Mumbai: WhatsApp chats extracted from the mobile phone of Aryan Khan disclose “nothing objectionable” nor is there any evidence to show he and his friend Arbaaz Merchant or Munmun Dhamecha and other co-accused had hatched any conspiracy to commit drug offences, and they had already been behind bars for 25 days, said the Bombay high court in its reasoned order for granting them bail on October 28 made available on Saturday.

“Applicants were not even subjected to medical examination so as to determine whether at the relevant time, they had consumed drugs,” said Justice Nitin Sambre, whose reasons for giving bail came a month after special NDPS judge V V Patil at sessions court had found the same chats showing “reference to bulk quantity and hard drugs”.

It is not in dispute that Khan (23), son of actor Shah Rukh Khan, was not found in possession of any drug, the reasoned order read. Nor is it in dispute that the quantity of drugs allegedly seized from Merchant (26) and Dhamecha (28), to whom too HC granted bail, “is small quantity”.

The Narcotics Control Bureau (NCB) had arrested the trio on October 3 following its October 2 raid at the city’s international cruise terminal.

The NCB had said it seized 6 gm of charas from Merchant at the terminal gate. Merchant, it said, planned to smoke it and since he was travelling with Khan, it was in Khan’s “conscious possession”. Five grams of hashish was seized from Dhamecha’s cabin.

----------------------

Mumbai: The HC in its reasoned order-granting bail to Aryan Khan and 2 others observed that the NCB seizure is small quantity and said, “Even if it is appreciated, the maximum punishment prescribed is not more than one year for such offence. Applicants have already suffered incarceration for almost 25 days.”

The HC issued the bail conditions and set the bond amount on October 29. Khan was released from Arthur Road jail on October 30, followed by Dhamecha and Merchant the next day. Aryan Khan was invited as a guest on the cruise by the event organiser.

The HC in its 14-page order said it is “required to be sensitive to the fact that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the applicants.” Merely because the applicants were travelling on the cruise, “that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 (conspiracy) against the trio,” the HC reasoned.

It rejected NCB’s submissions made through additional solicitor general Anil Singh that there was conspiracy and since “cumulatively commercial quantity of drugs was seized from the accused persons,” the “intention” of the trio to commit offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act should be considered and bail denied.

Khan’s counsel -- Mukul Rohatgi, Amit Desai and Satish Maneshinde -- and Merchant’s counsel -- Desai and Taraq Sayed -- had argued that for an offence of conspiracy, there has to first be a consensus via “meeting of minds’’ before the act is committed, and here there was none. The ASG had said conspiracies are difficult to prove at the bail stage.

None of them, the two students and, Dhamecha, a model from MP, have any criminal antecedents, the order said. Dhamecha’s lawyer Ali Kaashif Khan argued she too was invited as a guest for the party on the two-day cruise from Mumbai to Goa.

Justice Sambre said that to infer an act of conspiracy on part of the trio with other coaccused in the case, “there has to be positive evidence about such an agreement to do an unlawful act or a lawful act by unlawful means and such agreement must precede with meeting of minds.” His order noted, “There is absence of material on record of them having such meeting of minds with other accused who were named in the offence in question.”

There is “hardly any positive evidence to convince this court that all accused with common intention agreed to commit unlawful act,” said the order, “Rather the investigation carried out till this date suggests that (Aryan and Arbaaz) were travelling independent of (Dhamecha) and there was no meeting of minds.”

“There is no material on record to infer that applicants have hatched conspiracy” to commit a drug offence, hence it is difficult to infer at this stage that they are involved in an offence of commercial quantity, hence a stringent provision like Section 37 which places greater checks on courts before granting bail “would prima facie not be attracted to the case.” “It is difficult to infer that applicants are involved in an offence of commercial quantity,” said Justice Sambre.

Justice Sambre clarified that ‘confessional statements’ recorded under Section 67 of NDPS Act can be considered only for investigation purpose and “cannot be used as a tool for drawing inference that the applicants have committed an offence under the Act.”

The trio’s counsel had cited the Supreme Court ruling in the Toofan Singh case, which said NCB officers are also police officers and confessional statements recorded by them are not admissible evidence. The HC rejected NCB claims that Khan and the two others had, via their statements, “accepted” their involvement.

The arrest sans a notice first was illegal said Desai, but stating Section 37 makes all offences ‘cognizable and non-bailable’, no such notice under Section 41A of Criminal Procedure Code was required and the arrest was legal, the HC order noted the ASG as saying.

----------------------

The Bombay High Court issued a detailed copy of the bail order granted to Aryan Khan in the cruise drug case on Saturday. In the order, the HC said that no substance was found on Aryan, and that there was no evidence of any conspiracy against him or his co-accused Arbaaz Merchant and Munmun Dhamecha to commit drug-related offences.

The court also said that nothing objectionable was found in the conversation between the accused on WhatsApp. “There is hardly any positive evidence on record to convince this court that all the accused persons with common intention agreed to commit the unlawful act,” the order read.

The NCB had argued in the court that the accused had confessed that they had consumed drugs. Clarifying this point, the HC wrote in the order that statements containing such confessions are meant to help the investigating agency. “But, you cannot [use this to] show that the applicants have committed an offence under the NDPS Act.”

The court also said that the NCB had not done a medical checkup of the three accused, which would have proven whether they had actually taken drugs at the same time. Aryan was arrested by the NCB on October 2. He was allegedly accused of attending a drug party on a cruise travelling from Mumbai to Goa. The NCB had arrested 20 more people, including Merchant and Dhamecha, along with Aryan. Aryan got bail from the High Court on October 28 after spending three weeks in Arthur Road Jail.