Friday, 29 October 2021 | TN Raghunatha | Mumbai
In a major development that has exposed chinks in the investigations carried out by the Narcotics Control Bureau (NCB) in the mid-sea drug bust case, the Bombay High Court on Thursday granted bail to Bollywood superstar Shah Rukh Khan’s son Aryan Khan and two others, 25 days after they were arrested in the sensational case.
After hearing arguments from all sides for three days, a single-member HC bench of Justice Nitin W Sambre granted bail to Aryan, his co-accused Arbaaz Merchant and Munmun Dhamecha.
“All three applications are allowed. I will pass detailed orders by tomorrow evening,” justice Sambre said.
The judge said he would pronounce the bail conditions as part of the detailed bail orders to be passed on Friday.
Aryan and two other accused may walk out of the Arthur Road Central Jail, where they are currently lodged, either on Friday evening or Saturday morning, once their lawyers complete the bail formalities.
Though the reasons for the bail granted to Aryan and two others will form a part of the order to be passed on Friday, the judge is likely to spell out the shortfalls in the probe by the NCB that led to the high court granting bail to three accused in the case.
Thursday was the second setback that the NCB suffered in the mid-sea drug bust case in three days. Earlier on Tuesday, Special Judge VV Patil, who presides over the offences registered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, had granted bail to two accused Manish Rajgaria and Avin Sahu after holding that the NCB had failed to produce evidence on record to prove conspiracy charge against them-that they were in contact with other accused in the case.
Judge Sambre pronounced bail to Aryan, Arbaaz and Munmun after Additional Solicitor General (ASG) Anil Singh, appearing for the NCB, argued against bail being granted to three accused and Aryan’s lawyer and former Attorney General of India Mukul Rohatgi made final arguments rooting for bail to his client.
Aryan, Arbaaz, Munmun were among eight persons who were initially detained on the night of October 2 and later arrested on October 3, after the NCB officials busted a rave party and seized 13 grams of cocaine, 5 grams of MD (Mephedrone), 21 grams of Charas, 22 pills of MDMA (Ecstasy) and Rs 1.33 lakh in cash from Goa-bound Cordelia Cruises’ Empress ship, off the Mumbai coast.
The total number of arrests in the sensational drug bust case is 20. Those arrested include a foreign national Okara Quazma and a local person Shivraj Harihan.
Aryan, Arbaaz, Munmun and other accused have been booked for offences under Section 8(c), 20(b), 27, 28, 29 and 35 under the NDPS Act.
Opposing bail to Aryan and two other accused in the case, the ASG among other things told the court that Aryan “is a regular consumer of drugs and there is evidence to prove that he has been providing drugs” and that he was in the conscious possession of drugs.
“We have argued about conscious possession. If two people are together and one person knows about the possession and use of drugs of the second person, then the first person is in conscious possession….They (Aryan and Arbaaz) are childhood friends. They travelled together and were going to be staying in the same room,” Singh told the court.
The ASG went onto tell the court: “They are arguing that we have not tested to find out about consumption. We are only arguing about possession. Aryan Khan was in conscious possession of drugs. This case is about conscious possession and planning to consume. Section 29 of NDPS Act does not say that the person has to be in possession. When we apply Section 28 and 29 commercial quantity kicks in. He made an attempt to deal with commercial quantities.”
“Multiple drugs were found with all eight people from all places on the same day. See the quantity and nature of drug,” the ASG told the court.
When the court asked him, “So, you are saying it is cumulative?”, the ASG responded by saying: “When I say conspiracy, when I calculate drugs of all persons, then it comes to that.”
On the issue of WhatsApp chats that the NCB is relying upon heavily in the case, Singh told the court: “WhatsApp chats cannot be disputed because we have 65B statements.”
Alluding to the arrest memos, the ASG said: “The arrest memo mentions commercial quantity and it mentions that he had consumption with commercial quantity…. My contention that there are three orders of remand which have not been challenged and they cannot come now and say that arrest was illegal. They have still not challenged the remand orders.”
Contesting the conspiracy charge made against Aryan, his lawyer Rohatgi said: “I was not aware what he was carrying, take it that he knew… But the most that they can allege against us is commercial quantity collectively. That is added with conspiracy. There is no 27A invoked against me. The conspiracy with 5-8 people with me, their recovery after you total up then there is a commercial quantity…There were 1300 people on the ship and there was a connection between Aryan and Arbaaz.”
Contesting the judgments cited by the ASG under Section 67 of the NDPS Act, Rohatgi told the court: “I (Aryan) knew only Arbaaz, I did not know anyone else. It is true that it is difficult to prove that there is a common meeting of mind. But facts cannot be ignored. There has to be a meeting of minds. There may be conscious possession of 6 gm, but how do you prove the other recovered substance?
Earlier on Tuesday, Rohatgi had – while making a case for Aryan’s bail – had among other things argued that since there was no recovery of drugs from his client, Aryan had been “wrongly arrested”.
Rohatgi had told the court that the “statements recorded by the NCB officers under NDPS Act, 1985 were not admissible in court and that since there was no recovery of drugs from his client, Aryan had been wrongly arrested in the case”.
Rohatgi had contested the whatsApp chats that his client had with others on two counts- that they were “old chats and do not pertain to the cruise or conspiracy” and that whatsApp chats were of no consequence since there was no panchnama of the mobile phone seized from Aryan. He also argued that his client was not admitting to consumption or use of drugs and “the only thing is conscious possession and that is also a small quantity”.
Earlier, ahead of the start of the hearing on Aryan’s bail plea, the NCB had claimed in its reply filed before that Aryan had international linkages, was an influential person and could derail the probe and tamper with evidence. It told the court that the manner in which “panch witness” Prabhakar Sail’s affidavit was “clandestinely distributed and widely publicised” in the media, it was an example of mala fide attempt to derail the probe.
In his two-page reply, Aryan distanced himself from Sail’s affidavit and prayed the court should decide his bail application on merits “uninfluenced by allegations and counter allegations by others”. He also told the court in his affidavit that he had no allegation against anyone in the prosecution. Even during his arguments made on behalf of Aryan, Rohatgi told the court: “Kindly keep me away from that controversy. I am making it clear I have nothing against any NCB officer. I have no grievance”.
Contesting the arrest of Aryan, Rohatgi quoted the Tofan case and told the court: “The statements made to NCB officers are inadmissible. Since there is no recovery, I submit I am wrongly arrested”.
Later on Wednesday, the lawyers seeking bail for two other accused in the mid-sea drug bust case — Arbaaz and Munmun -had contested vehemently the conspiracy charges slapped wrongly by the NCB against their clients.
“Sections 27 and 20(b) of the NDPS Act are for consumption of drugs, that is what was there in the arrest memo. If there was no conspiracy on assessment then the punishment was for a year and there was inter se no conspiracy,” Desai had told the court.
Advocate Ali Kaashif Khan Deshmukh, appearing for Munmun told the court: “I (Munmun) was invited on the cruise and was in a room along with one Somiya and Baldev when the NCB came for the alleged search. Arrest memo is made against me, but there is no material to incriminate me”.
