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Aryan Khan Case: Bombay High Court Releases Order With Bail Conditions

 

It comes as no surprise to me that Aryan Khan finally gets bail from Bombay High Court in the case titled Aryan Shah Rukh Khan V/s The Union Of India & Anr in Criminal Bail Application No. 3624 of 2021 along with others. His case was an open and shut case. But this is not to deny the due credit which the legal team so richly deserves led by most brilliant, learned and dynamic lawyers led by former Attorney General of India – Mukul Rohatgi known world over for his legal prowess and so also another most distinguished lawyer – Satish Maneshinde who with the strength of their logical, learned and robust arguments were able to successfully establish that Aryan Khan was wrongly denied bail and he deserved the same. Aryan was thus granted bail after 25 days in custody.

Before going into the details, it would be apt to first and foremost reveal that Aryan Khan who is grabbing news headlines all over be it in newspapers, magazines, news channels etc, is born on November 13, 1997 and is the eldest child of Bollywood actor Shah Rukh Khan and interior designer Gauri Khan. It deserves mentioning here that Aryan Khan holds  a Bachelor’s degree in Fine Arts, Cinematic Arts and Television Production from the School of Cinematic Arts at the University of Southern California in the United States. He did his schooling in the United Kingdom and Mumbai. He has two siblings – sister Suhana and brother AbRam.

Truth be told, on October 2, Aryan Khan left his home in Mumbai’s Bandra to attend a party on board Cordelia Cruises’ Empress ship. A two-day ‘musical voyage’ had been organized by a Delhi-based events company. It would be pertinent  to mention that on receiving a tip-off, a team of the Narcotics Control Bureau’s Mumbai unit, led by Zonal Director – Sameer Wankhede, boarded the ship disguised as passengers. What next ensued was that on board the ship, NCB officials began a search and the same night, it was reported that the NCB had seized various illegal drugs like cocaine, charas and MDMA from the ship and detained about 7 to 8 people and which included Bollywood star Shah Rukh’s son Aryan Khan!

It must be mentioned that a total of 20 people, including two Nigerian nationals, have been arrested so far in the case related to the seizure of drugs following a raid at a party on the Cordelia cruise ship off the Mumbai coast on October 2, 2021! It also must be noted that Aryan Khan was formally placed under arrest by NCB at around 2 pm on October 3 that is a day after the raid. Apart from Aryan we see that two others – Munmun Dhamecha and Aryan’s friend Arbaaz Merchant – were also arrested by the NCB. According to the arrest memo, Aryan Khan was placed under arrest for “involvement in consumption, sale and purchase” of contraband. The NCB had claimed to have seized 13 grams of cocaine, 5 grams of MD, 21 grams of charas, 22 pills of MDMA (ecstasy) and Rs 1.33 lakh in cash during the raid on Cordelia Cruises ship.

Charges Against Aryan Khan

To put things in perspective, Aryan Khan was charged under four Sections of the NDPS Act. These charges under four Sections of the NDPS Act are as follows: –

1.  Section 8(c) – This Section prohibits the production, manufacturing, possession, selling, purchase, transport, warehouse, use, consumption, inter-state import and export, import to and from India, or transship of any narcotic drug or psychotropic substance, except for medical or scientific purposes.

2.  Section 20(b) – Under this Section, possession, cultivation, manufacture, sale, transport, and use of cannabis are punishable offences.

·         If the accused is in possession of a ‘small quantity’, imprisonment involves a term which may extend to six months.

· If the quantity is less than ‘commercial’ but greater than ‘small’, the imprisonment may extend to ten years.

· If the quantity involved is ‘commercial’, imprisonment shall not be less than ten years but may extend to twenty years.

3.  Section 27 – Under Section 27, the consumption of any narcotic drug or psychotropic substance is a punishable offence.

4.  Section 35 – This Section presumes that the accused knew what they were doing. Hence, the accused will be treated guilty unless proven innocent.

Let us have a quick look at the relevant developments which took place in the Court in this high profile case. They are as follows: –

October 2, 2021: NCB raid cruise ship Cordelia on way from Mumbai to Goa and seized 13 gm Cocaine, 5 gm Mephedrone, 21 gm Charas and 22 pills of MDMA or Ecstasy and registered a case.

 

October 3: Aryan Khan is arrested around 2 pm along with seven others which includes Arbaaz Merchant, Munmun Dhamecha, Nupur Satija, Ishmeet Chadha, Mohak Jaiswal, Gomit Chopra, Vikrant Chokkar and a drug supplier from suburban Juhu in connection with a drug raid conducted by the NCB in a cruise ship off the city coast on charges of consumption, sale and purchase of narcotic drugs after an alleged rave party was busted aboard a luxury cruise liner.

