Mumbai: Senior counsel Amit Desai argued in the Bombay High Court on Wednesday that the arrests of Aryan Khan, his friend Arbaaz Merchant and Munmun Dhamecha in the cruise liner drug bust case was illegal given the rules and judgments concerning contraband seizures of small quantities. He cited a Supreme Court ruling that deprecated unwarranted arrests saying they cause “humiliation’’ and a 2014 landmark apex court ruling in Arnesh Kumar which enunciated the principle and sought mandatory enforcement of section 41A for “all offences that attract less than 7 years’ jail term’’. He then cited a Andhra Pradesh high court judgment to say that section 41A applies to cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act too.

“We (Aryan Khan, Arbaaz Merchant) are arrested for an offence of consumption that has not been committed,” said Desai, pointing out that they could only be accused of having an intention to consume. Justice Nitin Sambre will continue hearing their bail pleas on Thursday.

Desai also pointed to the bail granted to two co-accused Avin Sahu and Manish Rajgaria in the same case following the October 2 raid at the cruise terminal, There was recovery of 2.4 gram of charas from one, and none from the other, NCB (Narcotics Control Bureau) said. Desai said on principles of parity since it involves a question of liberty, it can be looked at.

He said the heart of the case is the conspiracy charge. “NCB misled the court in its first remand application, saying they were arrested for conspiracy though the arrest memo shows no arrest for conspiracy.” He said “conspiracy” defined by jurists requires a meeting of minds prior to an act. For example, he said if two burglars break into the same house independently at the same time, it is not a conspiracy.

Senior counsel Mukul Rohatgi for Aryan Khan added that in his arrest memo, “there is no mention of any recovery” and a joint possession cannot, in law, be shown.

Appearing for Merchant, Desai said the cases involving the trio are “individual and unconnected to others”. He argued that “there can be no case of consumption either. Consume is a verb. Their case was at best of intention to consume which is not an offence under section 27 of the NDPS Act”. He said there should have been no arrest because Aryan had no drugs in his possession; NCB can, at best, establish possession of 6 gram by Arbaaz; and no medical tests were done to show consumption.

Desai said the arrest memo was identical for Khan and Merchant. He said in the remand application for Aryan, “they dumped…recoveries from others who were not even arrested at the time”.

Desai said Aryan, Arbaaz and Munmun were arrested for identical offences of sections 8(c) read with 20(b) (for possession) and 27 (for consumption). Section 28 (attempt) and 29 (conspiracy) were not on the horizon, which means maximum punishment would be one year. He said there was no case for a conspiracy as they had no agreement. Since these were individual acts of alleged possession and consumption, NCB officers had a duty to first issue notice instead of effecting arrest, he said.

“What is recovered? Only 6 gram from Arbaaz and 5 gram from Munmun, but NCB said 21 gram. There is no connection. No Whatsapp messages and calls between them. The trial court rejected bail because NCB alleged commercial quantity recovered from an accused with who these have no connection.’’

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