It has been nearly a month now since Shah Rukh Khan's son Aryan Khan and other accused were brought into custody by the Narcotics Control Bureau post a raid on a cruise ship where they procured small quantity drugs. While Aryan Khan was not found in possession of drugs, he has been constantly denied bail on the grounds of alleged incriminating evidence found on his WhatsApp chats. Aryan and Arbaaz Merchant's bail pleas hearing was heard by Justice Sambre at the Bombay High Court on October 26. Khan was represented by former Attorney General of India Mukul Rohatgi. Advocate Satish Maneshinde had appeared for Aryan Khan before the Magistrate court. He was joined by Senior Counsel Amit Desai as the latter was the lead counsel before the Sessions Court. However, the hearing was concluded after Rohatgi's argument as it was court closing time and the judge ordered to continue the hearing on October 28.
Today, on October 28, NCB's Additional Solicitor General Anil Singh began his arguments in court. According to Live Law India, Singh says, "The applicant (Aryan Khan) is not a first-time offender. He is a regular consumer for the past few years and the record shows that he jas been providing drugs. And there is a reference of bulk quantity and commercial quantity of drugs. He has been in contact with drug peddlers."
Additionally, ASG Singh says, "The first record I am relying on is the panchnama. We received the secret note. 11 out of 8 people were apprehended in the raid." He further said that regarding the WhatsApp chats, they have a 65B certificate under the Evidence Act.
"The applicant, even if he attempts to deal with.. Then, Section 28 will apply. And if he is involved in a conspiracy then section 29 will apply. Even if he is not found in possession, and an attempt is made, section 28 will apply. And if there is a conspiracy, automatically the rigours of section 37 of the NDPS Act will apply for bail," he adds.
Furthermore, he says, "Aryan Khan and Arbaz Merchant are childhood friends. They travelled together, they were going to be put up in the same room. They are saying we haven't tested for consumption. Where is the question of testing when they haven't consumed it? They were found in possession. It is our case that Aryan Khan was found in conscious possession of the drug."
He further revealed WhatsApp chats, panchnama and secret note being the reason behind Section 28 and Section 29 charged in the case. ASG Singh further argues, "What is the basis for saying he has tried to deal with commercial quantity? What do you have?The WhatsApp chat will show he made an attempt to deal with commercial quantity, that's all."
He said that multiple drugs were found on the 8 people who were detained from the cruise ship and then arrested. "When I say conspiracy, I calculate drugs of all persons, then it comes to that. We have WhatsApp chat and the 65B certificate as well. Drugs were found from all of them," he says, adding that the first remand was four hours after the arrest and Section 28 and Section 29 were added in the remand application then. He says, "So my contention is you (Aryan Khan) may not be in physical possession but No. 2 (Arbaz Merchant) has been found in possession."
On Rohatgi's argument on illegal arrest, ASG says, "Three remand orders of the magistrate have not been challenged. So now the accused cannot say the arrest is illegal. They must satisfy the court that the Magistrate has not taken all the factors into consideration while passing the remand order. But here the remand is only not challenged.
ASG Singh said in the court that his submission was three fold, Aryan Khan was in conscious possession, he has connection with drug peddlars and the arrest is valid; that the lapse was of 4 hours for remand. He showed the court the confident WhatsApp chats.
As per Live Law India, Mukul Rohatgi, in his rejoinder submission for Aryan Khan, says, "There was no recovery from me. Though I say I was not aware what he was carrying. But what is being put on me is commercial quality through conspiracy. So basically what five other people are carrying is put on me. But section 27A is not applied against me. There were 1300 people on the ship. No material produced by NCB to show that I knew anyone else apart from Arbaz and Aachit.The latter was arrested with 2.4 gms. The dealers cannot have just 2.4 gms."
