Aryan Khan bail hearing in cruise ship drug case [LIVE UPDATES from Mumbai Sessions Court]

A Mumbai Sessions Court will continue hearing bail plea by Aryan Khan, son of Bollywood actor Shahrukh Khan, in the cruise ship drug case, in which he is the prime accused.The matter will be heard by special judge under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), VV Patil.Yesterday, Khan's counsel Amit Desai made lengthy submissions before the Court arguing that the allegation by the Narcotics Control Bureau (NCB) that Aryan Khan was involved in illicit trafficking of drugs was inherently absurd.Additional Solicitor General Anil Singh had commenced arguments on behalf of Narcotics Control Bureau (NCB) but the hearing remained inconclusive. It will resume today.Read details on previous proceedings here.Live updates from today's hearing below..Additional Solicitor General Anil Singh who is representing NCB, is currently arguing matters before the Bombay High Court. The hearing before Sessions Court in Aryan Khan bail matter is likely to start only after Singh finishes his High Court commitments. .A social worker has approached the court and wants to be heard as an intervenor..Social worker’s lawyer: Drug menace in society is a grave issue and needs to be dealt with. There are bail applications of 2017-18 pending in courts while Aryan Khan is getting special treatment by getting expeditious hearing of his bail plea..Adv Anandini Fernandes, junior of Satish Maneshinde: Intervention cannot be allowed. We have already argued our case and the prosecution is represented by ASG. So he cannot say that prosecution is not adequately represented.No third party can come like that in a criminal case. He is neither a complaint nor informant. He is not even an affected party! .Fernandes: This is just a publicity stunt. Why has he not intervened in any other case. There are three bail applications being heard right now...He is only intervening in Khan's bail plea..Social worker lawyer: We can assist the prosecution, my bonafide will be revealed to the prosecution. Fernandes: I am strongly objecting to him assisting the prosecution as well..Court dismisses intervention application by the social worker..ASG Anil Singh is currently arguing one of his matters before the Bombay High Court. Another case in High Court in which he was supposed to appear got adjourned..ASG's arguments in Bombay High Court might last for 30 minutes after which the other side might make rejoinder arguments. Hence the hearing in High Court might go on for an hour. The bail hearing in Aryan Khan before sessions court might start only after that..Watch this space for latest updates..Special Public Prosecutor AM Chimalker for NCB tells Sessions court that ASG is on his legs in Bombay High Court. Should be here in sessions court in 20-25 mins: Chimalker.Senior Advocate Amit Desai who is appearing for Aryan Khan, mentions the case: We have been waiting, so at least a message should have been sent to know till when ASG will be here. That matter in high court was to be heard only at 12.SPP Chimalker: I mentioned that he will be here by 1 pm. ASG is on his legs in High Court..Desai: I did not know that you did mention it...I understand that it is an important matter there as well... But this is also about the liberty of a person.Maneshinde: Let us do one thing. When he (ASG Anil Singh) reaches here, we can all sit back a little even after 2 pm and finish this case (2 pm to 2.45 pm is lunch time in sessions court)..Meanwhile, ASG Anil Singh has left Bombay High Court for sessions court. .ASG Anil Singh has reached sessions court. SPP Advait Sethna appearing with him..ASG continues with his submissions.ASG: My apologies for coming late. I was arguing a matter in High Court. .ASG: My submission on facts is that first the present applicant is not a consumer for the first time. .ASG: The record and the evidence before your honour shows that he is a regular consumer of contraband since last few years.The contraband in possession of Arbaz Merchant who accompanied Khan, was for consumption of both of them. .ASG: I have shown panchnama and whatsapp chats. I will show the relevant portion of panchnama. That is in the bail applicationASG reads out the panchnama. ASG: The panchnama records that they are going to the cruise for a blast. They had the substance for the journey..ASG: The record in the panchnama signed by the applicant establishes that he was in conscious position of contraband because he admits it was with his friend and it was for consumption of both of them. The contention that nothing was found with Applicant may not be correct..ASG: The next submission is that the quantity of the hard drug cannot be for personal consumption. The quantity can be seen from the chats. The peddler, kadir and foreign national were in touch with Aachit Kumar.We are in touch with the ministry to find out the foreign national. .ASG: Kindly see the definition of 'use', because I heard my learned friend argue that consumption includes use and vice versa.Use in relation to narcotics drugs is everything except personal consumption. Hence I am showing this section..ASG: See Section 35 of NDPS Act for a minute. Section 35 is a presumption of culpable mental state. Therefore, there is always a presumption that when drug is found in possession of someone, then what the agency saying is correct unless proved other wise.The case of Agency that drugs are found in