Mumbai: From the impropriety of consuming drugs on Gandhi Jayanti, to the difficulty of establishing conspiracy because “only conspirators know how they have conspired”. These are among the arguments made by Additional Solicitor General (ASG) Anil Singh in the Bombay High Court Thursday as he sought to present the Narcotics Control Bureau’s case to keep actor Shah Rukh Khan’s son Aryan Khan in custody.
However, the Bombay High Court rejected the submissions and granted bail to Aryan Khan and his friends and co-accused, Arbaaz Merchant and Munmun Dhamecha, who were detained and then arrested after an alleged drug bust by the NCB on a cruise ship off Mumbai.
The trio has been booked under the Narcotic Drugs and Psychotropic Substances (NDPS) Act 1985, including sections 8(c) read with 20b (purchase), 27 (consumption), 28 (attempt to commit offence), 29 (abetment/conspiracy) and 35 (presumption of culpable mental state).
During the hearing, Anil Singh tried to justify the conspiracy charge against the accused.
Senior advocate Mukul Rohatgi, who represented Aryan, argued that there was “no meeting of minds” and “there was no discussion that they met and decided that they will get the substance and smoke”, according to the details of the hearing reported by legal news portal BarandBench.
Citing an argument made by Rohatgi, who noted during the hearing that the raid was conducted on 2 October, or Gandhi Jayanti, Singh was quoted as saying, “I was saying at least on Gandhi Jayanti you should have left these things”.
In doing so, he submitted, “Conspiracy is difficult to prove. Only the conspirator knows how they conspired.”
Among other things, the ASG referred to WhatsApp chats where the accused purportedly said they were going to have a “blast”.
Despite the fact that no drugs were recovered from Aryan Khan, a Mumbai court denied him bail on 20 October, saying he had “knowledge” that Merchant had hidden 6 grams of charas in his shoes. Therefore, the court said, Aryan was in “conscious possession” of the drugs himself.
Aryan then approached the Bombay High Court challenging this order. Justice N.W. Sambre of the Bombay High Court has posted the matter for 2.30 pm Friday to deliver the detailed order setting conditions for bail.
‘Bail is not a rule’
Referring to bail provisions under the NDPS Act, the ASG argued that “bail is not a rule” in cases under the law.
Section 37 of the NDPS Act requires the court to have “reasonable grounds” to believe that the accused is not guilty and that he is unlikely to commit another offence while on bail. Even the bail provision under the anti-terrorism Unlawful Activities (Prohibition) Act, which has been the talking point over the past few years owing to its stringency, does not have any such pre-condition.
The Supreme Court acknowledged this in February this year, saying the bail provision under the UAPA is “comparatively less stringent” than the bail provision under the NDPS Act.
Using purported WhatsApp chats, Singh also sought to assert that Aryan Khan was a “regular consumer of drugs”, and that he is “not a first-time offender”.
“He is a regular consumer for the past few years and the record shows that he has been providing drugs. And there is a reference of bulk quantity and commercial quantity of drugs. He has been in contact with drug peddlers,” he said.
He further argued that the “cumulative drug quantity” seized from all the accused was “commercial quantity”, attracting a higher penalty under the law.
Noting the alleged recovery of charas from Merchant, he added, “If two people are travelling together, and the first person knows the drug is with the other and it is for their consumption… Aryan and Arbaaz are childhood friends. They travelled together; they were going to be put up in the same room,” Singh argued.
(Edited by Sunanda Ranjan)