The wait for bail in the Mumbai cruise drugs case finally ended for Aryan Khan, the son of Bollywood superstar Shah Rukh Khan, today (Thursday, 28 October) with the Bombay High Court ruling in favour of Aryan and his friends Arbaaz Merchant and Munmun Dhamecha.
The court will pronounce detailed order with reasons tomorrow.
The 23-year-old Aryan was arrested on 3 October after a drugs raid on a cruise ship party by Narcotics Control Bureau officers in disguise. At present, Aryan is lodged at the Arthur Road Jail along with another accused Arbaaz Merchant. Whereas, Munmun Dhamecha is at Byculla women’s prison.
Former attorney-general Mukul Rohatgi, representing Aryan, said he, Merchant and Dhamecha will be released either tomorrow or by Saturday. “The court has heard the case for two or three days… details of the order will be out soon,” Rohatgi added.
Also read: Understanding Section 65 of Indian Evidence Act and if Whatsapp chats are evidence in Aryan Khan case
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‘Aryan not a first-time consumer’
Opposing Aryan’s bail plea on Thursday, NCB lawyer ASG Anil Singh told the Bombay High Court: “Applicant Aryan Khan is not a first-time consumer. He is regular consumer since last two years as per records. There is evidence to prove that he has been providing drugs.”
Singh further added, “The records which are relied upon – one is secret note on information of drugs regarding 11-12 persons going on cruise. Out of 11, eight were apprehended. Voluntary panchanama, voluntary statement, mobile phone and WhatsApp chats on digital device, these are records even produced before special court. Aachit (accused no 17) is a drug peddler and he was apprehended later and not on cruise. My contention is that applicant having dealt with or even if attempts to deal with, then section 28 squarely applies and if he’s is a part of conspiracy, then section 29 applies. So, the person who is not actually found in possession of drug but there was an attempt to deal with commercial quantity, is a part of conspiracy which relates commercial quantity.”
“There is a case that person might not have consumed the drug but if he’s in possession of it can be booked under NDPS Act. Even conscious possession. Arbaaz is his childhood friend. He had gone to the house of Aryan. Both travelled from house of Aryan in the car till the international cruise terminal where they were intercepted. They were to stay in same room had they boarded the cruise. Accused Aryan was found in conscious possession of contraband.”
As per Live Law, Singh, referring to the contention of Aryan that his friend Arbaaz Merchant was found in possession of drugs and not him, said, “My response is, though it was physically found with Arbaaz, Aryan had knowledge and he was aware of it. T̉herefore there was a conscious possession. Even if a mere attempt is made, charges can be applicable.”
‘Bail not rule in NDPS cases, custody is’
Singh further said first remand was made four hours after the arrest and that sections 28 and 29 were added to the remand application then. Referring to the seizure panchama, Singh added, “Aryan had said in panchnama that contraband found on Arbaaz was meant for smoking during cruise journey. They say they are going inside to have a blast. Bail is not a rule in NDPS case. The question of admissibility of statement under Section 67 or CrPC will apply only at the time of trial and not at the stage of bail hearing.”
Singh said the WhatsApp chat implied that applicant Aryan Khan attempted to deal with commercial quantity. “Even if he may not be found in physical possession, but accused Arbaaz was. Arbaaz is Aryan’s childhood friend. He had visited Aryan’s house and they went to international cruise terminal together where they were apprehended. Total eight persons, out of 11, were apprehended based on the secret note. When we apprehended them, multiple drugs were found from them.”
‘No arrest for conspiracy’
On Wednesday, Amit Desai, who is also representing Aryan, told the single-judge bench of Justice Nitin W Sambre, there has been no arrest for conspiracy till date, and that conspiracy is a separate offence. Desai referred to the chart which Rohatgi had submitted on Tuesday to highlight, “There are three unconnected persons coming for the same purpose that is not conspiracy”.
Desai said even if there is concurrence in the intention of the accused, what the prosecution must prove is that there was positive intention to commit an act with common intention. “Based on chats there have been speculations of drug trafficking, but it is absurd. The device is not with us, and there is no panchnama,” he said.
While reading a panchnama filed in the case, Desai said that is a case of personal consumption. He emphasizes that the panchnama reads “except personal consumption” and that there was no allegation of use in arrest memo.
He then went on to argue that if intention to consume to a factor then that it should not apply as no medical test was done to prove it. On the same note, Desai said Section 20(b) is a theory of possession and joint possession, pointing out that consumption is a verb, and that has not happened.
Desai said WhatsApp chats dated three to one months ago were being cited and said, “So far as WhatsApp chats are concerned, it is abundantly clear that there are no WhatsApp chats to support the conspiracy theory.”
He also mentioned that without a 65B certificate (electronic evidence must be favoured), chats are not admissible anymore. In this regard, he also mentioned that there was no seizure memo in relation to the ‘seized’ phones refuting the ‘voluntary handover’.
Rohatgi argued that if there is constitutional infirmity then it cannot be cured by remand. What is important is Article 22 of the Constitution. That article flows from Article 21 (Right to life).
“What Your Lordships have been made to look at are statements which are violative of Article 14 (Equality), 19 (Free speech) and 21 (Right to life).” he added.
Tuesday’s hearing, saw the lawyers of Aryan and co-accused Arbaaz Merchant and Munmun Dhamecha present their case. Rohatgi, representing Aryan, argued that he was a “young man” who should be sent to rehab rather than jail.
Rohatgi told the court on Tuesday that his client was invited to the cruise as a special guest. He told the court that there was “no case of possession of drugs” against Aryan Khan and that he was arrested wrongly. He also said “it was fit case for bail”.
Rohatgi said the law provides a maximum of one year of imprisonment for small quantities of drugs. “Law provides that for small quantities, the maximum punishment is one year of imprisonment. For consumption, there is rehabilitation as per law,” Rohatgi argued on behalf of Aryan Khan.
“Aryan Khan was invited by one Pratik Gaba. He was like an organiser. He invited accused 1 Aryan and accused 2 Arbaz Merchant. Both were invited by the same person. They both landed up together at the cruise terminal,” Rohtagi said.
“It appears that NCB had some prior information that people on this cruise were having drugs so they were present in a certain strength. My client, Arbaz and many others were apprehended. A search was conducted and nothing was recovered from the accused 1 (Aryan Khan). No medical at any point was conducted to ascertain if he has taken any drug,” he added.
Rohatgi said six grams of charas was recovered from accused number 2 (Arbaz Merchant) and Aryan had no relation with him except for arriving with him there. “There was no recovery. There was no proof of consumption,” he said.
“Many others were found with some amount of drugs so they allege that there was a general conspiracy. They are not charging me with consumption or possession but with conspiracy and conspiracy not with Arbaz but others,” the former AG argued on behalf of Aryan Khan in the courtroom arguing before Justice Nitin Sambre.Internet Explorer Channel Network