his possession has to be considered prime facie correct. .ASG: The next relevant provision is Section 54 of NDPS Act. From possession of illicit articles there is presumption, and at the trial stage the accused has to show that he was not in possession of illicit articles..ASG: There is always a presumption that if the agency comes with a case that the accused has been found in possession of drugs then it is presumed to be correct till it is disproved trial..ASG: Now see Section 37 of NDPS. The reason I am pointing to 37 is because I pointed out 29. I have come with a case of conspiracy. In one case if there are 15-20 people involved and it is case of conspiracy and possession with one accused, then 37 kicks in.And then stringent condition against grant of bail will apply..ASG: Today we are at preliminary stage of investigation. My learned friend is saying I cannot apply Section 29 (conspiracy) of NDPS Act at this stage. But there is no restriction on me applying Section 29.It is not a correct position. As far as charges are concerned I can invoke any sections. As investigation progresses further, I will get evidence..ASG: There are provisions in the NDPS Act which has got nothing to do with quantity, so that cannot be an argument to say that punishment is only for a year.Once the connection is established, then the quantity is not important. My submission is that this is not a case for grant of bail, I have some judgments to cite..ASG: Coming to the submission on the mobile seizure, which Mr. Sayed made. I want him to show in the application where is this ground?In the panchnama, it is recorded that mobile phone was voluntarily given. Can that not be done in investigation. What I investigate, how I investigate, whom I investigate, is the agency’s prerogative..And since this is not in the application we did not reply to it in our reply. Else we would have: ASG Officer VV Singh tells the court that the phones were voluntarily submitted was recorded by the person who recorded the panchnama..ASG shows the judgment in the case of Showik Chakraborty. ASG reads excerpts from the High Court judgment..ASG: In that case the argument was there was no recovery of contraband but in our case there is.The High Court in that case held that the accused was an important link in the investigation and that there were monetary transactions. It held that all the bailable offences are non bailable under NDPS..ASG: The High Court held that even if there was no recovery, the accused were in touch with drug dealers, so bail cannot be granted. In the present case, there are drug dealers. Aachit and Shivraj are drug dealers with whom the accused were in touch..Hearing resumes..ASG: The second judgment is UoI v. Shivshankar Jaising - Supreme Court judgement.This is judgment which states that retraction is a matter of trial. The retraction came first time on October 7, but in any case it has to be considered at the stage of trial not at the stage of investigation..ASG: Third judgment is a Bombay High Court ruling in MD Kale v. Mohamed Afzal. I am not reading it but it is on the same point as previous judgment..ASG points out another judgment. I am pointing out this judgment because it is after Toofan Singh judgment. Toofan Singh is at the stage of trial, not applicable at the stage of bail: ASG.ASG: Retraction can be considered at the stage of trial not at the stage of bail. .ASG: The next judgment is Nawaz Khan. This is on recovery.Assuming the case of applicant of no recovery is accepted, kindly see the Nawaz Khan para 25. Even if there is no recovery, the rigours of Section 37 of NDPS Act will apply, is what the judgment says. .ASG: There is another judgment on conspiracy - State of Orissa v. Mahimananda Mishra. In conspiracy there cannot be direct evidence because only conspirator will know the conspiracy. So SC has said there can only be circumstantial evidence..ASG: The next judgement is on two different points. One is applicability of Section 37 and second as to how serious a crime is under NDPS Act..ASG reads another judgement on the same point. ASG: Again, the judgment of SC in State of Kerala v. Rajesh. This is also on twin conditions.ASG: So the next judgment is Ratan Malik. It is also on the point of recovery. ASG pointing out paragraphs from the judgments he is citing, for the court to consider..ASG from order: At the stage of investigation this observation is made - recovery is not material..ASG: The next judgment is Gopal Singh v. State of Delhi. This is on recovery, twin conditions and conspiracy. It covers all three points..ASG: Then Harshmani v. Customs is a Bombay High Court judgment that I am citing. ASG (quoting from the order): The Court must be satisfied that even if the allegations are established there exists every likelihood that accused can be acquitted..ASG: Now the last two judgments I will be citing are: one, Bharat Thakker v State of Maharashtra. This is on Section 37. But I am not reading reading that part. ASG (reading from the order): There are countries in which such offences are getting death penalties.. In such classes of cases, bail should be exception and not rule..ASG: My submission to the court is that when we are considering a case under NDPS Act, the court has to consider the stringent provisions of the Act. The scheme and object of the act. .ASG: The international convention has said that drug trafficking and abuse has to be taken seriously because it is affecting nature