khan: No proof of conspiracy: HC in Aryan bail order | India News

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MUMBAI: WhatsApp chats extracted from the mobile phone of Aryan Khan disclose “nothing objectionable” nor is there any evidence to show he and his friend Arbaaz Merchant or Munmun Dhamecha and other co-accused had hatched any conspiracy to commit drug offences, and they had already been behind bars for 25 days, said the Bombay high court in its reasoned order, made available on Saturday, while granting them bail on October 28.
“Applicants were not even subjected to medical examination so as to determine whether at the relevant time, they had consumed drugs,” said Justice Nitin Sambre, whose reasons for giving bail came a month after special NDPS judge V V Patil at the sessions court had found the same chats showing “reference to bulk quantity and hard drugs”. It is not in dispute that Khan (23), son of actor Shah Rukh Khan, was not found in possession of any drug, said the HC’s reasoned order.
Nor is it in dispute that the quantity of drugs allegedly seized from Arbaaz Merchant and Munmun Dhamecha, to whom too the HC granted bail, “is small quantity,” the order said. NCB had arrested the trio on October 3 following its October 2 raid. They were sent to judicial custody on October 7.
The NCB had said it seized 6 grams of charas from Merchant at the terminal gate. Merchant, the NCB said, planned to smoke it on the cruise and he was travelling with Khan, hence it was in Khan’s conscious possession, while 5 grams of hashish was seized from Dhamecha’s cabin on the ship. Khan was invited as a guest on the cruise by the event organiser.
The HC said, “Even if it is appreciated, the maximum punishment prescribed is not more than one year for such offence. Applicants have already suffered incarceration for almost 25 days.”
The HC issued the bail conditions and set the bond amount on October 29. The HC said it is “required to be sensitive to the fact that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the applicants”.
Merely because the applicants were travelling on the cruise, “that by itself can’t be termed satisfying foundation for invoking provisions of Section 29 (conspiracy) against the trio,” the HC reasoned. It rejected the NCB’s submissions made through additional solicitor general Anil Singh that there was conspiracy and since “cumulatively commercial quantity of drugs was seized from the accused persons”, the “intention” of the trio to commit offences under NDPS Act should be considered and bail denied. Khan’s counsel — Mukul Rohatgi, Amit Desai and Satish Maneshinde — and Merchant’s counsel, Desai and Taraq Sayed, had argued that for an offence of conspiracy, there has to first be a consensus via “meeting of minds” before the act is committed, and here there was none.
The ASG had said conspiracies are difficult to prove at the bail stage. None of them have any criminal antecedents, the order said. Dhamecha’s lawyer Ali Kaashif Khan argued she too was invited as a guest. Justice Sambre said to infer an act of conspiracy on part of the trio with other coaccused in the case, “There has to be positive evidence about such an agreement to do an unlawful act or a lawful act by unlawful means and such agreement must precede with meeting of minds.”
His order noted, “There is absence of material on record of them having such meeting of minds with other accused who were named in the offence in question.” There is “hardly any positive evidence to convince this court that all accused with common intention agreed to commit unlawful act”, said the order, “Rather the probe carried out till this date suggests that (Aryan and Arbaaz) were travelling independent of (Dhamecha) and there was no meeting of minds.”
“There is no material on record to infer that applicants have hatched conspiracy” to commit a drug offence, hence it is difficult to infer at this stage that they are involved in an offence of commercial quantity, hence a stringent provision like Section 37 which places greater checks on courts before granting bail “would prima facie not be attracted to the case at hand”. “It is difficult to infer that applicants are involved in an offence of commercial quantity,” said Justice Sambre. He said “confessional statements” recorded under Section 67 of NDPS Act can be considered only for probe purpose and “can’t be used as a tool for drawing inference that the applicants have committed an offence under the Act”.





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