Mumbai: A Special NDPS court has refused bail to Aryan Khan, son of Bollywood actor Shahrukh Khan, Arbaaz Merchant and Munmun Dhamecha, in the cruise ship drug case.
Special Judge VV Patil pronounced the order
The NCB arrested them on October 3, following a raid at the international departure terminal of a Goa-bound cruise the previous day.
They are booked under sections 8(c) read with 20b (purchase), 27 (consumption), 28 (attempt to commit offence), 29 (abetment/ conspiracy) and 35 (presumption of culpable mental state) of the NDPS Act, after six and five grams of charas was allegedly seized from his friend Merchant and model Dhamecha respectively.
The court reserved their bail pleas for orders last Thursday, after hearing the Additional Solicitor General Anil Singh for the Narcotics Control Bureau and Senior Advocate Amit Desai for Khan.
Advocate Taraq Sayed appeared for Merchant and Advocate Ali Kashif Deshmukh for Dhamecha.
The ASG argued that Khan was a regular consumer of drugs, and the contraband found on Merchant was for both of them to have a “blast” on the cruise. The agency also claimed that prima facie Khan has a role in illicit procurement and distribution of contraband and his chats indicate an international link.
The NCB mainly relied on Khan’s WhatsApp Chats, the raid seizure panchnama, and two disclosure statements under section 67 of the NDPS Act.
Conversely, Senior Advocate Amit Desai argued that NCB didn’t recover contraband or money from Khan, which could’ve been used to purchase drugs. WhatsApp chats were cited for entangling Khan in the present proceedings.
Desai claimed that assuming Khan was a consumer, the legislature mandates a reformative approach as the NDPS Act was amended in 2001, and punishment for consumption was reduced to just one year. Significantly, Desai argued that while the NCB accused Khan of ‘illicit trafficking’, to oppose bail he was not booked under section 27A which deals with trafficking.
WhatsApp chats can easily be misunderstood, he said.
“None of the recoveries mentioned in the panchnama was from Aryan. If he did not have cash, he had no plans to purchase. If he had no substance, he wasn’t going to sell or consume,” Desai submitted.
Advocate Sayed also pointed out that there wasn’t a separate seizure panchnama under which NCB took charge of the mobile phones. Therefore, WhatsApp chats cannot be relied on.
It is NCB’s case that though nothing was recovered from Khan’s person, he was in “conscious possession” of the contraband owing to his connection with his friend Arbaz Merchant (from whom 6 gms charas was recovered). Moreso, as Khan admitted in the seizure panchnama that the drugs were meant to be smoked on the cruise.
Desai said ‘confessional statements’ (u/s 67 of the NDPS Act) are not admissible evidence according to the Supreme Court Judgement.
Possession Not Necessary
The agency relied on the case of Showik Chakraborty v. Union of India, where bail was denied in a case of alleged procurement of drugs, despite no recovery being made from Showik’s person.
However, Desai argued that Showik’s case has to be distinguished from an end consumer’s case because Showik didn’t consume but dealt in drugs.
Case of conspiracy, rigours on grant of bail applicable
A day after Khan was remanded to NCB’s custody, the agency invoked the charge of conspiracy against all accused.
ASG Singh referred to subsequent arrests of several suppliers to claim that all the accused persons form a part of a “larger chain”, nexus and their involvement in a conspiracy to commit illegal acts and violations under section 29 cannot be ruled out. Moreover, one case cannot be considered in isolation.
The NCB relied on Rhea Chakraborty v. Union of India, where it was held that all the offences under the NDPS Act are cognizable and non-bailable. Therefore, the rigours under section 37 before an accused is granted bail would apply.
Retraction of accused’ statement a matter of trail
As per NCB, all three accused had given voluntary statements under section 67 of the NDPS Act, which they later retracted.
Relying on the case of Union of India v. Shiv Shankar Jaising, ASG Singh argued that retraction of a voluntary statement u/s 67 of the NDPS Act is a matter of trial. However, Desai reiterated that these statements can only be used for investigation.
Young Kids, Not Drug Peddlers
Desai argued that Section 20b would not apply because there is no possession. Section 28 would also have no application since Aryan was picked up at the gangway, and thus, in law, there was no attempt.
“We as a country have moved into a reformative state… They are some young kids. In many countries these substances are legal. Let us not penalize in bail. Let us not make it worse for them. They have suffered enough, they have learnt their lesson, if at all. They are not peddlers, racketeers or traffickers,” Desai argued.
“You are a person at the bottom of the chain. You’re a person affected by the drug menace according to this Government’s own policy, but instead of reforming you, they will pick you up and put you in prison,” he added.
However, the ASG responded that society has to be rid of the drug menace. And this was not what the freedom fighters envisioned in the land of Mahatma Gandhi and Buddha.