"Their case is if it is not a coincidence, but a conspiracy. There has to be meeting of minds. Say a telephone call between all 8. So apart from Arbaz, none of these chaps have anything to do with me," Rohatgi says on Aryan Khan's behalf stating that there is no material to allege cospiracy. "Apart from the people mentioned in the chart, there were two other people one is Manav and Gaba(who invited me). They were not arrested. It is true that it is difficult to prove conspiracy but facts will always speak. If it is their argument that admissibility of Section 67 statement cannot be seen at this stage, then that would be a violation of Article 21." Bombay High Court has granted bail to Aryan Khan, Arbaz Merchant and Munmun Dhamecha. Court will pronounce detailed order with reasons tomorrow.
Mukul Rohatgi on Tuesday, October 26, argued on the basis that there was no occasion to arrest his client since there was no recovery, no consumption, or no medical test done as far as Aryan Khan is concerned. Referring to the Whatsapp chats that have been presented as evidence in court, Rohatgi argued, "None of those chats have anything to do with the onset of this saga or...conspiracy if you want to call it that. The chats will have to be tested at the time of trial. But to use a general phrase of conspiracy, there is nothing."
Advocate Amit Desai had started his arguement for Arbaaz Merchant on Thursday when the Judge took forward the hearing for Wednesday, October 27. The court took up Aryan Khan's bail hearing at around 4 pm. The hearing continued with Adv Amit Desai talking about Aryan Khan and Arbaaz Merchant. He pointed out that Section 28 and 29 were not added on the day of their arrest on October 3. "Even those who apprehended them, treated them as coming there individually. Punishment for which is one year," he argued.
"Bail is the rule and jail is the exception. Now it has become 'arrest is the rule and bail is the exception," remarked Desai after referring to past judgements to argue that Aryan and Arbaaz's arrest was illegal.
"First remand application does not talk about conspiracy. So the court, at the time of the first remand, was misled into believing that they were also charged under Sections 28 and 29 of the NDPS Act," Desai said. He said that the panchnama "demolishes the case of conspiracy".
Desai also pointed out the bail granted to two guests who were taken into custody from the same cruise. He said that the replies filed to their bail pleas were similar to that of Aryan and Arbaaz. He also told the judge that 2.4 gms of ganja was recovered from one of these guests.
Forty-five minutes into the hearing, the judge reminded Desai of the time and said that he will take the matter tomorrow. Desai asks for time to quickly conclude his argument. Desai pointed out how according to them 6 gms were recovered from Arbaaz and 5 gms from Munmun. Despite this, the remand application mentions 21 gms of charas.
Talking about the Whatsapp chats, Desai said that there are no chats that connect conspiracy to the rave party. He also pointed out media getting access to chats before it is even in court records. "The fundamental thing is if all these(chats) are going to be treated as confessions, then such type of evidence has already been discarded by Justice Dere in a judgement," he argued. Desai questioned the need for custody when the maximum punishment is one year.
After Desai concludes his argument, Mukul Rohatgi makes submissions for Aryan Khan. Rohatgi quickly argues that the remand application is misleading and bail may be granted.
Advocate Ali Kashif Khan argued for the third accused Munmun Dhamecha. He said that nothing was recovered from his client and that Munmun is young woman with no connection with the other accused. Arguing about the conspiracy angle, Khan said that Section 29 has been misused not just against his client but others as well, by joining small quantity people with those from whom intermediary and commercial quantities were recovered.
On October 26, his bail plea was heard at the Bombay High Court, and representing Khan was former Attorney General of India, Mukul Rohatgi. Advocate Satish Maneshinde had appeared for Aryan Khan before the Magistrate court. He was joined by Senior Counsel Amit Desai as the latter was the lead counsel before the Sessions Court. The judge concluded the hearing for the day and said it will be continued on October 27 at 2.30 pm.
Aryan Khan was detained by the Narcotics Control Bureau (NCB) on October 2, 2021, after the NCB raided a cruise ship. He was arrested on October 3 under Section 8(c), 20(b), 27, 28, 29 and 35 under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
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