Bollywood Drug Probe: Executive Producer Kshitij Prasad Seeks Discharge, Says NCB Unnecessarily Trying To Rope In Members Of Film Industry

Prasad was booked for alleged consumption and illicit trafficking of drugs under Sections 8(c) read with sections 20(b)(ii)A, 27, 27A, 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 in 2020.

He is accused in the case along with actor Rhea Chakraborty, her brother Showik and at least 35 others.

In the discharge plea filed through advocate Nikhil Maneshinde, Prasad states that there is no evidence against him and it would be a grave injustice if he is made to undergo a criminal trial. Prasad alleged that the investigation officers had acted in a mala fide manner.

"The said Officer wanted the present Applicant to falsely name certain film directors, producers, actors and actresses as consumers/suppliers of drugs. It was only when the Applicant refused to adhere to the Officers request was the present case filed against the Applicant", the application states.

He added that the original NCB team that received severe flak for arresting actor Shah Rukh Khan's son – Aryan Khan – investigated the case against him and his co-accused, wrongly relying on WhatsApp chats and voluntary statements.

Prasad drew parallels with his case and the case involving Aryan Khan wherein no drugs were recovered and the other evidence was in the form of WhatsApp chats. The NCB didn't pursue the charges in that case. The application invokes Article 14 and states that both cases should be treated similarly and hence the charges against the Prasad, must be dropped.

The application states that the prosecution's case is based on voluntary statements of co-accused persons under section 67 of the NDPS Act, certain WhatsApp chats and transcripts, and an allegedly used joint of ganja found lying in Prasad's balcony. The application relies on previous judgments of the Apex Court to contend that this evidence is inadmissible and insufficient to charge the applicant.

"This is a case of No Evidence, No Recovery, No Possession, No Consumption and the complaint contains legally inadmissible material much less evidence even to come to a conclusion that there is a prosecutable case much less a suspicion to frame a charge against the Applicant," the application states.

Prasad has relied on the Supreme Court judgment in Tofan Singh v. State of Tamil Nadu 2020 SCC Online SC 700 which held that any confessional statements made to officers mentioned in section 53 of the NDPS Act would be barred under section 25 of the Evidence Act and cannot be taken in to account. Hence, the voluntary statements of persons co-accused in the present case are inadmissible. Further, the application has also questioned the credibility of the voluntary statements submitting that several of these statements have been improved upon and changed by the co-accused persons.

With regards to the WhatsApp chats and audio transcripts, the applicant has relied on Punjab and Haryana High Court judgment in Rakesh Kumar Singla v. Union of India which reiterated that in case of reliance being placed on electronic record, certificate under section 65B of the Evidence Act is required. "In the present case, the WhatsApp chats etc. have no evidentiary value as the prosecution has not procured certificate under section 65B of the Evidence Act."

Applicant has contended that recovery of rolled joint from a flower pot is not reliable evidence as it was so minuscule that the prosecution admittedly hasn't even been able to draw two representative samples. Further, there is no material link between the rolled joint and the applicant.

It may be noted that former NCB Zonal director Sameer Wankhede had faced severe flak for the investigation in the Aryan Khan case

The applicant prayed that there is no evidence to involve him in the present matter, hence the applicant be discharged as there is no prima facie case made out against the applicant.

On an earlier date the NCB submitted draft charges against all the 35 accused in the case. The application will be heard in due course.