October 4: During one of the first hearings in the Aryan Khan case, the NCB sought an extension of the star kid’s police custody till October 11. But the court granted NCB custody of Aryan Khan and the others only till October 7.

October 7: The NCB again sought custody of Aryan which Mumbai’s Magistrate Court rejects.

October 8: The Metropolitan Magistrate’s court rejected the bail application filed by Aryan Khan, his friend Arbaaz Merchant and anchor-model Munmun Dhamecha stating they were not maintainable before it.

October 11: The court refused the demand of NCB and instead Aryan was sent to 14-day judicial custody. Aryan was then shifted to Mumbai’s Arthur Road Jail the next day. He was being held at the NCB office till then.

October 13: The court adjourned the hearing for the next day after hearing arguments from both the sides.

October 14: The special NDPS Court Judge reserved his order on Aryan Khan’s bail application. As the courts were shut for the weekend and other holidays, the next hearing was scheduled for October 20 and Aryan had to stay in jail till then.

October 20: In the afternoon, the Special NDPS Court Judge VV Patil rejected Aryan Khan’s bail application along with Arbaaz Merchant and Munmun Dhamecha. In the 21-page order, the Judge VV Patil mentioned that, “Material on record shows “prima facie involvement of accused nos. 1 to 3 (Aryan Khan, Arbaaz Merchant and Munmun Dhamecha) in a grave and serious offences”… “this is not a fit case for granting bail.” The order also says that considering the evidence on record, it cannot be said that they have not committed the alleged offence and if granted bail are unlikely to commit them again.

October 21: The Bombay High Court Bench of Justice NW Sambre said clearly that the bail plea of Aryan Khan will be heard next Tuesday. This clearly means that on October 26, 2021 the bail plea of Aryan Khan will be heard along with co-accused Munmun Dhamecha!

October 26: Bombay High Court started hearing bail plea.

October 28: Mukul Rohatgi made final submissions and court granted them bail. But Aryan and others to stay in jail for tonight.

October 29: Aryan Khan finally gets bail as the detailed order comes out with reasons. Aryan would be able to walk out of jail if the ‘release order’ document reaches the prison’s ‘bail box’ by 5:30 pm today. If it reaches after that then tomorrow he will come out.

While delivering stinging punches on the questionable way in which Aryan Khan was arrested and has been kept in jail for so many days, none other than the former Attorney General of India (AGI) and eminent Supreme Court senior lawyer Mukul Rohatgi has said very clearly, cogently, composedly, categorically and most convincingly that the Narcotics Control Bureau (NCB) is like “an Ostrich with its head buried in the sand”, while the poor rich boy Aryan Khan is “paying the price of being a celeb”. It must be also noted that Mukul Rohatgi said in no uncertain terms that the law clearly states that “bail is the norm, jail is an exception” and the issue was settled many years ago by the Supreme Court, since the most established tenet of the Constitution is the ‘Right to Life’ ‘Right to Liberty’, not only for Indians, but also foreigners in India. If they want to give him (Khan) bail, it can be done right away, even on public holidays, he unequivocally declared on a private news channel as others were all attentive ears. How can what all Rohatgi has argued be dismissed lightly or taken casually by anyone?

It merits mentioning here that Rohatgi also very rightly, robustly and rationally asserted that, “It’s incredible that someone remains inside (jail) for so many days without seizure of drugs or any other proof. No medical examination, so no consumption. How can he be held in custody when the maximum sentence would be one year, assuming he was found with drugs.” This is exactly what went in favour of Aryan Khan and we see that ultimately he gets bail.

What’s more, Rohatgi also trashed the NCB’s dark theories of “international conspiracy” wondering who will believe that he (Khan) is a peddler or needed money so was doing it for money, plus he was not even a passenger on the cruise ship but a mere invitee, may be impromptu at the last minute. It would be instructive to mention here that Rohatgi said in no uncertain terms that, “WhatsApp chats are not evidence unless due procedures of law are followed… Confessions of an accused are not admissible as evidence without proper safeguards…In this case, (Khan) is clearly paying the price of being a celeb.” He also dismissively said that such ‘run of the mill cases’ come up by dozens daily and nobody even bothers about them, but because here a personality like Aryan Khan was involved the NCB is unwilling to listen to reason. We need to also pay attention here that Rohatgi’s censure of the NCB came even as Khan and the other (male) co-accused, were dumped from a quarantine cell to a general cell, in the august company of other hardcore criminals in the Arthur Road Central Jail (ARCJ), which once housed the Pakistani terrorist Ajmal Kasab.

Rohatgi very rightly argued that Aryan Khan’s arrest was made in sheer violation of Article 22 of the Constitution in as much as he was not informed about the correct grounds for arrest. It is obligatory under Article 22 of the Constitution to inform the person who is arrested about the grounds of his/her arrest which was not done in this high profile case!

