Sunday, 21 November 2021 | TN Raghunatha | Mumbai
NCB can’t use confessional statements as a tool: HC Judge
Ripping apart the claims made by the Narcotics Control Bureau (NCB) against three of the main accused, the Bombay High Court (HC) has rejected outright its allegation that Bollywood superstar Shah Rukh Khan’s son Aryan, two other accused Arbaaz Merchant and Munmun Dhamecha were part of the conspiracy in the case and disallowed its effort to use their “confessional statements as a tool” to infer that they had committed offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Giving his reasoning for granting bail to Aryan, Arbaaz and Munmun in the mid-sea drug bust case on October 28, a single-member HC Bench of Justice Nitin W Sambre noted in his detailed order released on Saturday: “… there is no material on record to infer that the applicants have hatched a conspiracy to commit the offence. That being so, at this stage, it is difficult to infer that the applicants are involved in an offence of commercial quantity. As such, parameters laid down under Section 37 of the NDPS Act will hardly be of any consequence while considering the prayer for grant of bail.”
The Judge slammed the NCB for not subjecting the accused to medical examination “so as to determine whether at the relevant time, they had consumed drugs” and made mince meat of the investigators’ claim that they had found incriminating WhatsApp chat from Aryan’s phone, by observing that “nothing objectionable could be noticed to suggest that he and two other accused had hatched a conspiracy.”
At the beginning of his summarised order relating to all the accused, the Judge said that they had no criminal antecedents of similar nature or otherwise. While Aryan and Arbaaz were students, Munmun was working as model. Alluding to the claim to the contrary made by the NCB, the Judge said: “As far as the accused number 1 Aryan is concerned, but for irrelevant WhatsApp chats noticed in his mobile, there is no material evidence to connect all these applicants with other co-accused in the case.”
Observing that Aryan was not found in possession of any objectionable substance, the Judge said that Arbaaz and Munmun were found to be in illegal possession of drugs which is covered under the provisions of the NDPS Act.
If independently considered, drugs seized from Arbaaz and Munmun was a small quantity “which is not a disputed fact.”
Tearing into the NCB’s allegation that Aryan and two other accused were part of the conspiracy, the Judge said: “For inferring act of hatching conspiracy on the part of Aryan and two other accused, there has to be positive evidence about an agreement to do a unlawful act or to do a lawful act by unlawful means and such agreement must precede meeting of minds… There is hardly any positive evidence to convince this court that all the accused persons with common intention agreed to commit unlawful act.”
“So far as the case of conspiracy against the applicants also, there is absence of material on record of them having meeting of minds with other accused who were named in the offence in question,” the judge noted.
Referring to the Prosecution’s stand that the accused had admitted to having committed an offence under NDPS Act, the maximum punishment prescribed is not more than one year for such offence. “The applicants have already suffered incarceration for almost 25 days. The applicants were not even subjected to medical examination to determine whether at the relevant time, they had consumed drugs,” the Judge observed.
On the confessional statements of the three accused recorded by the NCB, the Judge said: “Once the confessional statements of applicants/accused cannot bind them of the offence in view of the judgment of the Supreme Court in the matter of Toofan Singh case, the claim put forth by the respondent that the accused persons have accepted their involvement in the crime is liable to be rejected”.
Alluding to the submissions made by Additional Solicitor General (ASG) Anil Singh, who appeared for the NCB in the case, the Judge noted: “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.”
The Judge also noted that Section 37 of the NDPS act “will not be attracted in the case in hand as this court has already observed that there is no material on record to infer that applicants have hatched conspiracy to commit the offence.”
With Aryan and two other accused having already complied with first of the demands i.e. execution of personal bond with one or sureties for the like amount, the other conditions that the Judge has stipulated in his order include: They shall not indulge in any activity similar to the activities on the basis of which the said CR stands registered against them for offences under the NDPS Act; they shall not try to establish communication with co-accused or any other person involved directly or indirectly in similar activities or make any call to any person indulging in similar activities as alleged against them, through any mode of communication.
In other conditions, the court has restrained Aryan and two others from making any attempt to neither influence the witnesses nor tamper with the evidence, which is prejudicial to the proceedings before the Special NDPS court and mandated him to surrender his passport before the Special Court immediately and not leave the country without prior permission from the Special court.
