Aryan Khan, son of Bollywood superstar Shah Rukh Khan, has been in jail for the past 22 days now, since a Mumbai Sessions Court refused to grant him and two others bail in connection with the cruise ship drugs case. The 19-page order by the Mumbai court rejecting bail has clearly established a few things. The NCB seized 13 grams of cocaine, five grams of Mephedrone (MD), 21 grams of charas and 22 Pills of MDMA (ecstasy) — but none of this was on Aryan Khan.
Contraband — 6 grams of charas — was found in possession of Aryan Khan’s friend Arbaaz — and this classifies as a small quantity as per law. Though no contraband was found on Aryan Khan, he is still the accused no.1 in the case and his bail was denied. The court cited three reasons for rejecting bail — NCB said investigation in the case is still pending, WhatsApp messages show Aryan Khan is part of an ‘international drug racket’ and that NDPS sections that the accused are booked under are non-bailable.
The court also held that since Aryan is very good friends with Arbaaz, from whom 6 grams of charas was seized, it “cannot be assumed” that Aryan did not know that Arbaaz had drugs on him. In this case too, like the Rhea Chakraborty case, the NCB has relied on WhatsApp chats and his personal relationships to build the case.
The Mumbai sessions court held in its order, that a “perusal of WhatsApp chats reveals that there are chats of applicant/accused no.1 (Aryan) about drugs with unknown persons. There is also reference to bulk quantity and hard drugs in the chats. There is prima-facie material showing that applicant/accused no 1 was in contact with persons dealing in prohibited narcotic substances as alleged by the prosecution.”
The court added that “Whatsapp chats prima-facie reveals that accused no.1 (Aryan) is dealing in illicit drug activities of narcotic substances on a regular basis. Therefore it can not be said that accused no.1 (Aryan) is not likely to commit a similar offence while on bail,” and rejected his bail application.
But how admissible are WhatsApp chats? WhatsApp chats are admissible as evidence if they satisfy criteria under the Indian Evidences Act, 1872. Section 65B of the Act says the electronic device should be used regularly, the device should be working properly and should not affect the information fed into it, and that the evidence produced should be a duplicate of the record on the original device.
But what is the evidence that the NCB has found in these WhatsApp chats? The chats have been submitted in a sealed cover to the court, but going by the NCB’s history of ‘leaking’ chats to the media, screenshots are doing the rounds of a chat between Aryan Khan and actor Ananya Pandey on ganja. No other chats have surfaced till now, but going by the initial leaks, it can be assumed that this is the NCB’s main evidence as of date of an ‘international conspiracy’. Now this chat too happened in 2019, when Aryan Khan was studying abroad.
The next question is whether this evidence is admissible.
A lawyer explains that the court will only consider what material is presented before it. It will not go into whether it counts as evidence at this stage, because right now it is only hearing a bail issue. The admissibility will be more relevant at the stage of trial or final arguments, or when the main substance of the case is being heard by the court, explains a lawyer who wished to remain anonymous.
“Let's say if this was a stage of the trial, or final arguments or something in the main substance of the case, maybe then, but at this stage of bail, admissibility arguments will not really fly before a court,” the lawyer said.
“Though no contraband is found in possession of accused no.1 (Aryan), 6 grams of charas was found in possession of accused no.2 (Arbaaz) of which accused no.1 (Aryan) was having knowledge and thus it can be said that it was in conscious possession of both the accused. Hence all the submissions made on behalf of applicant/accused no.1 in this regard cannot be accepted,” the court held.
The lawyer explained that by using the word ‘conscious possession’, the court meant that Aryan had knowledge of the contents of Arbaaz’s shoes, which is where the charas was found.
“When the phrase conscious possession is used, the connotation is knowledge — that this is contraband, and that it is here. Here actually, the correct phrase would have been constructive conscious possession, because frankly, it's not in his (Aryan’s) shoes. It is constructively possessed by him, because the argument seems to be, ‘look whatever Arbaaz had, you knew he had it. And Arbaaz had it knowingly, and therefore, if you knew that Arbaaz had it knowingly, it means you had it knowingly,” the lawyer says.
The NCB also told the court that they have ‘voluntary statements’ from Aryan and Arbaaz on the consumption of drugs. The NCB has said that Arbaaz ‘voluntarily’ removed the charas from his shoe and handed it over to the agency officials. The Supreme Court had said that confessional statements under Section 67 of the NDPS Act cannot be conclusive and that NCB officials are also counted as police officials. However, the lawyer TNM spoke to explains that this is a stage of bail, and not arguments during the trial, so the court is not likely to consider the admissibility or the inadmissibility of the statements. All it will look at is the material that is put before them and make a decision on the basis of the material before them.
“The bigger issue is that while the court is not passing judgement on the admissibility, a court cannot be expected to forget the reason as to why the evidence is treated as inadmissible. Statements to the police are treated as very extremely prejudicial in the first place. Our law carries a presumption that police officers are police officers, and the setting of interrogations is inherently coercive. Which is why we do not accept any confession-type statements made to the police,” the lawyer said. He, however, added that Section 67 is not the only Section which allows statements to be taken under the NDPS Act.
A more pressing issue is that the NCB has not substantiated these voluntary statements with a blood test, and have reportedly claimed that they have enough proof to implicate Arbaaz and therefore Aryan in the case for consumption of drugs. However, legal experts have also wondered why the NCB has not conducted a blood test on the accused.
“Tomorrow, if this case goes to trial and if the accused persons say that we never made these statements as the NCB claims, then as an investigating agency, do you want to be in a position where you are at the mercy of the accused? That is what is surprising. Because no right-minded investigator would voluntarily place themselves in the position where independent evidence, when available, is forsaken,” the lawyer tells TNM.
A blood test, if conducted, would also show the presence of drugs if they were consumed, but it would also show absence. “You will get conclusive answers — yes or no — and you might not want that no — but I wonder if there will be a better explanation of this in the chargesheet,” he adds.
The third accused in the case is model Munmun Dhamecha, who was arrested after the NCB said that a small packet of hash was found in the room that was booked under her name. However — and the court also notes this in its order — there were two others in the room and those two have not been named as accused in the case at all. The court also accepted that the NCB has given no proof that the alleged recovery is attributed to Munmun Dhamecha. Despite this, the court said that this is not enough to rule out her role in the case. The lawyer points out that the logic that the court may have is that the two others in the room could testify as witnesses later.
“So there are a lot of questionable things, for example, how can you pick and choose persons like this? But, perhaps the NCB’s logic is that those persons might turn witnesses in the case later. Effectively, there were three of them in the room together with the packet that allegedly contained narcotics. Who did it belong to? Who did what with it? It's the three of them who are going to give their versions. This is really the hat which the court is also wearing. Having even worn that hat, does that mean you don't give the lady bail?” he asks.
“I, for one, would think that there is no reason to not give someone bail if the only thing is there is a packet of narcotics lying on the floor. At this stage, it has not been established that she was the one holding on to it, and the NCB’s version is disputed, it is something that will only be borne out during trial. How can you deny someone bail? I really fail to understand. But that's the call that the court has made,” he says.