Without Authentication or Evidence of Publication, No Offence Under Section 67 IT Act Is Made Out: J&K High Court

Seizure Alone Doesn’t Prove Digital Crime — In a significant ruling clarifying the evidentiary burden under cyber laws, the High Court of Jammu & Kashmir and Ladakh, held that “mere seizure of electronic devices like mobile phones or memory cards is not sufficient to attract the offence under Section 67 of the Information Technology Act, 2000,” unless there is proof of actual transmission or publication of obscene content in electronic form.

Justice Sanjay Dhar, presiding over the matter in Criminal Appeal (AS) No. 35 of 2024 (UT of J&K v. Bilal Ahmad Wani & Others), dismissed the Union Territory’s appeal against the acquittal of the accused in a gang rape and cyber offence case, citing serious evidentiary lapses on the part of the prosecution.

“Authentication of Digital Material Is Not a Mere Formality – It's the Foundation of Prosecution Under Section 67”

The Court unequivocally held that: “Without authentication of videos, audios or photographs, the forensic report cannot be relied upon as proof of offence under Section 67 of the IT Act.”

The judgment came in the context of a criminal case where the prosecution alleged that the accused had videographed an alleged sexual assault and circulated the footage through WhatsApp and Facebook.

However, despite the seizure of mobile phones and memory cards during the investigation, the prosecution failed to establish one critical legal requirement: transmission or publication of obscene material in electronic form, as required under Section 67 of the IT Act.

“Seized Phone Isn’t Enough – Prosecution Must Show It Was Used for Obscene Publication”

Justice Dhar was direct in rejecting the prosecution's approach: “The only evidence that has been collected to prove this charge is the mobile phone and memory card. But the record shows no attempt to prove that these devices were actually used for publishing or transmitting the alleged content.”

The Court was particularly critical of the fact that although a Forensic Science Laboratory (FSL) report was submitted, the expert who prepared the report was not cited as a prosecution witness.

Even more damning was the content of the FSL report itself. The Court noted:

“The FSL report clearly states that video/audio/photo authentication tools were not available in the laboratory. Without authentication, the report has no probative value in law.”

“Prosecution Did Not Show Any Transmission on WhatsApp or Facebook”

The Court observed that no evidence was collected to establish actual uploading or sharing of the alleged obscene content, despite the FIR itself claiming that videos were circulated via social media.

Justice Dhar observed: “The investigating agency did not collect any material to show that the seized videos or photographs were actually published or transmitted through WhatsApp or Facebook, as alleged. In absence of such material, the charge under Section 67 collapses.”

“Trial Court Rightly Declined to Prolong Futile Prosecution Under Section 67”

While the Union Territory argued that the trial court should have allowed the prosecution to present more witnesses to prove the cybercrime charge, the High Court found no merit in that submission.

Justice Dhar held: “Even if further witnesses were examined, it would not cure the fundamental defect — absence of evidence regarding publication or transmission.”

He added: “There is no presumption in law that mere possession of a device containing an obscene video equals publication. The law demands more.”

Section 67 IT Act Requires More Than Just Seized Devices – It Requires Proof of Electronic Transmission

The judgment underscores a vital principle in digital evidence law: possession is not publication. The investigation and prosecution under Section 67 of the IT Act must be backed by technical evidence showing publication or transmission, and the forensic analysis must be authenticated and backed by examining expert witnesses.

The High Court has drawn a clear line — digital evidence must meet strict standards of proof, and where such standards are not met, continuing trial proceedings serves no purpose.

Date of Decision: 26 December 2025