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Sunday, October 17, 2021

‘Not maintainable’: Court rejects bail pleas by Aryan Khan, 2 others

Accused can move fresh application before special NDPS court

Written by Sadaf Modak | Mumbai |
Updated: October 9, 2021 7:58:39 am
Bollywood actor Shah Rukh Khan's son Aryan Khan, center, escorted by law enforcement officials from Narcotics Control Bureau office, is being taken for a medical check up, in Mumbai | Express Photo by Ganesh Shirsekar

A metropolitan magistrate’s court on Friday rejected the bail applications filed by Aryan Khan, son of actor Shah Rukh Khan, his friend Arbaaz Merchant and anchor-model Munmun Dhamecha — who were arrested last week in connection with a drug raid on a cruise ship — stating that they were not maintainable before it. The plea was not decided on the merits and facts of the case.

Their lawyers will now have to move a special court designated under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

Since the office of the Mumbai city civil and sessions court — where the designated special NDPS court is located — will not be working on Saturday, Aryan and the two others may have to spend the weekend in jail. Their lawyers are likely to move the special court on Monday.

On Thursday, the magistrate’s court had rejected the Narcotics Control Bureau (NCB) plea seeking further custody of the three along with five others present on the cruise. It had instead ordered for the eight to be sent to judicial custody, following which the lawyers filed for bail.

The six male accused were taken to Arthur Road jail, while the two women accused taken to Byculla women’s jail.

On Friday, Additional Solicitor General (ASG) Anil Singh started his arguments around 1 pm, stating that the magistrate’s court does not have the power to decide on the bail pleas since the case is exclusively triable before the special NDPS court.

The NCB in its reply said that while remanding the accused to judicial custody on Thursday, the magistrate’s court had also in its order said that the case will be transferred to the special court which has its jurisdiction. ASG Singh said that as per the Act, the bail can only be decided by the special court which will conduct the trial.

“I am not opposing their right to claim bail, I am challenging bail being filed in this court as it does not have the jurisdiction to hear the pleas,” he argued.

The defence lawyers, however, said that since the court had the powers to hear their remand, it could also decide their bail pleas. While Singh insisted that the court first decide on the maintainability of the applications before hearing on merits, the court went on to hear the arguments on both merits and maintainability by all three accused and the NCB.

At 5 pm, additional metropolitan magistrate R M Nerlikar said the bail applications are not maintainable and hence rejected.

Since the office of the Mumbai city civil and sessions court — where the designated special NDPS court is located — will not be working on Saturday, Aryan and the two others may have to spend the weekend in jail. Their lawyers are likely to move the special court on Monday.

On Thursday, the magistrate’s court had rejected the Narcotics Control Bureau (NCB) plea seeking further custody of the three along with five others present on the cruise. It had instead ordered for the eight to be sent to judicial custody, following which the lawyers filed for bail.

The six male accused were taken to Arthur Road jail, while the two women accused taken to Byculla women’s jail.

On Friday, Additional Solicitor General (ASG) Anil Singh started his arguments around 1 pm, stating that the magistrate’s court does not have the power to decide on the bail pleas since the case is exclusively triable before the special NDPS court.

The NCB in its reply said that while remanding the accused to judicial custody on Thursday, the magistrate’s court had also in its order said that the case will be transferred to the special court which has its jurisdiction. ASG Singh said that as per the Act, the bail can only be decided by the special court which will conduct the trial.

“I am not opposing their right to claim bail, I am challenging bail being filed in this court as it does not have the jurisdiction to hear the pleas,” he argued.

The defence lawyers, however, said that since the court had the powers to hear their remand, it could also decide their bail pleas. While Singh insisted that the court first decide on the maintainability of the applications before hearing on merits, the court went on to hear the arguments on both merits and maintainability by all three accused and the NCB.

At 5 pm, additional metropolitan magistrate R M Nerlikar said the bail applications are not maintainable and hence rejected.

On merits, Singh argued that even while no drugs were found from Aryan and small quantities of charas were found from Merchant and Dhamecha, their roles cannot be looked at in isolation since the case involves the charge of conspiracy. “The crime is one, the case is one. One chargesheet will be filed against all the accused and there will only be one trial. The offence relates to recoveries linked to a cruise ship. It cannot be said that these three accused should be looked at in isolation,” Singh said. He added that it cannot be a coincidence that there were others found in the cruise who were also carrying contraband, stating that the accused are regular users and consumers of drugs.

Lawyer Satish Maneshinde, representing Aryan, said the NCB did not have any material against him as there was no recovery from him. He said the court had already rejected the NCB’s plea for further custody which had included grounds like Aryan’s WhatsApp chats and his statement which is not admissible as evidence.

“Nothing is found on him, not even an ounce. Yet, so much capital is being made out of this. I thought they (NCB) will take a lenient view as there was nothing found on him. On his first remand, I had conceded to being given one-day custody. I did not raise the issue of bail. Even if people with him are found with drugs, there is no material to link him to them,” Maneshinde argued. He submitted a list of 22 judgments of High Courts and Supreme Court as precedents for grant of bail and on maintainability.

The NCB opposed Aryan’s bail plea on the grounds that he is an influential person and if released may tamper with evidence and influence witnesses in an ongoing investigation.

“Merely because a person belongs to affluent family it cannot be said that evidence will be tampered with. What influence have I used? I am suffering for 6-7 days. People roaming free with much serious offences. I am not one of those,” Maneshinde argued.

He added that Aryan belongs to a respectable family and has roots in the society with his parents, sister and brother living in the city. He added that he has an Indian passport, there was no question of him absconding and that he would cooperate with the probe.

Singh said that while it was argued on Thursday that Aryan’s chats with co-accused Aachit Kumar were about football, the details show that there was a discussion about bulk quantity of drugs. He also said that while it was claimed that Aryan had gone to the cruise alone and not with Merchant, from whom 6 grams of charas was found, their statements show that they had met at the Bandra residence of Aryan and then travelled to board the cruise together in his car.

Lawyer Taraq Sayed, representing Merchant, said the NCB had opposed his plea seeking CCTV footage from the terminal from the day of the incident citing “prejudice to its case”. “Why is the NCB opposing it? It means that their CCTV footage is not in tandem with the NCB’s claim,” Sayed said. He added that even at worse, the case against Merchant was of consumption and he could not be denied bail by claiming that he is connected with the other accused.

Lawyer Ali Kaashif Khan for Dhamecha said that the NCB had not mentioned any connection between her and any other accused. He said that while the NCB’s panchnama states that five grams of charas was found in a room where she and two others were present, it had not shown how it concluded it belonged to her while letting off the other two.

The accused can move a fresh application before the special NDPS court, which will be heard on merits. The NCB on Friday also produced before the court a Nigerian national, Chinedu Igwe, stating that he was found with commercial quantity of 15 grams of Ecstasy and had supplied drugs to the cruise.

Lawyer Gorakh Liman said that the NCB was alleging charges against him like financing drug trafficking without any proof. The court sent Igwe to NCB custody till October 11.

So far 18 people have been arrested in the case.

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