'No Evidence Of Conspiracy, A Case Of Personal Consumption, Maximum Punishment Is One Year': Amit Desai Argues In Aryan Khan Case In Bombay HC

The Court is hearing the bail applications filed by Aryan Khan, Arbaaz Merchant and Munmun Dhamecha in the cruise ship drug case. Live Updates from hearing before Justice NW Sambre here.

Desai vehemently denied the allegations of 'conspiracy' for illicit trade of drugs and submitted,

"Three people individually going on a vessel and deciding to consume is not a conspiracy."

He cited Abdul Rehman Fakir Mohd. Durani v. State Of Maharashtra judgement of the Bombay High Court where it was held that "meeting of minds" is necessary to prove conspiracy.

He further submitted that all three accused had arrived at the venue individually and "Even those who apprehended them (accused), treated them as coming there individually. Punishment for which is one year."

Senior Advocate Mukul Rohatgi is appearing for Aryan Khan. Read his arguments here.

The arguments raised on behalf of Arbaaz Merchant are as follows:

Case of personal consumption only

Desai contended that the three are not accused of 'use' as defined under the NDPS Act as per the arrest memo. "No allegation in the arrest memo of 'use'. So there was a clear understanding that this was a case of nothing more than personal consumption," he said.

He relied on the panchnama in which Arbaaz is alleged to have voluntarily taken out the charas hidden in his shoe and admitting it was meant for consumption. Assuming that the confession recorded in panchnama is true, Desai said, "still it is only small quantity for sake of consumption."

He added,

"Far more incriminating material is said by others in their 'inadmissible' voluntary statements about purchase and sale. "But mine is only about consumption."

Notice of appearance under CrPC should have been issued

Desai argued that since the offences alleged are punishable with less than one year, a notice of appearance under Section 41A of CrPC should have been issued, asking them to join the investigation.

Thus, relying on the Arnesh Kumar judgment, it was argued that the impugned arrests are illegal. Desai submitted,

"In minor offences, arrest is the exception. This is the diktat of the Arnesh Kumar judgment. And this is the change in approach of the police… Bail is the rule and jail is the exception. Now it has become 'arrest is the rule and bail is the exception'."

Arrested for an offence which was never committed

Desai pointed out that in criminal law jurisprudence, there are three stages— intention, attempt and then offence.

However, they were arrested from the Terminal and no offence was committed. "This entire panchnama resulted in the aborting of the activity… The intention to consume also should not apply as no medical test was done."

Another guest allegedly found in possession of contraband granted bail by Special Court

Desai pointed out that yesterday, the Special NDPS Court granted bail to Manish Rajgaria and Avin Sahu, guests on the same cruse ship. He highlighted that 2.4 gms of ganja was recovered from one of them.

"They had come independently. I am not saying parity but I am saying liberty."

Nothing in WhatsApp chats

"What is abundantly clearly is that there are no WhatsApp chats that connect conspiracy to the rave party... they date three and six months back..." Desai said. He added,

"The fundamental thing is if all these (chats) are going to be treated as confessions, then such type of evidence has already been discarded by Justice Dere in a judgement."

He also objected to leaking of the chats to the media, even before it was put on the court's record.

It was also submitted that the Punjab and Haryana High Court, while presiding over a NDPS matter, had held that WhatsApp chats are inadmissible without certificate issued as per Section 65B of the Indian Evidence Act. "Digital evidence has to be verified," Desai said.

It was also contended that there is no seizure panchnama of the phones. "They argued phones were voluntarily handed over. But with personal devices it is important to have a memo for veracity", he argued.

Compiled by Akshita Saxena