Finally, pulling the NCB’s ears, Rohatgi said given the changed values in modern times, instead of harassing youngsters, the NCB should go after and nab those who are enticing the youth by supplying such ‘poisons’ (drugs) whether in Punjab or Mumbai or anywhere in the country. What wrong is Rohatgi saying? He is absolutely right. The point that he is trying to drive home carries a lot of force which we all need to acknowledge and admire!

Another eminent and senior lawyer –  Satish Maneshinde who too is Aryan Khan’s advocate argued that his client was invited to the event being held on the cruise by the organizer. PTI quoted him as saying that, “No incriminating material has been recovered from him (Aryan Khan). There is no possession or evidence of consumption.” Why then is he in jail for such a long time? This is the real rub!

Another senior and eminent advocate Amit Desai argued that the NCB was dumping the charge of illicit international drug trafficking on Aryan Khan ‘casually’. Desai argued in the Special Court during the hearing of his bail plea in the Mumbai cruise drug bust case that no drugs were recovered from Aryan Khan and he is not involved in the sale or purchase of any illegal substances. He also said ‘they’ had learnt their lesson, arguing that in many countries these substances had been legalized, and that the accused should not be treated this way.

Be it noted, another eminent and senior lawyer of Apex Court as also Bombay High Court – Majeed Memon while giving his own independent view said that, “The accused is alleged to be a member in the rave party from where some contraband was found in violation to provisions of NDPS Act. It appears that the quantity allegedly attributed to him for personal consumption is small quantity and not commercial quantity and therefore the offence will be bailable.” What Menon has suggested has to be appreciated and accepted. There is no valid reason to differ with what he has said!

Furthermore, it is also worth noting that Memon said candidly that, “He should get bail unless refusal is maintained. There does not appear to be any substance in allegations against him save and except his presence near the party venue and consumption of contraband under the NDPS Act. Refusal of bail after 17 days in custody in my view would result in undeserved hardship and punishment to the accused.”

While further speaking about the arguments on Whatsapp chats recovered from Aryan and Arbaaz Merchant’s phones, Majeed Memon minced no words to pooh-pooh NCB’s allegations and stated quite forthrightly that, “Chat conversation as alleged does not aggravate the situation as it has no corroborative or substantive support. The apprehension of the prosecution that he is from an influential family and thus may tamper evidence is also a bald allegation without merit.” Memon also strongly feels that Aryan Khan is being targeted because of his celebrity status.

For esteemed readers exclusive knowledge, we must go through the five arguments that eminent and senior lawyer Amit Desai put forward for Aryan’s bail. These arguments are as follows: –

1. The chat messages which they (NCB) tried to suggest is evidence, is an extra-judicial confession which is a weak form of evidence. And the chats have no section 65B certificate.

2.  The accused can be granted bail without affecting the investigation, when someone is in the stage of reform, he should be given a chance.

3.  Talking about mobile phones, Amit Desai said that there is a statement that it was voluntarily handed over. However, the panchnama says it was ‘seized and not handed over’. There has to be a seizure memo.

4.  Two important statements (Aryan-Arbaaz) were recorded on 3rd October, Aryan was sent to judicial custody on 7th October. While sending him to judicial custody, the Magistrate said that the accused was not interrogated after the 3rd. The Magistrate was clear that Aryan was sent to judicial custody despite having NCB custody.

5.  The entire case of NCB is on the commercial quantity of drugs and conspiracy. Aryan being the consumer in this case is at the bottom. Instead of reforming Aryan, you are connecting him to accused Abdul. And Abdul is the one from whom commercial quantity is found. This is far too stretched out. If this goes on for long then what will happen to reformative law?

Absolutely right! Point well taken! We also cannot be oblivious to what late Justice VR Krishna Iyer who is one of the most eminent Indian jurist and also a former Supreme Court Judge once said quite uprightly that, “I believe in Operation Valmiki. Every saint has a past and every sinner has a future.” It also cannot be glossed over that Justice VR Krishna Iyer very strongly believed that, “Bail is the rule and jail is the exception.” How lamentable that now a days most senior and eminent lawyers are compelled to say in news channels that, “Now jail has become the rule and bail has become the exception.” Aryan’s young age also has to be taken into account.

As the jury is still out and the Bombay High Court is yet to decide this high profile case on merits, we have to keep our fingers crossed till then! Which way the dice may roll is quite unpredictable! Let’s wait and watch! But yes, one thing we have to concede: Aryan Khan has definitely got the first big relief as he gets bail from Bombay High Court even though some strict conditions have been attached which have to be complied like not leaving the country without permission of the Court and surrendering their passport to the special court immediately and if not complied can lead to cancellation of bail! All kudos to his most competent legal team led by former Attorney General – Mukul Rohatgi among others!

 

Sanjeev Sirohi

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