The Bombay High Court was hearing bail applications filed by Aryan Shahrukh Khan who was arrested by officers of NDPS for violation of offences under the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act, 1985’). It is the case of prosecution that on specific information received, the officers of NCB effected seizure of 13 grams of Cocaine, 5 grams of Mephedrone (MD), 21 grams of Charas and 22 Pills of MDMA (Ecstacy) and 1,33,000/- INR at International Cruise Terminal, Green Gate, Mumbai under panchanama dated 02.10.2021. Accused were arrested by the officers of Investigating Agency for their involvement in consumption, sale, purchase and attempt to commit offense under section 8(c) r/w section 20(b), section 27, 28, 29 read with section 35 of NDPS Act, 1985.
Aryan Khan had sought in lower court bail on the grounds that he is innocent and he has been falsely implicated in the present case. No narcotic drugs or psychotropic substances have been seized from him and the allegations, assuming without admitting them to be true, would pertain strictly to small quantities. That there is nothing on record to suggest that he in any way connected with the production, manufacture, possession, sell, purchase, transport, import, export or use of any psychotropic substance or the financing, illicit trafficking and/or harboring of offenders in relation to any narcotic drugs or psychotropic substances and hence the ingredients of any offence under the NDPS Act, 1985 Act. It was further submitted that the applicant has no criminal antecedents of any nature whatsoever. The star son has pleaded before lower court that strong roots in the society and is a permanent resident of Mumbai and there is no likelihood of his absconding. He is ready and willing to co-operate with the Investigating Agency as and when required.
Arbaaz Merchant in similar case sought bail from lower court on the grounds that he has been falsely implicated in the case. The alleged recovery at his instance is an independent recovery and even if same is considered to be true it amounts to 6 grams of Charas which is small in quantity. There is absolutely no connection between him and the organizers of the Cruise. The panchanama itself is evident that recoveries effected in the instant case at the alleged spot are independent recoveries and he has no connection whatsoever with the alleged recoveries made at the instance of other co-accused. He also pleaded permanent resident of Mumbai and has a family to maintain and therefore he would not abscond.
Ms. Munmun Dhamecha sought bail on the grounds that she is not at all concerned with alleged offence in any manner. She is nowhere related and connected with other co-accused. She was invited as a guest in the party, which was held at Cordelia Cruise. One Mr. Baldev booked room in the said Cruise Ship. When she entered the room along with Ms. Soumya and Mr. Baldev, the NCB raid occurred in the room where NCB officers found small packet of hash lying on the floor which claims to be of 5 grams weight in quantity. It is further contended that said Mr. Baldev and Miss Soumya Singh, who were present in the room with her were left scott free. It is further submitted that there is no recovery from her. She contended before court below that even if for sake of argument it is assumed that there is recovery, said recovery is of small quantity as per NDPS Act which deserves bail. There is no bar of Section 37 to grant bail.
Perusal of papers show that though nothing was found in possession of Aryan Khan, 6 grams of Charas was found with accused no. 2 which was concealed in his shoes. Admittedly both are friends since long. They travelled together and they were apprehended together at the International Cruise Terminal. Further in their voluntary statements both of them disclosed that they were possessing said substance for their consumption and for enjoyment. Thus all these things go build the case against Aryan Khan by agency was having knowledge of the contraband concealed by accused no.2 in his shoes. Thus it was also argued that it was in conscious possession of both the accused.
It was also taken as plea by Aryan Khan and other co accused that drug recovered meant for consumption purpose and it was not for sale, purchase or for any other purpose and rigors of Section 37 would not apply and there is no bar to grant bail. It is also argued that though prosecution invoked Sec. 29 of NDPS Act, there is nothing to show nexus of present applicants with other accused.
It is vehemently argued by Ld. ASG that all the accused are part of large drug network. Their role cannot be segregated from each other. So far as accused no. 1 is concerned, this is not the first time when accused no. 1 is involved in illicit drug activities. There is ample evidence in the form of Whatsapp chats of accused no.1 with foreign national and unknown persons dealing in drugs. There is reference of hard drugs and bulk quantity in the Whatsapp chats which cannot be meant for consumption, with unknown persons who are suspected to be part of international drug racket.
During course of argument Whatsapp chats were shown to the Court. Perusal of Whatsapp chats reveals that there are chats of applicant/accused no.1 about drugs with unknown persons. There is also reference of bulk quantity and hard drug in the chats. There is prima-facie material showing that applicant/accused no 1 was in contact with persons dealing in prohibited narcotic substances as alleged by the prosecution.
As against this, Ld. ASG in lower court placed his reliance on the citation of Mahimananda (supra) wherein Hon’ble Apex Court held that :
“It is common knowledge that generally direct evidence may not be available to prove conspiracy, inasmuch as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the court, while evaluating the material, may rely upon other material which suggest conspiracy.”
Papers were shown to the Court below which reflected that both the accused voluntarily surrendered their mobiles to the officers of the respondent at the time of interrogation. Moreover, while deciding bail application, apart from the gravity and seriousness of the offence, the antecedents of the applicant, possibility of tampering with evidence and likelihood of commission of offence, if released on bail are the relevant factors that needs to be taken into consideration. On the likelihood of connection with the Whatsapp chat trail, the lower court was of the opinion that bail cannot be granted.
Mr Rohatgi said the arrest was wrong and infringed on his constitutional guarantees. He also told the court that the case against Aryan was built entirely on two-year-old WhatsApp chats that were “irrelevant” and had nothing to do with the cruise.
“These are young boys. They can be sent to rehab and they need not undergo trial,” Mr Rohatgi said.
The special anti-drugs court that denied him bail last week had said he knew about charas hidden in his friend Arbaaz Merchant’s shoe, and this amounted to “conscious possession”.
Mr Rohatgi called this view far-fetched. “I have no control over what is found in Arbaaz’s shoe. There is no question of conscious possession. Arbaaz is not my servant, he is not in my control,” he said.
Yesterday, the anti-drugs agency asserted that Aryan Khan was a regular consumer of drugs and that his WhatsApp chats point at the procuring of “hard drugs” in commercial quantity.
“Accused number 1 (Aryan Khan) is not a first-time consumer,” said the NCB’s lawyer Anil Singh, the Additional Solicitor General.
“He is a regular consumer since last few years and he has been procuring drugs. There is a reference of procuring drugs in commercial quantity and the drugs are hard drugs. He has been in contact with peddlers,” said Mr Singh.
When the judge asked on what basis the agency had found him dealing in a “commercial quantity”, the NCB referred to his WhatsApp chats.
“WhatsApp chat I am relying on will show he had made an attempt to deal with commercial quantity. Not only that, when they were apprehended on the ship, multiple drugs were found with all eight. It cannot be a coincidence. If you see the quantity and nature of drug it cannot be coincidence,” Mr Singh said.
Mr Rohatgi countered that there were 1,300 people on the cruise. “There are 500 rooms in the Taj. If two people are consuming in two rooms will you hold the entire hotel? There is absolutely no material for purposes of conspiracy,” he said.
