The Bombay high court on Wednesday resumed the hearing on the bail application of Bollywood actor Shah Rukh Khan's son, Aryan Khan, in connection to his alleged involvement in a cruise ship drugs case.
Arguing before the high court, senior advocates called the custodial detention of Aryan Khan, Arbaaz Seth Merchant and Munmum Dhamecha a “direct infringement of constitutional guarantees” while assuring that the trio would cooperate with the investigating agencies if they were granted bail in the case.
A single bench of Justice Nitin Sambre was hearing the applications for bail plea of Aryan Khan and his friend Arbaaz Seth Merchant, after the court adjourned the hearing on Tuesday evening.
Aryan Khan was being represented by India's former attorney general Mukul Rohatgi and celebrated lawyer Satish Maneshinde among a battery of advocates, including partners of law firms Karanjawala & Co and Desai Desai Carrimjee & Mulla, while senior advocate Amit Desai represented Arbaaz Merchant.
Meanwhile, additional solicitor general Anil Singh and advocate Advait Sethna argued on behalf of the prosecution.
{{/usCountry}}Meanwhile, additional solicitor general Anil Singh and advocate Advait Sethna argued on behalf of the prosecution.
{{/usCountry}}Aryan Khan is in jail along with Arbaaz Seth Merchant and model Munmun Dhamecha since October 7, following the Narcotics Control Bureau's (NCB) raid on a Goa-bound cruise off Mumbai’s coast on October 2.
Beginning the argument on Wednesday afternoon, advocate Amit Desai said Arbaaz Merchant and the other youths were charged only with possession and consumption of small quantities of charas.
“The trio — Aryan Khan, Arbaaz Merchant and Munmun Dhamecha — had come only for the purpose of consumption. There was no conspiracy,” Desai said, adding, “Even those who apprehended them, treated them as coming there individually. Punishment for which is one year.”
The advocate argued before the court that instead of arresting the trio for what the NCB officials claimed was an “individual act” they should have instead given notice under 41A of the CrPC (notice of appearance before police office) and asked them to join the investigation.
Invoking the 2014 judgement in Arnesh Kumar vs State of Bihar case, Desai submitted before the court that “arrest itself was illegal", stressing that “in minor offences arrest is an exception.”
“The judgement of Arnesh Kumar is a dictum in these kinds of matters. There is a change in rule for minor offences, rules are no arrest and arrest only under the exception,” Desai told the court.
“Bail is the rule and jail is the exception. Now it has become ‘arrest is the rule and bail is the exception’”, Desai said.
Stressing that the NCB didn't serve the trio any notice under Section 41A of the CrPC, the advocate argued that they should be released on bail.
“First remand application does not talk about conspiracy. So the court, at the time of the first remand, was misled into believing that they were also charged under sections 28 and 29 of NDPS Act,” Desai said.
“The magistrate's court was told later eight people were arrested for conspiracy though it was not what had happened. Because of these issues, we are in custody for the past 22 days. Till today there is no arrest for conspiracy and conspiracy is a separate offence,” he added.
Desai further told the court that the trio is not accused of 'use' as defined under the NDPS Act as per the arrest memo. “No allegation in the arrest memo of 'use'. So there was a clear understanding that this was a case of nothing more than personal consumption,” he said.
“If there was an intention to consume then Section 27 of the NDPS Act does not apply. We have been arrested for an offence that was not committed. Consumption is a verb that has not happened and, hence, even Section 27 of the NDPS Act should have not been applied.”
“The special NDPS court rejected our application because of conspiracy. The WhatsApp chats don't support the conspiracy theory whatsoever," the lawyer said.
A special NDPS court rejected the bail plea of Aryan Khan on October 20 and extended his judicial custody till October 30. The special court ruled that certain WhatsApp chats showed Aryan Khan's “involvement in illegal drugs activities" and his “nexus with peddlers and suppliers of banned drugs”.
Reading a 2001 judgement of the Bombay high court, which observed that “meeting of minds is necessary to prove conspiracy,” Desai said, “Three people individually going on a vessel and deciding to consume is not a conspiracy.”
Pointing out that a special NDPS court on Tuesday granted bail to two people in the same case, the advocate said “2.4gm of ganja was found from one of them.”
He also said that the Whastapp chats don't support the “conspiracy theory” as claimed by the NCB. “What is abundantly clear is that there are no WhatsApp chats that connect conspiracy to the rave party…past events are connected asking for custody. Nobody stops investigation after bail. There are circumstances that show there is no conspiracy at all. But what is the need of custody when punishment is just one year."
Desai assured the court that the investigation won't be stopped if bail is granted.
Arguing before the court in Aryan Khan's plea next, Mukul Rohatgi said the arrest memo “did not give true and correct grounds for arrest”, as referred to Section 50 of the CrPC.
“Article 22 of the Constitution is more important than Section 50 of the CrPC. It states that no person should be held without being informed about the grounds of arrest and the person shall have the right to consult a lawyer of his choice,” the former attorney general contended.
Article 22 of the Constitution states that no person should be held without being informed about the grounds of arrest and the person shall have the right to consult a lawyer of their choice.
Rohatgi further argued that the remand application was misleading and indicates that “large quantities mentioned in that were recovered from Aryan Khan.”
Advocate Ali Kashif Khan, who appeared on behalf of Munmun Dhamecha, told the court that the 28-year-old model was invited on the cruise ship in lieu of payment. The advocate said Dhamecha was in the room along with one Somiya Singh and Baldev when the NCB came for the alleged search. No drugs were found on Dhamecha during the search.
“The case is against Somiya Singh, not me. The rolling paper used to smoke was recovered from Somiya. It's in their own document,” the advocate informed the court, adding that the other two were allowed to go.
“I am made a scapegoat as I was on the cruise… If I am arrested as suspect then all 1,300 people on a cruise should have been arrested,” the advocate argued on behalf of Dhamecha.
The NCB argued before the special NDPS court last week that Aryan Khan was in “conscious possession” of illegal drugs as the agency found at least 6 grams of charas from Arbaaz Merchant, who allegedly admitted to the investigators that they intended to use it for “consumption and enjoyment.”
During the hearing on Aryan Khan's bail plea on Tuesday, the 23-year-old star-kid's lawyers told the high court that he should be given bail because no drugs were recovered from him. They also said that WhatsApp conversations used by the NCB were not related to the cruise from where Aryan Khan was arrested three weeks ago.