and the world. From time to time amendments are made. I am glad my friends appreciated the role of NCB in Mumbai, but allegations are also made.Now is the time to point out that our officers are working day and night, and are trying to find a solution to drug trafficking..ASG: A few days back 4-5 officers of mine were attacked. They are in a hospital for the past week..ASG: This abuse is affecting the young boys. They are college going boys (but) this should not be consideration for bail. I need not tell the court, you are the future of our country. The future of the country depends on this generation.This is not what our freedom fighters had in mind. This is the land of Mahatma Gandhi and Buddha. The investigation is at preliminary stage, this is not the stage for grant of bail..ASG: Milords may consider it (bail plea) at a later stage but not at this stage. We still have to find out how they are connected with each other..ASG is now reading Munmun Dhamecha’s reply.ASG: The rest of the arguments are common, and rest of the paragraphs are common. It is part of same conspiracy..Court: Are you relying on the whatsapp chats?SPP Advait Sethna: Yes we have submitted the chats. Court: I will need to see it..Sethna: We will submit original files, it is all part of investigation..Adv Ali Kaashif Khan Deshmukh for Dhamecha: The sections levelled against me are 8(c), 20(b), 27, 28.. 29 is not there in the arrest memo. The rigours do not apply to me. Even if benefit of doubt is given to me, it is a small quantity, I should be out on bail. I will abide by all conditions.Desai: Let me start with my learned friend's conclusion and as an officer of the court and citizen of the country. There can be no doubt on the importance of a statute on nation. There is no doubt that the world is fighting drug menace. We got our freedom, we must protect it, and ensure development of society..Desai: We must as citizens take precautions of the health, and there is no doubt about that. Kudos to the NCB for doing this job and just hope that they continue investigation in a legal manner.I am appreciating that the officers are risking their lives for protecting their country..Desai: But what is equally important is that the freedom fighter he mentioned and more have fought for the constitution for the procedure of lawEverything that he has done is correct, but it ought to have been done as per law. There are types of drugs and types of drug menace and the govt has to decide what has to be dealt with socially and what as a menace..Desai: The government issued a policy document to fight the issue of narcotic drug issue in the country. The youth are important no doubt but there are principles of justice to be considered.The chain goes from Major drug peddlers, to small time peddlers and then consumers. When it comes to drug peddling to school and college going children, it (govt policy) spoke about sensitizing them..Desai: The fundamental amendment which took place in the Act are all pre amendment of 2001 that is my difficulty, when I say we have equal duty to constitution and equal duty to law..Desai: Nikesh Tarachand has struck down the twin conditions. And this says that bail can be granted even for ongoing investigation. The offences punishable with less than 1 yr of punishment can be granted bail..Desai: The judgment of Aug 24, 2021 of Bombay High Court of Harsh Shah. I am giving this because of what my friend argued at the end. I am in the court of law, and we must know what the law is, and what judgment is applicable to us..Desai: The problem of drug menace has been going on for a long time, but it is cases like this which bring about far more awareness. This is because of media which brings about the awareness..Desai reads ASG’s comment in Rhea Chakraborty’s judgments. He (ASG) argued that celebrity and role models should be treated harshly because they have influence on society..Desai: But what does HC say? I don’t agree. I stand before he court and urge your lordships to follow the law. No celebrity or role model enjoys special status before the court and hence they should be treated equally before law..Desai: Now couple of submissions based on law which I believe are the facts. If he has committed crime of consumption, please see his statement.. let us assume there is confession of consumption, what is the worst punishment? 1 year..Desai: The statement reverberates is that there is a confession. But that will be tested in the course of the trial and in the larger scheme. But the retraction that has been filed and it is on record.Let us stick to the law and let us stick to the facts. Retractions are there..Desai: Then this issue of mobile phone. I didn’t want to get into it too much. But my colleague knowledgeable on the subject has drawn attention on the phone. Let me deal with that. Let me read the statement. There is a statement that it was voluntarily handed over.Desai reads from the panchnama: If the phone is voluntarily taken then also there has to be something, but the panchnama says seized it was not handed over. There has to be a seizure memo..Desai: There has to be a separate memo for that. We have forgotten these things. Nobody stops their investigation, why should it stop my liberty! It stops at liberty, liberty and liberty!.Desai: If a gentleman is released on bail, how will there be a hindrance on the investigation. Then they say because of S. 37(2) the burden reverses so now I must satisfy, so