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| Aryan Khan walks out of court after being denied bail. |
The Bollywood star Shahrukh Khan's 23 year old son Aryan Khan and seven others including his friends Arbaaz Merchant, Munmun Dhamecha, Nupur Sarika, Ismeet Singh, Mohak Jaswal, Vikrant Chhoker and Gomit Chopra are facing charges under section 8(c) read with sections 20(b), 27, 28, 29 and 35 of the NDPS Act. They were detained by Narcotics Control Bureau (NCB) in Mumbai, while throwing a rave party on Cordelia Cruises' Empress ship bound to Goa, India's tourist paradise on last Saturday October 2nd. Aryan Khan got arrested over shocking incriminating material found on phone records of his WhatsApp chats with international drug peddlers. Since the sensational bust of the star son, the Indian media coverage has been over the top, and some have even begun to make unsubstantiated claims linking Bollywood to drugs cartels and international drug trafficking.
Raid had been conducted on an anonymous tip off the NCB, Mumabi officers had received. According to panchanama, NCB had allegedly recovered 13 grams of Cocaine, 5 grams of Mephedrone, 21 grams of charas, 22 pills of MDMA ecstasy and ₹1.33 lakh in cash. Under Indian law, Panchanama is a verified document prepared by the police listing out all the findings as witnessed by them. It is important to note that the quantities claimed to have recovered from Khan's possession are not commercial quantities, but fall into category of small quantities under the Act. However five of the other accused are alleged to have been in possession of intermediate quantities.
Brief introduction to the sections under which Aryan Khan is facing charges.
Aryan Khan and other co-accused are charged with offences under section 8(c) read with sections 20(b), 27, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985(NDPS). NDPS is the primary legislation governing India's legal framework relating to drugs and their trafficking.
According to section 8(c) of the Act, 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 transship any narcotic drug or psychotropic substance except for medical and scientific purposes.
Section 20(b) relates to penalties for offences relating to cannabis. Accordingly, any person found to have produced, manufactured, possessed, sold, purchased, transported, imported inter-State, exported inter-State or used cannabis in small quantities as otherwise provided in the Act shall be punishable with rigorous imprisonment for a term which may extend to one year, or with fine amounting to 10 000 rupees, or with both.
In terms of section 27, any person who consumes cocaine, morphine, diacetylmorphine or any other narcotic drug or any psychotropic substance shall be punishable with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to 20 000 rupees or with both.
Section 35 of the Act presumes a culpable mental state of the accused. Nevertheless, accused can take a defense by adducing evidence that he had no such culpable mental state with respect to the offence charged. Explanation to section 35 defines the term culpable mental state. It includes the intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. However for the purposes of section 35, a fact believed to be in existence must be one that is proved beyond reasonable doubt.
What was Prosecution's case?
Additional Solicitor General Anil Singh on behalf of NCB filed a remand application before the court of additional chief metropolitan Magistrate, Esplanade, Mumbai, seeking further NCB custody of the all the eight accused in the case till October 11. Aryan Khan has been named the first accused in the case. ASG submitted before the Magistrate R.M. Nerlikar WhatsApp chat history found on Aryan Khan's phone. When Magistrate asked what the prosecution wishes to prove by submission of Khan's WhatsApp chat history, ASG made clear that chat history found on Khan's phone shows regular contact he maintained with suspected characters, possibly linking him to international drug peddlers. And therefore keeping Khan under NCB police custody during the preliminary investigations would be of immense help to NCB in tracing the roots of the drugs supply chain and who's who is financing it. It was also noted by ASG that the investigations are of prime importance in this high profile case, as there are suspected characters whose identification should be established by Aryan Khan. Given the serious nature of the offences the accused is charged with, ASG emphasized that custodial interrogation of the accused is necessary.
What was Aryan Khan's defense?
Aryan Khan's lawyer Satish Manshinde objected to placing his client back into NCB's custody. He denied all accusations levelled against Khan and maintained Khan's innocence as there was no evidence indicating his possession of any contraband or consumption of any drugs. It was also shown that nowhere in the allegations made by prosecution, Khan's role in the commission of the offence is explained. He prayed for the court to take him into judicial custody instead of police custody and then enlarge him on bail. All throughout the remand hearing, Khan maintained that he was only a special invitee on the cruise ship and therefore NCB cannot rely on mere Whatsapp chat history on his phone to object to bail and thereby extend the period of police custody.
Despite Khan is charged with offences under NDPS Act, the prosecution did not specify which of the specified charges were against him, and whether he was found to have consumed or possessed any drugs. Khan and other accused appear to have been charged with sale, purchase, and attempt to commit an offence punishable under the sections of the NDPS Act set out above Khan's lawyer by relying on Stefan Mueller v The State of Maharashtra, argued that there seems to be no legal impediment under the Act in granting bail to his client. The judgement in Steffan Mueller held that offences involving small quantities of contraband are bailable. It was argued that Section 37 of NDPS Act makes only offences set out in sections 19, 24 and 27A of the Act non-bailable, and since neither of the accused including Khan are charged under any of the above three sections, the court does not have to examine whether there are reasonable grounds before granting bail. The defense therefore contended that bail in this case had to considered as in any other case of bailable offence.
Why was Khan denied bail?
Considering the circumstances of the case, the Magistrate in his remand order refused to grant bail to Khan. In his view, the fact that investigations are still at preliminary stages is a prime consideration in deciding the question whether remand should be extended. It was pointed out that keeping the accused in NCB's custody will be helpful to the prosecution in its investigation process, and the outcome of the investigations will also be useful to the accused as well in proving their innocence. The reason for the Magistrate's order was that some of the accused have been charged with possessing 'intermediate quantities' of banned substances and therefore it requires a detailed investigation. Suspicious links as suggested by WhatsApp chats should also be investigated and corroborated. For that purpose all the accused must be confronted to verify the truth of the alleged facts and obtain more leads. The Magistrate in making the remand order relied on a 2020 judgment Reha Chakraborty v The Union of India which held that all offences under the NDPS Act are non-bailable offence. Therefore the question whether offences charged are bailable or not did not arise in the present application. As per the remand order, Khan and other co-accused will be kept in remand custody until October 7th.
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