Bombay HC bail order has demolished NCB’s case against Aryan Khan who can now seek discharge, say experts

The speaking order of Bombay High Court posted on its website on Saturday granting bail to Aryan Khan, son of Bollywood actor Shah Rukh Khan, arraigned in the cruise ship drug case and put behind bars, has effectively demolished the charges brought against him by the Narcotics Control Bureau, legal experts have said.

As reported by National Herald on October 4, the charges brought against Aryan Khan include purchase, possession and use of banned substances. As per the arrest memo, which was accessed by National Herald, he was booked for contravention of Sections 8(c), 20(b), 27 read with Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for the sale and possession of various drugs.

In a 14-page order, Justice Nitin Sambre said that there was no prima facie evidence against Aryan Khan and two other co-accused Arbaaz Merchant and Munmun Dhamecha for the offence of conspiracy under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

"Having regard to the material brought on record by the Respondent on the issue of conspiracy, this Court prima facie has not noticed any positive evidence against the Applicants on the said issue. This Court is of the opinion that the claim put forth by the Respondent (NCB) that Applicants should be considered to have intention to commit an offence under the NDPS Act, having found in possession of commercial quantity, in the backdrop of case of hatching conspiracy is liable to be rejected," the court said.

The court said that merely because the accused were travelling on the cruise, cannot be a ground to invoke the offence of Section 29 against the accused.

"This Court is required to be sensitive to fact that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the Applicants," the judge added.

Khan along with Merchant and Dhamecha were granted bail by the High Court on October 28. The Court had delivered a short order while the speaking order setting out the reasons was delivered only today.

The court noted that no drug was found in Khan's possession while the quantity recovered from Merchant and Dhamecha were 'small' quantities under the NDPS Act. In such a scenario, in order to invoke offence of conspiracy against the accused, there has to be positive evidence about an agreement to do an unlawful act or to do lawful act by unlawful means and such agreement must precede with meeting of minds, the court said. But there was no such material in the instant case, the judge held.

The court observed that the WhatsApp chats of Aryan Khan did not have anything objectionable suggesting that there was conspiracy on his part to commit offences under the NDPS Act. "After having gone through the Whats-App chats extracted from Applicant/Accused no. 1’s (Khan) phone, nothing objectionable could be noticed to suggest that Applicant nos. 1 & 2 (Merchant) or all three applicants alongwith other Accused persons in agreement have meeting of minds and have hatched conspiracy committing the offence in question," it said.

There is hardly any positive evidence on record to convince this court that all the accused persons with common intention agreed to commit unlawful act, the order underscored.

"Rather the investigation carried out till this date suggests that Applicant/Accused nos. 1 & 2 (Khan and Merchant) were travelling independent of Applicant/Accused no. 3 (Dhamecha) and there was no meeting of minds on the aforesaid issue," the Bench ruled.

The court noted that confessional statements made by the accused to NCB will have no value as held by the Supreme Court in the matter of Tofan Singh v. State of Tamil Nadu. Since the offence of conspiracy is no made out, the rigours of Section 37 on grant of bail will not apply, it said.

“The order of the Hon'ble High Court of Bombay, after having opportunity to hear both the sides and going through all the relevant records, especially the WhatsApp chats of the Applicant / Accused Aryan Khan and testing the same in the light of the settled position of law, has very categorically held that the prosecution could not show even a prima facie evidence against Aryan Khan and the other two co-accused for the offences of conspiracy under the NDPS Act," criminal & cyber laws practitioner Nishant Kumar Srivastava said.

"In fact it has, inter alia, observed in its order that, ‘....however this Court is required to be sensitive to the fact that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the Applicants. Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants’,” he said.

“The case of the prosecution was from the word go on a very weak footing. The Panchnama, the fact that no contraband substance was found from the possession of Aryan Khan, no trace of the same in his medical report etc. left the prosecution to build its case on the lines of constructive possession and or conspiracy angle, which has rightly been brushed aside by the court,” Srivastava said.

“In fact, the observations made by the court while allowing the application of Aryan Khan, have virtually negated the very plank of the prosecution case and I feel that the accused persons are going to take benefit of the same, once the chargesheet is filed and the case proceeds to trial,” he added.

“The lawyers of Aryan Khan and other two co-accused may very convincingly argue for their discharge at the stage of arguments on charge under Sections 227 and 239 of CrPC,” he said.

Advocate-on-Record (AOR) in Supreme Court Mahesh Thakur had a similar opinion. “The Bombay HC’s observations in the bail order have effectively demolished the NCB’s charge of conspiracy against Aryan Khan, besides holding that no drugs were recovered from him. A small quantity of drugs for consumption might have been recovered from the co-accused but not from him. It also doesn’t make any difference that NCB claimed to have cumulatively seized an intermediate quantity of drugs from various accused during the raid in question. Nothing was recovered from him”, he said.

“The bail order shows that there was no case against Aryan Khan. The HC appreciated the NCB’s evidence against Aryan Khan, but it found that the conspiracy theory was lacking in material particulars. If the same evidence is brought in the chargesheet, there is actually no case against him at all, as I said,” he added.

Asked if Khan could seek discharge when the trial against him commences, he said, “The NCB is yet to file a chargesheet against Aryan Khan in the trial court, pending investigation. It could, theoretically, bring more evidence against him to buttress its charges against him. But if the nature and quality of evidence remains the same, the charges will certainly not stick. He can also certainly seek discharge,” Thakur said.

Khan was taken into custody by the Narcotics Control Bureau (NCB) on October 2, 2021 after the NCB raided a cruise ship en route to Goa from Mumbai. He was arrested from the terminal to the cruise.

NCB alleged that it has seized 13 grams of cocaine, 5 grams of mephedrone MD, 21 gram charas and 22 pills of MDMA ecstasy.