‘No recovery, no consumption, no medical test’, Aryan Khan’s counsel to Bombay HC; hearing to resume tomorrow

Aryan Khan’s counsel Mukul Rohatgi submitted that no illegal substance was recovered from Khan and there was no evidence linking him to any conspiracy or illicit trafficking punishable under NDPS Act

Aryan Khan in custody
Aryan Khan in custody

NH Web Desk

Aryan Khan cannot be held liable under the Narcotic Drugs and Psychotropics Substances Act (NDPS Act) for charas recovered from the shoes of his friend Arbaaz Merchant, Khan's counsel Mukul Rohatgi told the Bombay High Court on Tuesday.

Rohatgi submitted that no illegal substance was recovered from Khan and there was no evidence linking him to any conspiracy or illicit trafficking punishable under the NDPS Act.

"It was not in my control what was found in Merchant’s shoe. Arbaaz is not my servant, he is not under my control, so there is no conspiracy," Rohatgi submitted before single-judge Justice Nitin Sambre.

Justice Sambre is hearing the bail plea by Khan after he had failed to secure relief from Magistrate and Sessions Court. The hearing remained inconclusive and will resume tomorrow at 2.30 pm.

When the matter was taken up for hearing today, Rohatgi pointed out how Khan along with Arbaaz Merchant had come to the Mumbai international terminal to board the cruise ship after a friend Prateek Gaba invited them as guest.

"It appears that the NCB had prior information that people will be carrying drugs. So NCB sent officers so they could apprehend customers. Khan and Merchant were apprehended from the terminal," Rohatgi said, as per a Bar & Bench report.

Rohatgi stressed on the fact that there was no recovery of any banned substance from Khan. "There was no recovery from Khan and there was no medical examination to show that there was consumption. Merchant had 6 grams of charas which was recovered from his shoes. Merchant is denying it. I am not concerned, except that he is my friend. As far as I am concerned, there is no recovery, no consumption and no medical test," Rohatgi submitted.

Regarding the statement given by Khan, Rohatgi highlighted the Tofan Singh judgment of the Supreme Court to contend that the same is not admissible in court. "There is a judgment of Tofan Singh. Justice (Rihinton) Nariman speaking for the court held that statements made to NDPS officers are inadmissible," he said.

“Since there was no recovery, I submit I am wrongly arrested,” Rohatgi maintained.

"There is no consumption, there is no possession. What is put against me is that I came with Merchant, so I had 'conscious possession'. It is farfetched. They say it was known to me and I had control. My case is that it is not conscious possession at all. What somebody had in their shoe or wherever is not my concern," he argued.

Rohatgi also pointed out that even assuming (without admitting) that Khan was in knowledge of the substance with Merchant, the contraband recovered was only 6 grams – which is considered a 'small' quantity under the Narcotic Drugs and Psychotropic Substances Act.

"So this small amount is not enough to keep me in custody. Many others have been found with intermediary and commercial quantity. There is no Section 27A against me. So conscious possession even if applied is for small quantity," Rohatgi contended.

Rohatgi also maintained that the rigours of Section 37 of NDPS Act putting restrictions on grant of bail will not apply.

He said that the Sessions Court had incorrectly held that Section 37 would apply based on its finding that Khan was involved in conspiracy under Section 29 of the NDPS Act.

This was based on Khan's WhatsApp chats.

But Rohatgi said that Khan was not part of any conspiracy and the WhatsApp chats relied upon by NCB were from a much earlier period.

"The Whatsapp chats, they were of the time period of 2018. None of the chats are from the cruise. There is no case where those chats with “123” have anything to do with this saga. Those chats, we will have to see in trial, to be proved. The chats have nothing to do with the current scenario and therefore, to use general phrase like conspiracy is not right," he said.

The only case against Khan is of conscious possession and that too of small quantity, he said. "I am not admitting to consumption or use. The only thing is conscious possession and that is also small quantity," he said.

Rohatgi also pointed how there was no seizure of mobile phone of Khan.

Pertinently, Rohatgi highlighted that the NDPS Act is not retributory but reformatory and how young persons with small quantities can be sent to rehabilitation centres.

"These are young boys. They can be sent to rehab and they need not undergo trial. It had come in some newspaper that the social ministry was mentioning about reform," he submitted.

The Senior Advocate further argued that Section 27A on illicit trafficking will also not apply in Khan's case. "My case is far from 27A. There is no evidence (for the same). I have not financed anyone trafficking," Rohatgi said.

Thus, even if held guilty after trial, Khan cannot be imprisoned for more than a year, he said.

Interestingly, Rohatgi also pointed out how cannabis is legal in certain countries. "My case is not of possession or consumption. In US and some parts of the world, cannabis is legal," he said.

"You may link me with Merchant and accused 17 (Aachit Kumar) only after the recovery. But I am not linked with anyone else. Conspiracy is when all twenty (accused) have met prior and there is a meeting of minds," said Rohatgi, concluding his arguments.

Senior Advocate Amit Desai submitted that from the material collected by NCB, what has come out is that Khan was friends with Aachit Kumar with whom he used to play online poker.

"That was the communication exchanged (over WhatsApp). Based on that communication, they are showing connection. Beyond this communication there is nothing. Khan was asked about the chats and he said he knew due to the online game. Nowadays there are a lot of online gaming. I am saying this because there are petitions challenging online games. But there is nothing beyond that poker communication," Desai argued.

"Exactly, what I am saying is there is nothing to show that I was financing illicit trafficking (under Section 27A)," Rohatgi weighed in.

Later, Desai commenced arguments on behalf of co-accused Arbaaz Merchant when the Court chose to rise.

Khan was taken into custody by the Narcotics Control Bureau (NCB) on October 2, 2021 after the NCB raided a cruise ship en route to Goa from Mumbai.

He was placed under arrest on October 3 and charged with offences under Section 8(c), 20(b), 27, 28, 29 and 35 under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

He was remanded to NCB custody till October 4, which was extended till October 7. Thereafter, he was remanded to judicial custody after which he immediately moved for bail.

Additional Chief Metropolitan Magistrate RM Nerlikar had rejected the bail application, holding that it was not maintainable as only the special court of sessions was entitled to hear the bail plea.

Subsequently, Khan moved the special court under the NDPS Act seeking bail which came to be rejected on Wednesday, October 20 prompting the present appeal before the High Court.

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