Nearly 25 days since he was detained by the Narcotics Control Bureau (NCB) in the cruise ship drug bust case, the Bombay High Court Thursday granted bail to actor Shahrukh Khan’s son Aryan Khan. The court also granted bail to co-accused Arbaaz Merchant and Munmun Dhamecha in their pleas against rejection of their bail applications by the special NDPS court.
A single-judge bench of Justice Nitin W Sambre, who has been hearing the bail pleas since Tuesday, held, “All three applications allowed,” adding, that the detailed reasoned order will be made available on Friday.
Aryan and two others had been in custody since October 2, when they were detained ahead of an alleged rave party on a cruise ship. Aryan and two others had approached the High Court after the special NDPS court rejected their bail pleas last Wednesday. The NDPS court had ruled that although no drugs were found on Aryan, he was aware of the fact that his friend Arbaaz Merchant was carrying them and this amounted to “conscious possession”.
In a written submission to the High Court Tuesday, Aryan distanced himself from the allegations made by Maharashtra minister Nawab Malik against NCB Mumbai Zonal Director Sameer Wankhede, including regarding witnesses in the case. The defence said Aryan had nothing to do with the “unsavoury” political controversy.
The central agency in its affidavit in reply to the bail pleas said Aryan Khan is an influential person and is likely to tamper with evidence or flee justice if released on bail. The agency said that the evidence shows a part of illicit drug trafficking and Aryan were in touch with persons abroad who were a part of an international drug network
NCB said material collected during investigation primarily revealed that Aryan had played a role with respect to illicit procurement and distribution of contraband. The affidavit said he procured contraband from Arbaaz Merchant and had played a role in so far as illicit procurement and distribution of contraband is concerned.
Opposing Aryan’s bail plea during the hearing, Additional Solicitor General Anil Singh for NCB said, “Applicant Aryan Khan is a regular consumer of drugs for the last two years.”
He also pointed out that Aryan was found in “conscious possession” of contraband. “There is a case that a person might not have consumed the drug, but if he’s in possession of it, he can be booked under NDPS Act,” Singh argued.
Referring to the seizure panchama, Singh added, “Aryan Khan had said in the panchama that the contraband found on Arbaaz was meant for smoking during the cruise journey. They say they are going inside to have a blast. Bail is not a rule in the NDPS case. Assuming there is no recovery, the person can be still held liable for offence,” ASG Singh said.
Singh added that applicants were made aware of inclusion of Section 28 and 29 (conspiracy) being invoked against them and were duly informed as per CrPC.
Singh added that the applicants have not challenged the remand order and as per past SC judgement, it is deemed to be rectified irrespective of any previous irregularity. “It is not even challenged in the present bail application. They can’t come back and say arrest is illegal,” Singh said.
He added, “A person might not have consumed the drug but if he’s in possession of it, he can be booked under NDPS Act, even for conscious possession. Arbaaz is Aryan’s childhood friend. He had gone to the house of Aryan. Both travelled from Aryan’s house in the car till the international cruise terminal where they were apprehended. They were to stay in the same room had they boarded the cruise. Accused Aryan was found in conscious possession of contraband.”
NCB also said WhatsApp chats showed that the applicant made an attempt to deal with commercial quantities. “Even if he (Aryan) may not be found in physical possession but accused Arbaaz was. Total eight persons out of 11 based on a secret note were apprehended. When we apprehended them, multiple drugs were found from them.”
After the judge inquired with Singh as to whether NCB was arguing that the “cumulative effect” of drugs found on all accused be used to decide the commercial quantity, Singh responded in affirmative.
“It was a commercial quantity in cumulative. When we say conspiracy, we calculate drugs found on all persons. It needs to be investigated,” Singh said and added that the arrest was made on October 2. “At least on Gandhi Jayanti they should have left these things,” he said.
On Wednesday, Senior Advocate Amit Desai, representing co-accused and Aryan’s friend Arbaaz Merchant, argued that the NCB’s arrests in the case were “illegal” because the agency failed to follow procedure under Section 41A of the Criminal Procedure Code (CrPC), which mandates the investigating officer to issue notice of appearance prior to arrest. Desai also contended that WhatsApp chats were not admissible in court, according to previous High Court judgments and provisions of the Indian Evidence Act.
Advocate Ali Kaashif Khan Deshmukh, representing Dhamecha, argued that there was no material against her and that she had no connection with the other accused.
On Tuesday, senior advocate Mukul Rohatgi and advocate Satish Maneshinde for Aryan told the bench that the NCB had made no recovery from the 23-year-old, nor conducted a medical examination to show consumption of any narcotic. Aryan argued that WhatsApp chats between him and a friend over online poker were being “misinterpreted” by the NCB as about drugs.
Rohatgi argued that even in a case of “conscious possession”, there is provision of one-year imprisonment. He submitted a report by The Indian Express on a recommendation by the Social Justice Ministry that drug users be sent for rehabilitation rather than imprisoned and said the same was important to understand the “legislative intent”.
“These are young boys. Even if you admit ‘conscious possession’ of 6 grams, the idea is that the law provides for young boys with no antecedents (to be treated) as victims, rather than (as) hardened criminals. They are entitled (to) rehab and there is immunity (from) prosecution in rehab. It is a fit case for bail,” Rohatgi said
Rohatgi in his rejoinder Thursday submitted that the NCB failed to prove the offence of conspiracy. “There were 1,300 people on the cruise. I did not know anybody else except Arbaaz and Aachit Kumar. Conspiracy is meeting of the minds. It cannot be based on coincidence. You (NCB) failed to prove meeting of minds with these eight people and therefore called them independently. There is absolutely no material for the purpose of conspiracy. Two of them have got bail. Although my client’s case is not on parity. Argument of conspiracy to bring in 29 is by virtue of it is not coincidence. It is true that it is difficult to prove but facts should have shown that they were acting in tandem, which is not the case,” Rohatgi said on behalf of Aryan.
While Rohatgi was about to conclude his submissions, the judge said that he has allowed the three bail applications.