Mumbai: A special NDPS court on Wednesday rejected the bail application of actor Shah Rukh Khan’s son Aryan Khan, noting there is material in the form of incriminating WhatsApp chats that shows his nexus with suppliers and peddlers.

The court also rejected the bail application of two others — Arbaaz Merchant and Munmun Dhamecha— who were arrested with Khan in the case of seizure of drugs from a cruise liner and said charges of conspiracy are applicable as it transpires all the accused are connected in the same thread.

Khan and Dhamecha have moved the Bombay high court in appeal and will mention it on Thursday. Khan has said in the HC plea that the drug trafficking charge is false and has denied illicit trafficking and conspiracy charges.

On Khan, the NDPS court said perusal of WhatsApp chats shows reference to bulk quantity and hard drugs: “Prima facie material showing that Khan was in contact with persons dealing in prohibited narcotic substances as alleged by prosecution.” The court said though no contraband was recovered from Khan, he had knowledge of charas recovered from his friend Merchant’s shoes. 

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Mumbai: The NCB (Narcotics Control Bureau) had claimed to have recovered 6 gms of charas from Arbaaz Merchant’s shoes. The NDPS court said Aryan Khan “was having knowledge and thus it can be said that it was in ‘conscious possession’ of both the accused.”

The court said record shows Khan and Merchant admitted to being friends for long, travelled together to the party and were apprehended together. It added, “In their voluntary statements, both disclosed they were possessing said substance for their consumption and for enjoyment. Moreover, WhatsApp chats prima facie reveal (Khan) is dealing in illicit drug activities of narcotic substances on a regular basis.” The court noted it hence cannot be said he is not likely to commit a similar offence while on bail.

Judge V V Patil’s court, in its 21-page order rejecting the bail plea of the trio, said, “Prima facie involvement of the three accused in commission of grave and serious offences. This is not a fit case for granting bail.” The court pronounced its verdict at 3:00 pm. The three accused were not in court. Khan and Merchant are in Arthur Road jail, while Dhameja is at Byculla women’s jail, where they will remain now pending a hearing and decision by HC.

The court noted ASG Anil Singh, for NCB, had shown it WhatsApp chats of Khan with foreign national and unknown persons dealing in drugs, and their perusal revealed “references of bulk quantity and hard drugs”. The court said it formed prima facie material to show he was in contact with drug dealers.

The court noted that “during interrogation (Khan) did not disclose details of the persons which” are in his exclusive knowledge and as argued by Singh, NCB said it is tracing the criminal antecedents of such persons and if Khan is released, “there are every chances of tampering with evidence.” “The court found NCB produced evidence to show prima facie that “accused are part of larger network”.

It rejected Merchant’s lawyer Taraq Sayed questioning the reliance on WhatsApp chats when NCB produced no phone seizure reports. The court said NCB papers show Khan and Merchant “voluntarily surrendered their mobiles.” It said “it is not possible to record satisfaction at this stage that applicants have not committed any offence under NDPS Act” and added, “Considering evidence on record it cannot be said that there are reasonable grounds” to believe that the trio is not guilty.”

Interestingly, while Khan’s lawyer cited the HC order granting bail to Rhea Chakraborty to establish that charges of criminal conspiracy are not applicable in this case, the prosecution cited the HC order in her brother Showik’s case to support its case of conspiracy. In Showik’s case, HC had said he appeared to be an important link in the chain of drug dealers. He had monetary transactions with dealers, HC had said, and observed it was not desirable to release him on bail at that stage. The HC, while granting Rhea bail, had said when there are reasonable grounds to believe the accused is not guilty of such offence, s/he is not likely to commit any offence while on bail.

The sessions court said there is a chance of Khan tampering with evidence. It also accepted Singh’s contention that rigours of the anti-bail Section 37 (used usually when commercial quantities are seized) of NDPS Act would apply since commercial quantity was recovered from another co-accused.

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The special NDPS court on Wednesday rejected the bail applications of Aryan Khan, Arbaaz Merchant and model Munmun Dhamecha. The special court, in its order, has said that prima facie there is material that the accused are part of a larger network and Aryan deals with illicit drug activities on a regular basis. The special NDPS court in its detailed order also made some observations with regard to the WhatsApp chats of Aryan submitted by the NCB.

The lawyers of Aryan and Dhamecha have now moved the High Court seeking bail. The court said, "WhatsApp chats brought before the court show that Aryan has been dealing with illicit drug activities of narcotics substances on a regular basis. Therefore it can't be said that Aryan is not likely to commit a similar offence while on bail."

The court has also said that there is incriminating material placed on record in the form of WhatsApp chats, which show Aryan's nexus with suppliers and peddlers. During the course of arguments, WhatsApp chats were shown to the court. These were chats of applicant/accused no.1 (Aryan Khan) about drugs with unknown persons. There is also the reference of bulk quantity and hard drug in the chats. There is also prima facie material showing applicant/accused no 1 was in contact with persons dealing in prohibited narcotic substances as alleged by the prosecution.

According to the court order, NCB had received specific information that a rave party had been organised on a cruise and the accused would arrive with the contraband and in pursuance of this information, a raid was conducted. During the interception the accused disclosed the name of those who supplied the contraband to them. "Thus all these facts prima facie show that the accused acted in conspiracy with each other," the court observed. The court also observed that during interrogation Aryan did not disclose names of foreign nationals and other drug dealers he was in touch with.

"It transpires that all the accused are connected in the same thread. The aspect of proving the conspiracy which deals with depth is required to be considered only at the time of the trial," the court further added while rejecting the bail pleas. The court in its order, said that Section 29 of the NDPS Act is applicable in this case, as the prosecution has alleged there is conspiracy and abetment.

Senior advocate Taraq Sayed who appeared for Arbaaz argued before the court that there is no mention of seizure of their mobiles in the panchnama so one cannot rely on the chats NCB is talking about. Aryan Khan's lawyer Amit Desai made similar arguments. However, the court in its order, said that the documents produced on record by the NCB show that both accused have voluntarily surrendered their mobile phones during interrogation. "Hence submission made by Arbaaz's lawyer that the seizure of the mobile phone was not shown in the panchnama, falls to the ground," the court said.

Munmun Dhamecha's lawyer, Ali Kashif Khan Deshmukh, argued that she is not connected to Aryan and Arbaaz and has been wrongly framed in the case. "As Munmun was arrested with contraband, her culpable mental state is clear and evident. She was found in possession of contraband in consequence of secret information received by NCB. Hence Munmun is also a part of the network and her case can't be considered in isolation," the court added on why Dhamecha's bail application was also rejected. While rejecting the bail of all three accused the court said, "Considering the prima facie involvement of Aryan, Arbaz and Munmun in commission of a grave and serious offence, this is not a fit case for bail."

The NCB, through the additional solicitor general, has argued that Aryan Khan had knowledge of charas concealed by Arbaaz in his shoes. "The papers show that though nothing was found in Aryan's possession, 6 gms charas was found with Arbaaz, concealed in his shoes. Aryan and Arbaaz have been friends for long. They travelled together and were apprehended together. Further, both of them in their voluntary statements, disclosed that they were possessing the said substance for their consumption and enjoyment," the court said.

"Thus all these things show that Aryan had knowledge of contraband concealed by Arbaaz in his shoes," the court added. The team of Amit Desai and Satish Maneshinde representing Aryan Khan have moved to the Bombay High Court challenging the order of the special NDPS court. Dhamecha's lawyer Deshmukh has also moved the High Court.