when we look into the matter, if released on bail it is not going to affect investigation.In context of twin condition of 32 they hang their entire case on two things - conspiracy and second is seizure from Abdul of commercial quantity..Desai: They say that you are a person at the bottom of the chain, that you are the consumer and instead of trying to reform you I will pick you up and put you in jail, till the time the conspiracy is unearthed.And Abdul is the one from whom commercial quantity is found. This is far too stretched out. If this goes on for long then what happens to reformative law.Desai: We are at a stage where we were arrested on October 3 and now on October 14. Custody was given in bailable offence to facilitate investigation.Then he was remanded to judicial custody. Now the learned magistrate, applied his mind and satisfied himself that the crucial stage qua my client was completed on October 7 and there was no statement recorded except the one of October 4 and no interrogation..Desai: The magistrate said small quantity only recovered and he refused NCB custody. All that international trafficking and global point.. if the consumer says from where he is procured it, then the chain is complete. It is NCB's statement that I gave Aachit name..Desai: The link if at all, but the investigation is over. This commercial quantity is the link for 37(2). But please forget the chart. The link is Abdul.Who gave them Abdul’s name? It was not Khan, Merchant, or Abdul or Aachit. That name is given by Mohak and this is their own statement. .Desai: We therefore for a moment go to Showik Chakraborty and see the judgment. What he should have shown was the observation of the court.The judge has shown all the links from the peddlers to the consumers, and the court has come to the conclusion that Showik was not consuming but he was involved in facilitating the drugs and distributing the same.Thereafter, Showik was granted bail, immediately after chargesheet..Desai: I daresay that the conversation if there is one, I don’t know the veracity of it. I don’t know any of the conversations. This youth of today they have a different way of expressing themselves, which may seem like torture to us older generation.The language (used by them) may seems like something different then what ought to be in court of law. And those conversations may lead to suspicion, as it should..Desai: But what is important to be borne in mind is by no stretch of imagination is this boy involved in any kind of conversation of drug trafficking or international drug trafficking..Desai: They say they are in touch with MEA and all. Well you go ahead and continue. But this allegation is inherently absurd and false.What is this kind of conversation that the new generation is dealing with. Today's WhatsApp chats of friends can sound different..Desai: These are private moments which are being investigated. You can go ahead and investigate... But this has nothing to with illicit behaviour, Illicit drug trafficking. Context is important when we deal with evidentiary value.The chats are all youthful banter. Some chit chat is happening, it is for them and not for me..Desai: Let us keep all that aside. My humble submission is that the entire reason to believe did not include Sections 28 and 29. The fundamental argument is that there was a rave party. I was not found with anything. I cannot be held responsible. There is nothing on the phone about the messages about rave party..Desai: This young man was overseas for a while. In those countries some times lot of things are legitimate. I don't know what kind of chats are there. I have not seen. The possibility of conspiracy and speculation cannot hold me back in this case..Desai: ASG has argued that Toofan is not applicable for bail. But in fact it says that it is applicable even at the stage of bail.The chat messages which they tried to suggest is evidence is an extra-judicial confession which is a weak form of evidence. And the chats have no section 65B certificate.Desai: Let him be a free man. Let strict conditions be imposed upon him. But this is a fit case for bail. Even if Section 37(2) (applies), I have satisfied requirements under that and there are no antecedents. .ASG: There are only two contentions. I don’t want to argue anything in sur rejoinder. As far as question of facts are concerned, he does not know what are the records placed and yet he argued on that, what it contains and the youngsters chat and all..ASG: I have placed those chats on record. It is simple and clear and it is not in code. Desai interjects: Don’t argue on facts please..ASG: I am only saying what you have argued. You took more than an hour for rejoinder I am taking 2 mins. I am placing on record some facts, and WhatsApp chats and all the evidence has been placed on record for your perusal. .Sethna: I am only bringing a fact on record.. Desai: The senior at the bar is sitting here.. what ethics is this? Sethna: The Armaan Kohli judgment which was rejected by CMM with the same facts is rejected. The judgment is yet to come.Desai: You are citing sessions court judgment as precedent. Sethna: But you also did that. Desai: I used it as arguments. ASG: What Sethna wanted to say was that there is an order passed and only wanted to bring that to the court's attention.

Aryan Khan bail hearing in cruise ship drug case [LIVE UPDATES from Mumbai Sessions Court]

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