Presence On Same Cruise Not Proof Of Conspiracy With Co-Accused: Special Court While Granting Bail To Two Guests In Aryan Khan Drugs Case

Special Judge VV Patil, who had earlier denied bail to the trio for alleged conspiracy, granted bail to Manish Rajgaria and Avin Sahu and said,

"There is no evidence against the present applicant in respect of conspiracy. Therefore, merely because bail applications of co-accused are rejected, bail application of the present applicant cannot be rejected by applying same analogy...Merely because applicant was present on the Cruise, he can not be said to be acted in conspiracy with co-accused."

The Judge was of the opinion that the role attributed to the present accused is different than role attributed to Aryan Khan, Arbaaz Merhcant and Munmun Dhamecha.

"Thus, no prima-facie case of conspiracy and abetment is made out against the applicant as alleged by the prosecution," the Court said.

Rajgaria and Sahu were guests on the cruise ship. The former is accused of possessing 2.4gms of ganja, and the latter is accused of accepting that he consumed contraband twice on the ship.

The two were booked for consumption, possession and conspiracy under section 29 and were arrested after the cruise ship returned on October 4.

This is the first instance of bail granted in the case.

Bail to Sahu

So far as allegations regarding consumption of Ganja by Sahu is concerned, the Court noted that the agency is relying on the statement made by him u/s. 67 of the NDPS Act whereas the Apex Court in case of Toofan Singh had ruled that such statements have no evidentiary value in trial.

The SPP had however contended that such statements may be used at investigation stage.

On this point, the Court was of the opinion that even if SPP's submission is accepted, there must be some other prima-facie evidence supporting to the case of the respondent.

"Therefore, it is necessary to be seen whether in the present case except the statement of the applicant recorded under section 67 of NDPS Act, there is other prima-facie evidence on record to show the complicity of the applicant."

The Court then found that the agency failed to produce on record any evidence to show that Sahu was either in contact with or connected with the co-accused. It further noted that there is "absolutely no evidence" against him for conspiracy.

It said,

"As argued by Ld. Adv. for the applicant, case of the present applicant is different from case of the accused no.1, in that, present applicant has no whatsapp chats, no connection with any of the accused. He has not disclosed name of any accused or peddlers, he has no connection with drug peddlers. There is absolutely no evidence against the applicant regarding conspiracy. Ld. SPP failed to point out any circumstances, during argument, which will show the nexus of the applicant with any co-accused to prima facie make out the ingredients of the conspiracy. Merely because applicant was present on the Cruise, he can not be said to be acted in conspiracy with co-accused."

Bail to Rajgaria

So far as case of Rajgaria for possession of contraband is concerned, the Court observed,

"His statement u/s. 67 of NDPS Act was recorded in which he admitted that he was possessing contraband and he handed over it to Security Officer Gajanan Patil, who produced it before NCB officers. Thus, it is clear that contraband was not directly recovered from the possession of the applicant but it was recovered from Security Officer Gajanan Patil."

Not likely to flee or hamper investigation

The Court observed that there are no criminal antecedents against the applicants. Further, they undertake to not influence any witness or tamper with the evidence the prosecution.

It further noted that the applicants are permanent residents of Orissa and hence are is not likely to abscond or from justice.