The arrest of Aryan Khan and at least two others by the Narcotics Control Bureau (NCB) violated constitutional provisions, and claims of international trafficking were “absurd and false”, lawyers for the accused told the Bombay high court on Wednesday, poking holes into the agency’s arguments in the high-profile case.
The high court was hearing the bail pleas of actor Shah Rukh Khan’s son Aryan Khan, Arbaaz Merchant and Munmun Dhamecha, who were all arrested by the anti-drugs agency on October 3 after a raid on a cruise ship and charged under stringent sections of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
They have all been in custody for 23 days — through hearings, delays, and bail denials by two other courts. The pace of proceedings, given the nature of allegations, has been criticised by several legal experts. Wednesday was the second day of the bail proceedings in the high court before justice Nitin Sambre, and the hearing will continue on Thursday.
Senior advocate Amit Desai, who was representing Merchant, rubbished the agency’s claims that Aryan’s WhatsApp conversations revealed that he was in contact with a person involved with an international drugs syndicate. “Somebody talking to somebody, they call it international drug trafficking. Absurd and false,” Desai said, arguing that the arrests were illegal.
Senior advocate Mukul Rohatgi, who made the bulk of his submissions for Aryan on Tuesday, argued that the arrest was a direct infringement of constitutional provisions as the arrest memo did not give the “true and correct grounds”. He said that the arrest memo mentioned recovery but didn’t specify from whom it was made.
“The law requires that you have to give true and correct grounds for arrest. Under section 50 of the Criminal Procedure Code, there is an obligation to inform a person of the ground of his arrest,” argued Rohatgi on Wednesday.
Aryan and the others were arrested by NCB’s Mumbai zonal director Sameer Wankhede on October 3 after a raid on a rave party on the cruise ship Cordelia off Mumbai. Wankhede said that 13 grams of cocaine, 5 grams of mephedrone, 21 grams of Charas, 22 pills of MDMA (ecstasy), and ₹1.33 lakh in cash were recovered from the ship. The 23-year-old was charged with alleged consumption and conspiracy under the NDPS Act.
But the case has turned increasingly murky, especially after a key witness alleged that Wankhede was part of a ₹25 crore extortion racket targeting Aryan. The witness, Prabhakar Sail, also alleged that he was forced to sign 9-10 sheets of blank paper. The agency has constituted a vigilance probe to look into the allegations and if confirmed, the charges can upend the high-profile case.
Experts have questioned if protocol was breached after private individuals were seen present during the raid and seemingly assisting NCB officials, despite not being part of any law enforcement agency. They have also asked why only a handful of the 1,300 people present on the ship were charged under the NDPS Act, questions that got louder after two others arrested from the cruise got bail on Tuesday.
Opposition parties have also alleged that the raid was conducted at the behest of local Bharatiya Janata Party leaders, who were also present during the event. The NCB and BJP have denied these allegations.
Bail pleas of Aryan, Merchant and Dhamecha were denied by the sessions court on October 20. All three then approached the high court, which started hearing their petitions on Tuesday.
On Wednesday, Desai submitted that Aryan, Merchant and Dhamecha were arrested primarily for alleged possession and consumption. There was no conspiracy and therefore the first remand did not mention any charge of conspiracy.
He pointed out that unlike others, whose statements mention the sale and purchase of contraband material, Merchant’s statement only mentioned consumption, but the agency slapped the charge of conspiracy and abetment under section 29 of the NDPS Act. It is only on this ground that the lower court rejected their bail plea, he argued.
Desai also pointed out to the single judge bench of justice Nitin Sambre that the arrests themselves were illegal. In this regard, the senior advocate submitted that the agency failed to first issue notices to the accused persons under section 41A of the Criminal Procedure Code to secure their cooperation in the investigation.
He pointed out that in case of minor offences, the settled legal position was that arrest was permitted only in exceptional cases. “Bail is the rule and jail is exception, now arrest is the rule and bail is exception,” Desai said.
“Since NCB has not given notices, there is violation of 41A and on that ground alone the accused should be released on bail,” Desai insisted.
He said that the special NDPS court granted bail to two people arrested by the NCB for drugs consumption. He claimed the NCB’s reply in the case of the two – Avin Sahu and Manish Rajgaria – was the same.
He also pointed out that when mobile phones of the arrested people were seized, no panchnama was recorded and submitted that NCB officials claimed that the accused voluntarily surrendered their mobile handsets. “But, in case of seizure of a personal device, there has to be a memorandum for ascertainment of its veracity,” he submitted.
Desai also objected to the agency’s reliance on the chats and other past communications. “Past events are connected for securing custody,” he said.
Advocate Ali Kashif Khan Deshmukh, representing Dhamecha, said that she was invited on the holiday cruise by a crew member and was promised payment. “Immediately after she walked in on the vessel, the raid happened and there were already two people present in the room (booked for her),” Deshmukh submitted.
Pointing out that it was NCB’s own case that 5 grams of charas was found lying in the room and that her person did not yield anything, the lawyer said the seizure memorandum was silent about the exact place where the contraband material was found. “They say it was found on the cruise, but nothing is mentioned as to who brought it in, etc,” Deshmukh said.
Deshmukh said Dhamecha hailed from a small town and had been on the cruise for work. He insisted that there were over 1,300 others on board the vessel and if she was apprehended merely on the basis of suspicion, then all others should have been arrested.
EXPERT QUOTE CRITICISING THE DELAYS
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