Rajat Sharma

Refusing bail to Aryan Khan is unjustified

AKBOn Wednesday, the Mumbai NDPS court gave an order which surprised everybody. The NDPS court judge V V Patil rejected the bail petition of superstar Shahrukh Khan’s son Aryan Khan, who is in Arthur Road central jail for the last 13 days. The judge had reserved his order on bail petition for the last five days, and, gave his order on Wednesday, rejecting bail applications of Aryan Khan and his two friends, Munmun Dhamecha and Arbaaz Merchant.

In his detailed order, the judge disclosed the reasons why he rejected the bail petitions. However, the fact remains: no drugs were seized from Aryan Khan, nor was any money found on his person, nor was there any evidence of Aryan purchasing or supplying drugs. No such mention has been made in the Narcotics Control Bureau’s report, nor was it mentioned by NCB lawyer in his arguments. The question arises: why was bail denied to Aryan? His lawyers, Amit Desai and Satish Maneshinde, were very much optimistic about getting bail because they knew that their arguments had solid reasons. Yet the bail petitions were rejected.

Aryan has been facing the full brunt of law for the last 17 days. First, he was in NCB custody, and since October 8 he is in judicial custody, meaning, he is in Arthur Road jail. When I went through the detailed order of the NDPS court judge, I was surprised. It appeared as if I was reading charges against an international drug mafia.

After going through the arguments of NCB, on the basis of which the bail petition was rejected, it appeared as if NCB has exposed a habitual drug addict, a drug peddler and one running an international drug racket.

The most surprising part is that nowhere in its arguments has the NCB said that drugs were seized from Aryan Khan. The NCB, in its arguments, admitted that it had no evidence of Aryan carrying drugs or that he was going to buy drugs. The question then arises: on what basis was the allegation made that Aryan could be part of an international drug racket?

In its reply, the NCB referred to WhatsApp chats that Aryan had with his friends on his cell phone. The NCB zeroed in on two phrases “hard drugs” and “bulk quantity” used in the chats to raise the suspicion that Aryan, the 23-year-old son of Shahrukh Khan, could be part of an international drug racket. These two phrases disclosed by NCB in its arguments clinched the ruling in its favour and the bail petitions were rejected. The NCB’s plan was evident when it added Section 29 of NDPS Act in the case against Aryan, meaning that it would oppose his bail pleas.

The NDPS court in its order said, “Prime facie material showing that Khan was in contact with persons dealing in prohibited narcotic substances as alleged by prosecution.” The court said, record shows Khan and Merchant admitted to being friends for long, travelled together to the party and were apprehended together. “In their voluntary statements, both disclosed they were possessing said substance for their consumption and for enjoyment. Moreover, WhatsApp chats prima facie reveal (Khan) is dealing in illicit drug activities of narcotic substances on a regular basis”, the 22-page order said.

The court said, “aspect of proving conspiracy is required to be considered only during trial, but prima facie it appears to be a case of conspiracy.” The court noted that Additional Solicitor General for NCB had shown WhatsApp chats of Khan with foreign national and unknown persons dealing in drugs, and their perusal revealed “references of bulk quantity and hard drugs”. However, accused Arbaaz Merchant’s lawyer said, that the phrase “bulk quantity” was used by Aryan Khan for football matches, whereas the NCB linked this with drug transactions.

Aryan Khan’s lawyers had told the court that WhatsApp chats cannot be produced as evidences in court, because they are not considered evidence under Indian Evidence Act. The Act clearly states that WhatsApp chats, without certification under Section 65B, are not admissible as evidence in court. They are not considered as reliable evidences, the lawyers had said. The court, however, said, that even if one agrees that the WhatsApp chats are not admissible as evidence in court, and that there is no certificate, the matter is still under investigation, hence certification is not required now.

In his detailed order, the judge said that case of each accused cannot be segregated from each other and cannot be considered in isolation. “There is prima facie involvement….in commission of grave and serious offences. This is not a fit case for granting bail”, the order said.

In his order, the judge also accepted the prosecution’s submission that though the three accused have no criminal antecedents, since all including Aryan Khan are “influential”, they are likely to tamper with evidence if released. The judge said, NCB was now investigating “other drug dealers who appear to be part of an international drug network”.

Several senior lawyers are not in agreement with the judge’s views expressed in the order. Lawyer Majid Memon says, there is simply no basis on which bail can be refused. Aryan Khan, he said, is not a habitual offender nor has he a criminal record, hence, he must be released on bail. An accused cannot be kept in jail as part of punishment.

Under the criminal justice system, an accused can be arrested or kept in custody only with a limited objective . Aryan has not committed an offence which calls for life imprisonment or capital punishment. He has no criminal antecedents and he will not be able to tamper with evidence, so there is no basis on which bail can be refused.

To put it bluntly, Aryan was refused bail only because he is the son of a superstar. The court felt that the 23-year-old youth was “influential”, since he is Shahrukh Khan’s son and he can influence witnesses. I feel, this is, to some extent, injustice to him. To be a son of a famous personality is not a crime. Aryan has been in custody for the last 17 days and the NCB had more than ample time to find out whether he had any links with any international drug network.

To label somebody as a criminal, or a part of an international drug mafia, only on the basis of WhatsApp chats, is an act that cannot be justified. While going through the court order, I realized there were simply no evidences to support the charges against the accused, and the entire case seems to have been framed on the basis of imagination, doubts and suspicions. Six grams of charas were found from Arbaaz Merchant’s possession. NCB suspects this 6 gm of charas was meant for Aryan Khan.

NCB feels that once Aryan comes out of jail, he may resume taking drugs and join the drug racket. When asked where the question of drug racket arose, NCB pointed towards WhatsApp chats between Aryan and Arbaaz. Merely on the basis of two phrases ‘bulk quantity’ and ‘hard drugs’, the NCB suspected that they were part of an international racket.

The court, in its order says, Aryan is not revealing the names of international dealers with whom he has contacts. Aryan’s and Arbaaz’s lawyers claim, the two were discussing football. Then where does the question arise about both naming international drug dealers?

Overall, it seems that the folly of a 23-year-old youth is being used to brand him as a habitual criminal. This is not the right thing to do. It is injustice. I have full confidence that the Bombay High Court will consider all these facts and give justice to Aryan by granting him bail. Aryan’s innocence will be proved ultimately.

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