Will charges against Aryan Khan stand in court at trial stage?

Even as allegations, debates, arguments and hashtags rage on around the arrest of Aryan Khan, son of superstar Shah Rukh Khan, in connection with an alleged drugs case, experts are wondering whether the controversies surrounding the case will hamper it at the trial stage.

Aryan (23) was arrested in the early hours of October 3 and spent a full 25 days behind bars before being granted bail by the Bombay High Court on October 28. In its order, which was made public this week, the HC had observed that there was nothing objectionable in his WhatsApp chats, which was alleged to be the sole piece of evidence against him. No drugs were recovered directly from his person and the HC also stated in its order that there was nothing in the investigation so far to suggest a conspiracy between him and his co-accused, Arbaaz Merchant and Munmun Dhamecha.

Ever since his arrest, Nationalist Congress Party leader and Cabinet Minister Nawab Malik has made a series of explosive allegations against the NCB, its case against Aryan and its Mumbai Zonal Director Sameer Wankhede.

The first of these allegations were regarding Manish Bhanushali and Kiran Gosavi, both of whom were seen escorting Aryan and the other accused to the NCB office on the day of the raid. Bhanushali has been revealed to be a member of the Bharatiya Janaya Party, while Gosavi is wanted in several criminal cases in Mumbai, Navi Mumbai and Thane.

The NCB, in turn, issued clarifications saying that both Bhanushali and Gosavi had appeared as independent witnesses in the case. Bhanushali, on the other hand, told the media that it was information provided by him that led to the raid.

Legal experts say that these allegations will have a very adverse effect on the case at trial stage, as they are very damaging in more than one way.

“The Code of Criminal Procedure (CrPC) lays down clear guidelines as to what kind of panch witness should be used, and the law also states that the identity of the witnesses as well as informants should not be disclosed. By revealing that Bhanushali and Gosavi were panch witnesses, the NCB has damaged its own case, as well as endangered their safety. The NCB could have revealed this information at trial stage. Plus, the criminal cases against Gosavi have affected his credibility as a witness. All of this will definitely have an adverse effect on the case at trial stage,” advocate Nitin Satpute said.

Serving officers with the Mumbai Anti Narcotics Cell added that the NDPS Act is very stringent and attaches a great deal of importance to procedure.

“The Act is so strict that we don’t even release pictures of the seized drugs in our cases to the news media, as defence lawyers can establish at trial stage that the chain of evidence was damaged in releasing the pictures. With such strict rules under the Act, so many revelations regarding the witnesses within the first few days of the investigation are completely undesirable from a conviction point of view,” a senior officer said.

Satpute said that the NCB’s case has been further damaged by the revelations made by Prabhakar Sail, another panch witness in the case who was Gosavi’s personal bodyguard. In an affidavit drafted earlier this week, Sail has claimed that he was made to sign on several blank sheets of paper, and that he overheard a conspiracy to take bribes amounting to crores of rupees from Shah Rukh Khan’s manager Pooja Dadlani.

Retired Assistant Commissioner of Police (ACP) Rajaram Mandge, who has worked with the Mumbai ANC while in service, had a more conservative opinion when it comes to Sail’s claims.

“Sail can only be declared as a hostile witness if he makes these same statements in front of a judge in a court of law. Simply saying all these things to the media will not affect the NCB’s case; he has to say them under oath. Once he is declared hostile the Public Prosecutor has the right to cross examine him. Even after all this, it is the judge’s prerogative whether to believe the claims made by him, based on merits,”Mandge said.

Regarding Bhanushali and Gosavi, Mandge said that it depends on what panchnamas they had signed.

“They have the most value as witnesses if they appeared as panchas for the recovery of the seized drugs. If this is the case, the controversies surrounding them might have an adverse effect on the case,” he said.

Advocate Iqbal Sheikh, who also retired as ACP, Mumbai Police concurred with Mandge regarding the seizure panchnama.

“In a drugs case, the seizure panchnama and the expert opinion of forensic experts about the seized drugs form the basis of the conviction. If the credibility of the panch witnesses is affected, it means that the seizure panchnama itself has suffered in terms of credibility. I believe the ongoing controversies will absolutely affect the case negatively once it reaches trial,” Sheikh said.