critical evidence relevant to the admissibility of electronic records under the Evidence Act.

JUDGMENT

The above Original Petition (Crl.) is filed seeking the following reliefs:

“1) To issue an order or direction quashing the Exhibit P6 proceedings dated 15.02.2024 in SC 138/2022 of the Hon'ble Special Court (NDPS Cases) Vatakara to the extent of directing the petitioner to produce 65B Certificate and appear for examination on 17.2.2024

2) Grant such other order or direction as this Hon'ble Court deems fit to grant in the particular facts and circumstances of this case.

3) Dispense with filing of the translation of vernacular documents.

And

4) Award and Costs.”[SIC]

2. The 1^st petitioner is a company registered under the Companies Act, 1956 and the 2^nd petitioner is presently working as Senior correspondent of Manorama News television channel owned by M/s MM TV Limited. The accused Nos.1 to 3 in Sessions Case No.138/2022 pending before the Special Court (NDPS Cases) Vatakara, filed a petition to summon the 2nd petitioner to produce the video footage of the petitioner’s channel which is uploaded in YouTube. According to the accused, the arrest of the accused can be disproved if such a footage is received. The accused also seek a permission to get Section 65B Evidence Act certificate also. The 2nd petitioner appeared before the trial court and filed Ext.P4 afÏdavit stating that he is not in a position to produce the certificate under of the . The CD is already produced. But as per Ext.P6 proceedings, without considering the same, the learned Sessions Judge directed to produce the certificate under of the is the grievance.

Aggrieved by the same, this Original Petition is filed.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The counsel for the petitioner submitted that Ext.P6 order is passed without considering Ext.P4 afÏdavit. The Public Prosecutor submitted that simply because this original petition is pending before this Court, the learned Judge is not in a position to pronounce the judgment. Therefore, Public Prosecutor submitted that appropriate orders may be passed in this original petition.

5. This Court considered the contentions of the petitioner and the Public Prosecutor. This Court also perused Ext.P4 afÏdavit. It will be better to extract paragraph No.5 of the of the aforesaid afÏdavit:

“5. We are producing the video downloaded from the YouTube channel wherein the server is controlled by YouTube. The copyright over the video always remains with the owner of the channel or page. Section 65B certificate can be issued only if there is compliance under section 65B (2) (a) to (d). In the instant case, YouTube which is the intermediary platform which is the custodian of the server wherein the audio/video visual is stored.”

6. A perusal of the same would show that the 2^nd petitioner deposed before the court that the copyright over the video always remains with the owner of the channel or page and Section 65B Evidence Act certificate can be issued only if there is compliance under (2)(a) to (d). It is also submitted that, in the instant case, YouTube which is the intermediary platform which is the custodian of the server wherein the audio/video visual is stored. Therefore, certificate cannot be issued. This Court perused Ext.P6 proceedings also. A perusal of the same would not show that the learned Sessions Judge has considered this aspect. I think, there is force in the argument of the petitioner. Therefore, Ext.P6 proceedings of the Special Judge can be set aside and there can be a direction to the Special Judge to reconsider the matter in the light of Ext.P4 afÏdavit, after giving an opportunity of hearing to both sides.

Therefore, this Original Petition(Crl.) is disposed of the following directions:

1