NDPS Act provisions invoked against Shah Rukh Khan’s son Aryan entail 10 year jail, but will charges stick?

A Mumbai court on Monday sent Aryan Khan (23), son of Bollywood superstar Shah Rukh Khan, to the custody of the Narcotics Control Bureau (NCB) till October 7, a day after he and seven others were arrested from a cruise ship off the coast of Mumbai while allegedly participating in a ‘rave party’.

NCB had sought his custody till October 11, arguing, "Unless we investigate the consumer how do we know who is the supplier, who is financing it?" It contended that an international cartel is apparently involved in the case.

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 has been 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.

The rigour of the NDPS Act varies greatly based on the quantity of the contraband seized. As per the arrest memo, 13 grams of cocaine, 5 grams of MD, 21 gram charas and 22 pills of MDMA have been seized.

Section 8(c) provides that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-state, export inter-state, import into India, export from India or tranship any narcotic drug or psychotropic substance.

Section 20(b) lays down punishment for contravention in relation to cannabis.

It states that whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under, produces, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter-state or uses cannabis, shall be punishable:

(a) For small quantity - with rigorous imprisonment for a term which may extend to [one year], or with fine which may extend to Rs 10,000 or with both;

(b) For quantity lesser than commercial quantity but greater than small quantity - with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to Rs 1 lakh;

(c) For commercial quantity, with rigorous imprisonment for a term not less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than Rs 1 lakh but which may extend to Rs 2 lakh:

Section 27 provides for punishment for consumption of any narcotic drug or psychotropic substance. It says that whoever consumes any narcotic drug or psychotropic substance shall be punishable:

(a) Where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and

(b) Where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both.

The punishment under Section 20 would vary greatly depending on the quantity of contraband recovered. According to legal experts, the quantities specified in the arrest memo could vary from small to intermediate. While the quantity of charas would be considered as 'small quantity,' that of the cocaine recovered would be considered ‘intermediate’.

Speaking to National Herald, advocate Nishant Kumar Srivastava, said, “If the prosecution is firstly able to prove the possession from Aryan Khan, or that he has consumed or purchased or transported such narcotic drug or psychotropic substance and thereafter is able to show that the quantity was a lesser than commercial quality but more than small quantity, then only the prosecution will be able to get a conviction of the accused upto 10 years with fine of Rs 1 lakh.”

“From the available information, it seems that the prosecution has not recovered anything from the possession of the accused and the WhatsApp chat, if any, is not at all any proof for the prosecution to rely on for either the extended custody or final conviction,” he pointed out, adding, “Aryan Khan is bound to get bail once the remand is over”.

Incidentally, the NCB raid was carried out under the supervision of Sameer Wankhede, an IRS (Customs) officer of 2008 batch, who is serving as NCB’s Mumbai Zonal Director on deputation.

Wankhede had also probed actress Rhea Chakraborty’s drugs conspiracy link in connection with actor Sushant Singh Rajput’s death.

Interestingly, Wankhede also has a special Bollywood connection, being married to popular Marathi actress Kranti Redkar.

While serving in the Customs Department, he reportedly did not give custom clearance to many celebrities until they disclosed the goods bought in foreign currency and paid tax on it, and booked over 2,000 celebrities for not paying taxes.

In 2013, Wankhede caught singer Mika Singh at the Mumbai airport with foreign currency. He has also raided properties owned by many Bollywood celebs, including Anurag Kashyap, Vivek Oberoi and Ram Gopal Varma.

As per a report carried by The Economic Times, Wankhede, has, however, denied any vendetta against celebrities. “There have been multiple instances where it has been said that we target Bollywood, but let’s not talk about opinions, let’s talk about facts and more importantly, statistics. In the last year, we have booked a total of 105 cases in 10 months. That’s an average of 10-12 cases every month. Now you tell me, out of those 105 cases, how many are celebrities? I’ll tell, a handful of them at best. This year alone, we’ve made more than 310 arrests. How many of those are celebrities? Everyone would know, because that’s the only thing that is talked about,” he was quoted as saying.

However, there is speculation that the NCB raid was carried out after a tip-off about Aryan Khan's presence on the cruise ship and that Shah Rukh Khan isn't in the good books of the powers that be due to his reported proximity to Mamata Banerjee as well as Shiv Sena.

Speaking to a news agency about the raid on the cruise ship, officiating Director General of NCB, SN Pradhan, said, "We had an exclusive information which needed to be verified and hence we entered the ship in disguise. After verifying the information, we conducted the raid and detained eight people. We are finding more information about the source of drugs. The whole case will have different layers and this is just the first layer. In coming days, more people could be detained and arrested."

Incidentally, the NCB, which functions as the apex national body on drugs and narcotics issues, had its last regular DG in IPS officer and current Odisha DGP Abhay, who left the post on July 4, 2019.

Its additional charge was then given to Rakesh Asthana while he was serving as Director, BCAS and later as DG, BSF. When Asthana was appointed as Commissioner of Police, Delhi, in July this year after the Centre extended his service tenure four days before his slated superannuation and granted him an inter-cadre deputation – a move which attracted an ongoing judicial challenge – Pradhan, who is serving as Director General, National Disaster Response Force (NDRF), was given the additional charge of DG, NCB.

An order issued by the Union Home Ministry on July 28, 2021 said Pradhan "shall hold additional charge of the post of DG, NCB vice Shri Asthana (Rakesh) with immediate effect for a period of three months or till the appointment and joining of a regular incumbent or until further orders, whichever is earlier."

This period of three months will expire this month.

Famed for being instrumental in the police reforms judgment given by the Supreme Court, former IPS officer Prakash Singh, while talking to National Herald in July immediately after Rakesh Asthana was appointed as Delhi Police chief, had deprecated the system of ‘additional charges’ prevalent in apex police organisations, saying it was 'avoidable'.

“This should happen only if there's a grave emergency, for example if an incumbent DG is incapacitated by a heart attack or is involved in a accident or passes away. But when everything can be foreseen, then it should be planned. This additional charge business is certainly not a healthy thing," he had said.

Reached for comments, a retired senior IPS officer of Punjab cadre, speaking on the condition of anonymity, said, “It’s highly surprising as well as curious that NCB has been without a full time DG for the last two years. Historically, the NCB has been a pretty low-profile and little-known agency with a limited role and not really considered as an attractive posting by serving senior IPS officers. Drug busts and seizures have generally been in the domain of state police forces, with NCB having very little role to play”.

“It was only after Rakesh Asthana took over its additional charge that it hit the headlines after going after celebrities. While Bollywood actors do, of course, lead luxurious and exciting lives compared to the general population, and drugs do get used in rave parties etc, I feel that the government of the day used the NCB to target them to send a chilling signal to the industry, which can influence the populace with its views and opinions, to toe its line...,” he said.

“But they certainly need to appoint a full time chief as an officer serving in another substantive role can hardly be expected to devote time to two organisations at the same time. Moreover, no major decisions are supposed to be taken by such an officer. Also, interestingly, in June this year, the govt upgraded the NCB DG’s post from the pay matrix level-15 (Additional DG rank in the IPS) to the apex level of 16/17 (DG or DG equivalent rank in the IPS). There’s no dearth of officers from either ranks, but it is a political decision at the end of the day,” he said.