The Evidentiary Irregularities In Aryan Khan's Bail Order

On 20^th October, Special Judge V. V. PATIL denied bail to Aryan Khan accused of committing offences under sections 8(c) r/w 20(b), 27, 28, 29 and 35 of Narcotics Drugs and Psychotropic Substances Act, 1985. The prosecution alleged that Aryan Khan and his friend were apprehended together by the NCB at the International Cruise Terminal with his friend having 6 grams of Charas concealed in his shoes. The bail application of Aryan Khan was primarily rejected because of two reasons.

First, the NCB officials recorded voluntary statements under Section 67 of the Act which disclosed that Aryan Khan and his friend admitted that they were possessing the said substance for their consumption and enjoyment. This led the court to hold that Aryan Khan was in conscious possession of the said substance or, in other words, was having knowledge of the said substance. Second, the Whatsapp chats of Aryan Khan revealed that he contacted several foreign nationals and unknown persons who are suspected to be part of an international drug racket. For both reasons, it appears that the Court didn't follow the precedents and the established principles of law.

Voluntary statements of Aryan Khan have no evidentiary value

Countering the first reason, the Court relied upon the statements of Aryan Khan made to the NCB officials. In relying upon these statements, the Court didn't take into account the principle established in the case of Tofan Singh v. State of Tamil Nadu [Criminal Appeal No.152 Of 2013] wherein it was held that the NCB officials are "police officers" and thus, any confessional statement made to them would be inadmissible in Court by virtue of section 25 of the Evidence Act. This principle was invoked even at the stage of grant of bail in the case of Shivaraj Urs vs Union Of India [Criminal Petition No.6322 OF 2020], wherein when the prosecution relied upon the voluntary statements of the accused made to the NCB officials, the court heavily relied upon the case of Toofan Singh [supra] and granted bail to the accused charged under Sections 22, 28, 29 & 32b(a) of the NDPS Act. Thus, the court couldn't rely upon the confessional statements of Aryan Khan made to the NCB officials.

Whatsapp Chats have no evidentiary value

Now, moving on to the second reason. The Court relied upon the Whatsapp Chats of Aryan Khan with the other persons to hold that he conspired with other illegal traffickers including other accused of committing the offences prescribed under the NDPS Act. Now, the copies of Whatsapp Chats are electronic evidence and thus, come into secondary evidence. Section 65B of the Indian Evidence Act engrafts the procedure regarding the admissibility of electronic records. It mandates that a certificate must be submitted along with copies. The purpose of this procedure is to sanctify secondary evidence in electronic form, generated by a computer. Recently, the Supreme Court in Arjun Panditrao Khotkar v. Kailash KushanraoGorantya  reaffirmed the decision of P.V. v. P.K. Basheer[(2014)10 SCC 473] wherein it was held that the secondary evidence of electronic record would be inadmissible if not accompanied by a certificate stipulated under section 65B of the Indian Evidence Act, 1872. Now talking about the stage of grant of bail, the Punjab and Haryana High Court in the case of Rakesh Kumar Singla v. Union of India [CRM-M No. 23220 of 2020] had extended the requirement of submitting a certificate along with electronic evidence while deciding a bail application. It was held that without such a certificate the evidence would not hold any value in the eyes of law. However, again, the court didn't follow this evidentiary mandate and proceeded to rely upon these conversations.

No evidence of conspiracy by Aryan Khan

Relying upon the Whatsapp Chats which has no evidentiary value, the Court concluded that just because he conversed in the past with unknown drug suppliers and peddlers and named the supplier who had supplied charas to them during interrogation, all these facts prima-facie show that the accused acted in conspiracy with each other. While making this observation, the Court went beyond the scope of the meaning of 'conspiracy'. The term 'conspiracy' is not defined under NDPS Act. The Indian Penal Code defines 'conspiracy' as an agreement wherein two or more persons agree to commit an illegal act. Now, section 29 punishes a person if he or she, either abets or becomes a party to a criminal conspiracy to commit an offence under NDPS Act. Now, does it mean that if two or more persons agree to commit an offence under NDPS Act, then they are both liable under Section 29 of the Act? Well, if they are, then nearly all persons charged under this Act would be covered under this provision because of the reason that the act of acquiring the contraband does not happen in isolation. There is always a seller and a buyer. Moreover, it appears that the court has accumulated the past acts of the accused to hold that he is liable for conspiracy. Every act must be seen in isolation until it is alleged that the past acts are connected with the present act and all the accused were aware of such conspiracy. Surely, this is not the case in Aryan Khan's Case. All the past acts constitute separate offences and must be prosecuted separately. Unfortunately, for the past acts, the NCB has only the Whatsapp chats which again have no evidentiary value.

Further, the Court has not pointed out any single fact which connects the accused with the other accused persons in forming the conspiracy. To prove the offence of conspiracy, it is an essential condition to prove that all the accused persons agreed together to commit an offence or had the common intention to commit such an offence. Just because some separate offences were being committed at one place does not indicate at all that all the persons conspired together. Surprisingly, the NCB did not find any single Whatsapp chat which can prove the conspiracy with other accused persons. Despite this, the Court held that the prosecution has a prima facie case against the Aryan Khan that he was a party to the conspiracy. This was observed despite the fact that the prosecution has not put forth single evidence of conspiracy with other accused persons

Most importantly, the Court in para 28 of the Order, mistakingly relied upon the case of Showik Chakraborty v. Union of India [Criminal Bail Application No. 2387 of 2020] for invoking Section 29 of the Act in the present case. The Court held that the Showik Case has identical facts and thus, section 29 can be invoked in the present case. In the Showik Case, the accused was found to be in connection with a co-accused i.e., Anuj Keshwani who was found to be in possession of commercial quantity. However, in the case of Aryan Khan, the Court did not point out any connection of him with the co-accused who was found to be in possession of commercial quantity.

Well, since the court had invoked Section 29 of the Act against all accused persons, and one of the accused was apprehended with commercial quantity, it made the court to invoke the wrath of Section 37 against all the accused persons. Section 37 states that if any person is apprehended with commercial quantity, then he shall not be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. There have been only speculations about the involvement of the accused in conspiracy and abetment, but none of these allegations is supported by any evidence having evidentiary value.

Conclusion

It is quintessential to curb the illicit use and misuse of narcotics and drugs, but this aim cannot be achieved by flouting the principles of the criminal justice system. Wilhelm Reich had said, "You think the end justifies the means, however vile. I tell you: the end is the means by which you achieve it." Whether Aryan Khan is guilty or not, justice will only be served if the means to achieve justice are fair.

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