Navigating the Admissibility and Authentication of Pendrive Electronic Evidence Under Section 65B Requirements

In the modern courtroom, digital data often forms the backbone of critical evidence. When a pendrive is seized or submitted to support a legal argument, its journey from a storage device to admissible courtroom evidence is heavily regulated. A common hurdle arises when a party attempts to introduce a pendrive as evidence without disclosing its precise source or the device used to record the data. Proving the authenticity of such an electronic record is not a matter of simply playing a video or opening a document; it requires strict adherence to statutory mandates.

If you are dealing with a situation where a pendrive is in the possession of the accused or another party, but its provenance is obscured, the court requires a systematic approach to prove the contents. The governing framework for this process is Section 65B of the Indian Evidence Act, 1872.

The Mandatory Requirement of Section 65B(4)

The primary obstacle to admitting electronic evidence stored on a pendrive is the requirement for a specific certificate. Section 65B(4) of the Indian Evidence Act provides that in any proceedings, a certificate must be produced to make the electronic record admissible. This certificate serves as a foundational link between the digital content and the device that produced it.

The certificate must perform three critical functions:1. Identify the electronic record containing the statement and describe the manner in which it was produced.2. Provide particulars of any device involved in the production of that record to demonstrate that it was produced by a computer.3. Deal with matters related to the conditions of the electronic device's operation.

As the court has noted, the certificate must purport to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities 2020 4 Supreme 405. Without this certification, the electronic record is typically deemed inadmissible, preventing the contents from being proven before the court.

Why Mere Possession Does Not Equal Authenticity

A common misconception is that simply submitting a pendrive to the court or an investigating officer is sufficient. However, if the person submitting the device merely possessed it but did not operate the device that created the files, their certification is legally insufficient.

For instance, if an individual obtains a pendrive from a third party and hands it over to the police, that individual cannot effectively certify the contents because they lack personal knowledge of how the data was produced. The Supreme Court and other judicial forums have clarified that a person who merely handed over a pendrive without being involved in the process of production cannot be considered to occupy a responsible official position in relation to that device 2023 0 Supreme(Raj) 213. In such scenarios, the certificate supplied by that person is considered a valueless piece of evidence because it fails to attest to the integrity or authenticity of the digital data itself 2023 0 Supreme(Raj) 213.

The Necessity of Establishing Device Authenticity

The legal system treats pendrives and similar storage devices as holding secondary evidence. Because digital files can be easily manipulated, courts demand proof that the data was recorded in the normal course of a regular activity of computer operation.

The Supreme Court has explicitly held that any reproduction of a computer record, whether it is labeled primary or secondary evidence, cannot be admitted in the form of a pendrive or CD unless the authenticity of the device is established 2018 0 Supreme(P&H) 2623. This requires the producing party to demonstrate the chain of custody and the technical conditions under which the data was fed into the storage device. Attempting to bypass this requirement often leads to the evidence being disregarded entirely, as seen in cases where the failure to follow the prescribed method renders the pendrive evidence inadmissible 2025 Supreme(Online)(ITAT) 10003.

Balancing Rights: Cloned Copies and Privacy

When the prosecution relies on a pendrive as evidence, the accused often has a right to access that information to build an effective defense. However, this creates a tension between the accused’s right to evidence and the potential privacy concerns of victims or witnesses.

Courts generally hold that the contents of a memory card or pendrive are treated as a document. In standard circumstances, the accused should be provided with a cloned copy of the pendrive to enable them to prepare their case 2023 0 Supreme(Mad) 1800. However, if the material contains sensitive or private information, the court may intervene. In these instances, the court may order that the accused and their legal representatives be given access to inspect the contents in a controlled environment—often in the presence of court officials or experts—rather than providing a direct copy of the files 2025 Supreme(Online)(Bom) 6468.

Practical Steps When the Source is Unknown

If the party seeking to rely on the pendrive does not know the source or cannot readily provide the Section 65B(4) certificate, they may find themselves at an impasse. Generally, the following steps are considered when trying to establish the admissibility of such evidence:

• Identify the Source: The most effective approach is to identify the original device (such as the computer or camera) that generated the files stored on the pendrive.
• Request the Certificate: Once the source is identified, the party must obtain a certificate from the person who controlled that device at the time of production.
• Apply to the Court: If the person in control of the device refuses to cooperate, the party can apply to the court. The court has the authority to issue directions for the production of the required evidence or to compel the provision of the certificate under relevant provisions of the Code of Criminal Procedure or the Evidence Act.

It is vital to recognize that attempting to admit evidence without addressing these procedural gaps typically results in the court rejecting the data. As case law consistently emphasizes, the certificate acts as a safeguard against tampering, and its absence is a fundamental defect that cannot be easily cured.

Conclusion

Proving the contents of a pendrive requires more than just presenting the physical object in court. It necessitates a rigorous adherence to the evidentiary standards set by Section 65B of the Indian Evidence Act. Because digital data is inherently volatile, the law places the burden on the party submitting the evidence to authenticate the device of origin and the integrity of the data through a qualified certificate. While every legal situation is unique and subject to specific court interpretations, failing to secure the proper certification under Section 65B(4) remains a primary reason why electronic evidence is excluded. Parties looking to use such evidence should prioritize establishing the technical provenance of the data early in the process.