The Supreme Court has imposed a cost of ₹25,000 on the Central government for failing to file within the stipulated time period a counter affidavit in connection with the petition from a group of academicians asking for the framing of guidelines on the search and seizure of electronic devices by investigating agencies.
In August, expressing dissatisfaction over its affidavit, the court had directed that another one be furnished within six weeks. On Friday, the court gave a further two week time period to the government for submitting the counter affidavit.
The development came against the backdrop of the recent seizures made by the Delhi Police during the searches on the editors of The Wire and subsequent demand of the news portal for the “hash value” of the seized phones, computers and iPads, and for the cloned copies of the devices seized to be kept at a neutral place.
Another petition filed recently by the Foundation for Media Professionals in the Supreme Court has been tagged to the first one. It alleged that the existing rules did not regulate the police’s power to search or seize digital devices and this purportedly enabled dubious practices.
While the two petitions are pending in the Supreme Court, experts are of the view that there should be more safeguards in the procedure for the seizure of digital devices.
Explaining the existing procedure, Navneet Rajan Wasan, former Director-General of the Bureau of Police Research and Development, who also headed the National Investigation Agency, said the standalone digital devices were seized in the presence of two independent witnesses and sealed following the prescribed drill so that they were not damaged during transportation. They are then transmitted to the Forensic Science Laboratory, with a request for making a mirror image of the device to be used for the purpose of investigation and for analysis.
The mirror image is created using a standard copying tool and by attaching a “write-protector” in order to ensure data integrity. Before the start of the copying process, “hash value” is generated for proving authenticity of data contained in the device by the FSL. The same may be produced before the court to allay any allegation of tampering with the data, after it is seized.
“Every caution should be taken to ensure chain of custody. Unless these laid down procedures are followed in seizing and sealing of evidence, and transmission to the FSL, there is a scope of tampering with the data,” Mr. Wasan said, adding that the U.S. and the European Union have detailed standard operating procedures (SOP) for search/seizure of digital evidence.
A Delhi Police officer told The Hindu: “At the time of seizure of any electronic device, the hash value of the digital document is not provided to the accused and is only provided later to the court for verifying the evidence’s authenticity.” Requesting anonymity, he said: “Electronic evidence is admissible before court and the police has the right to procure it as part of the investigation...the Investigating Officer (IO) preserves the evidence and extracts only the relevant bit for further use.”
“The IO prepares a certificate under 65B of the Evidence Act where he states that all the material has been preserved,” the officer said, adding that the “hash value” is submitted before the court as part of the chargesheet. “Any private material is either stored for future investigation purposes or destroyed within six months as per the protocol,” he added.
Senior advocate Geeta Luthra said the evidentiary value of the device loses its sanctity if it is not sealed forthwith and it is imperative that the primary evidence is not destroyed or tampered with. There should be a forensic report to establish whether there has been any tampering, editing, destruction of the voice or video recording. She suggested that although it is difficult to get a cloned copy of the device immediately, since there is apprehension in the mind of the person (from whom the device is seized) that there is a likelihood of tampering, steps to give a cloned copy forthwith should be taken at the time of seizure, rather than at the stage of filing of the chargesheet, as is the mandate of the law.
“Digital evidence is one of the surest and best evidence in establishing the guilt of an accused, but it is also that much easier to destroy, tamper or alter the same and it is imperative that there should be no likelihood or danger of the same being tampered with if we are to ensure that an innocent person is not convicted wrongly,” Ms. Luthra said.