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Friday, December 03, 2021

Aryan Khan bail order out, says ‘no positive evidence to show conspiracy between accused’

On the NCB's claim of WhatsApp chats allegedly recovered from Aryan's phone, the Bombay HC said that "nothing objectionable" was found to prove conspiracy.

Written by Sadaf Modak | Mumbai |
Updated: November 21, 2021 7:28:07 am
Aryan Khan outside NCB office in Mumbai. (Express photo by Ganesh Shirsekar/File)

In its detailed order granting bail to Aryan Khan, son of Bollywood actor Shah Rukh Khan; Arbaaz Merchant; and model Munmun Dhamecha, the Bombay High Court has said that there was “hardly any positive evidence” to show conspiracy between the accused as alleged by the Narcotics Control Bureau (NCB).

The court also said that “nothing objectionable” was noticed in the WhatsApp chats allegedly recovered from Aryan’s phone to suggest that there was a conspiracy.

The single bench of Justice Nitin Sambre had granted bail to the three on October 28. They were arrested on October 2 after a raid on a cruise by the NCB. The 14-page order was made available Saturday.

“There is hardly any positive evidence on record to convince this Court that all the accused persons with common intention agreed to commit unlawful act. Rather the investigation carried out till this date suggests that Applicant/Accused nos. 1 & 2 (Aryan and Merchant respectively) were travelling independent of Applicant/Accused no. 3 (Dhamecha) and there was no meeting of minds on the aforesaid issue,” the court said.

It added that there has to be positive evidence about an agreement to do an unlawful act or to do lawful act by unlawful means and such agreement must precede with meeting of minds.

While no drugs were recovered from Aryan, and allegedly small quantities of drugs (charas) were recovered from Merchant and Dhamecha, the NCB had said that all the accused, including others from whom commercial quantity of drugs were found, were “linked in conspiracy” to commit offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act and hence drug recovery in the case should be considered cumulatively.

The court said that there is no material to infer that the three hatched a conspiracy to commit offence or that there was any meeting of minds with other accused arrested in the case.

Munmun Dhamecha being taken out of the NCB office along with Aryan Khan and Arbaaz Merchant on October 3. (Express Photo By Ganesh Shirsekar)

It has also said that it is difficult to infer at this stage that applicants are involved in an offence of commercial quantity. “This Court is of the opinion that the claim put forth by the Respondent that Applicants should be considered to have intention to commit an offence under the NDPS Act, having found in possession of commercial quantity, in the backdrop of case of hatching conspiracy is liable to be rejected,” the court said.

Last month, in its remand applications submitted before courts to seek custody of Aryan and others, the NCB had referred to the total quantity of recoveries made in the case claiming that the charge of conspiracy linked each accused, including those who were not on the cruise or those arrested subsequently with commercial quantities.

The NCB had argued that high degree of evidence is not required at the bail stage to establish the case of conspiracy. The HC said that it is required to be sensitive to the fact that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy.

“Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 (conspiracy) against the Applicants,” the court said.

On the NCB’s claim of WhatsApp chats allegedly recovered from Aryan’s phone, the court said that “nothing objectionable” was found to prove conspiracy.

“After having gone through the WhatsApp chats extracted from Applicant/Accused no. 1’s phone, nothing objectionable could be noticed to suggest that Applicant nos. 1 & 2 or all three applicants along with other Accused persons in agreement have meeting of minds and have hatched conspiracy committing the offence in question,” the court said.

On the NCB’s claim that the accused had admitted to consumption of drugs, the court said that the contention that the three accepted their involvement cannot be considered as it amounted to confessional statements which are not admissible as evidence.

The court said that even if the allegation is considered, the maximum punishment for consumption is not more than one year.

“Applicants have already suffered incarceration for almost 25 days. The Applicants were not even subjected to medical examination so as to determine whether at the relevant time, they had consumed drugs” the court said.

While the NCB had also relied on confessional statements given by the accused, the court said that it can also be considered only for purpose of investigation.

“…it is worth to clarify here that such confessional statements can be considered by the investigating agency only for the investigation purpose and cannot be used as a tool for drawing an inference that Applicants have committed an offence under the NDPS Act as has been alleged against them,” it said relying on the Supreme Court judgment in Tofan Singh vs State of Tamil Nadu.

The NCB has arrested 20 accused in all so far. A special court had rejected Aryan’s bail plea last month on October 20 relying on WhatsApp chats and agreeing with the NCB’s contention that since his friend Merchant, who was traveling with him, was found with contraband and he had its knowledge, it amounted to “conscious possession.”

Following the order of the HC granting bail to the three, so far 12 others have also been released on bail by the special court.

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