‘NCB wants to make this an extraordinary case...’: Top defense lawyer on Aryan Khan case
As actor Shahrukh Khan’s son Aryan Khan heads to the High Court for bail, we spoke to one of India’s best criminal defense lawyers, Rebecca John, about the intricacies of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Khan was arrested during the Narcotics bureau’s raid on a cruise ship party on October 3, along with several others. Here are the excerpts from the interview.
Q: We’ve seen that Aryan Khan has been in custody for 20 days. Although, he wasn’t really caught in possession of any drugs. Now, is this unusual or under the NDPS Act this is expected?
A: Ordinarily, I would say that bail should have been granted at the very first instance because Aryan Khan, as per media reports, was not found in possession of any drugs. At the most, it could be said that one or two persons accompanying him had some small quantity in their possession and that was not a sufficient ground to deny him bail. The NCB wants to make this into an extraordinary case. That is the reason why, despite the fact that this young man had no drugs in his possession, there is no evidence to suggest that he was consuming drugs at the time of his arrest and there doesn’t seem to be any apparent nexus of a larger kind from the facts and circumstances which are available in the public domain, bail should have been granted to him as a matter of right. Its denial, therefore, is a matter of concern because India’s criminal jurisprudence says that “bail is the rule, jail is the exception”. So even within a strict liability law like the Narcotic Drugs and Psychotropic Substances Act, where there are stringent provisions for bail for certain offences, in small quantity offences, there is never any jail term in the first instance unless, of course, you are convicted. So to that extent, this case has thrown up a lot of legal issues and as practitioners, we are concerned about some of the violations that are taking place.
Q: Can you please explain to us in general terms what does the term conscious possession mean?
A: Conscious possession has not been defined under the NDPS Act and maybe that is the reason why there is a little difficulty in grappling with what this term means but it has been the subject matter of several decisions of the Supreme Court and several High Courts as well. But it comes into play largely when large commercial quantities are recovered.
For example, if you’re travelling in a car and a recovery is made from three of the occupants, which recovery will quantify as a commercial quantity? The driver is well within his rights to say, “look, I was just driving them, I didn’t have any idea that they were carrying drugs or something illegal was happening,” then it is for the court to determine whether the driver knew the facts and circumstances of the case and that the other three occupants of the car had large quantities of drugs on them. This is called conscious possession.
On many occasions, courts turn down the plea of the prosecution and say that from the facts and circumstances of the case, we are not able to determine the conscious possession of an individual from whom nothing was recovered. At the same time, there have been cases where the Supreme Court has said that from the facts and circumstances of the case, they can determine that although the driver of the car or whoever else did not have anything on him, there is enough conscious possession, enough to connect him with the term conscious possession. So, this really depends on the individual facts and circumstances of a case, whether there is evidence to suggest that person A knew that person B was carrying drugs, which he should not have carried. And if A knew it and A was party to, and by A I mean the accused, the fact that person B had the drugs in his possession, then the terminology is extended and the offence extends on the basis of conscious possession.
Q: There was no medical test done on Aryan Khan. Do you think that’s okay?
A: These are protocols that a prosecuting agency must follow. So, I will look at it as a very shoddy prosecution or a prosecution that was aware of the fact that he did not have drugs in his possession or was not consuming drugs.But either way, if the prosecution wants to establish that although we did not find drugs on this person, he had been consuming drugs just before we arrived, then it was for them to collect the evidence. So, the fact that they did not get a medical test done works against the prosecution.
Q: Anything else that stands out to you?
A: I don’t know whether that’s true or false, some of the persons who acted as a testing witness in this case were really not independent witnesses but stock witnesses of the NCB. They were given powers far in excess of what they should have been given, some of them were seen holding and handling these young men, a power which only the NCB should exercise. It was almost as though they were affecting the arrest, at least that is what the videos suggested, if the NCB has a better explanation for that then I’ll stand corrected. All of this makes it a little suspicious.
You see a prosecuting agency - it doesn’t really matter who the actors in this case are, it doesn’t matter who is the accused, it doesn’t matter whether the accused is the son of a famous actor - must conduct itself in a manner which is credible, trustworthy and with the highest degree of Integrity. Of course, an accused person has the right to say that this and that was not done, but a prosecuting agency must follow the law and if they are seen violating the law then I have a problem with it because it is the very bedrock of our criminal jurisprudence. The prosecution must always put forward its case in the most credible, trustworthy manner with legal evidence. So, it doesn’t matter what gossip columns may say about this case, at the end of the day you must have legal evidence to prosecute a person and that is not confined to the NDPS Act, that is applicable to any case or any person, rich or poor, famous or not famous. So, the least expectation that we, as citizens, have from the system is that the prosecuting agency is conducting itself in a manner that is credible and trustworthy. Once that is established, then they have every right to say in court that we will be able to prove the charge against the accused person but once serious doubts have been raised on the credibility of the prosecuting agency and it is for them to respond to these charges, then, of course, it becomes a problem.
So, this case stands out largely because something has been made out of a much smaller event. The way I look at it - these people were arrested with no drugs or very small quantities of drugs, which the act does not treat as serious, it is otherwise a very stringent act. It now appears that after effecting the arrest, you are making theories and coming up with largely unsubstantiated allegations.
Now, this is a problem I’ve had with the prosecuting agencies of late. You first have a story, immediately affect an arrest, and then go around looking for evidence to match the story that you have in your mind. I’m afraid that’s not how intelligent prosecutors must conduct themselves. You arrest only when there is sufficient material to justify the arrest. You can conduct a fishing and rowing inquiry after the arrest is effective, of saying, “oh we are looking into this we’re looking to that”, that was your job before you affect an arrest.
So particularly, since the young man did not have drugs in his possession, since they did not conduct any tests which would suggest that he consumed drugs, it was necessary for the prosecuting agency to wait and not press the button as fast as they did. They should have waited, some of what we are saying may be true. And if indeed there is a larger conspiracy, if indeed there is evidence to show that he was regularly peddling with drugs, then you should have collected verifiable material, placed it before a court and then simultaneously arrested the person. But you haven’t done any of that. You are still saying after 20 days you are investigating the various angles to this case, then what necessitated the arrest? This is what surprises me. I would not for a minute be critical if the reverse had been followed, where you collected the material and then justified your arrest. At the moment, you’re open to the charge that this is a witch hunt, you have no material with you and you’ve arrested the person who you should not have erased.
Q: And the fact that various politicians, for instance, the Nationalist Congress Party’s Nawab Malik, have weighed in, do you think that the politics of it all can influence a case?
A: I would ideally expect politicians to stay away from cases. I think this is part of the legal system and it’s really entirely between prosecuting agencies, defense counsels and the court and the minute it gets entangled with politics, you begin to see a very muddy picture and it can lead to the travesty of justice, it can lead to a situation where a person escapes the provisions of the law, where an innocent person is implicated. Either way, it is bad for the system. So typically, I would expect this to be free from politics. Unfortunately in India, everything now is connected with politics.
Transcribed by Amitoj Singh Kalsi