Prima Facie Legal Bar Under PCA: Bombay High Court Protects Former NCB Officer Sameer Wankhede From Coercive Steps In Extortion Case Till Monday

The Bombay High Court today directed CBI not to take any coercive action against former Narcotics Control Bureau officer Sameer Wankhede in Rs 25 Crore extortion case regarding the arrest of Aryan Khan in the 2021 Cruise Ship Drugs Case.

A vacation bench of Justice Sharmila Deshmukh and Justice Arif Doctor said that prima facie, there is a bar under section 17A of the Prevention of Corruption Act requiring the inquiry to be conducted within four months of the alleged offence, which occurred in 2021.

“Prima facie there is a legal bar under 17A of the PC Act and since a 41A notice is issued in the case...no coercive action against the petitioner till the next date Monday”, the bench stated in its order. 

The court also recorded an undertaking by Wankhede and his advocate Rizwan Merchant that Wankhede will appear before CBI office at Bandra Kurla Complex tomorrow at 11 am.

Wankhede, currently an IRS Officer, has approached the High Court challenging the FIR registered against him and five others by the CBI. The agency has accused them of demanding a bribe of Rs 25 crore from family members of those arrested in the 2021 Cordelia Cruise Ship Case, including actor Shah Rukh Khan’s son Aryan Khan.

Today, Advocates Rizwan Merchant, Faiz Merchant, and Faisal Shaikh for Wankhede sought interim protection for Wankhede from being arrested in the case.

Advocate Kuldeep Patil appearing for CBI opposed the plea, pointing that Wankhede has an alternative remedy. "He should seek anticipatory bail," Patil said.

Hearing this, the bench asked Wankhede why he didn't approach the Sessions Court.

Merchant responded, "I can't get an order of the abuse of process from the Sessions Court. They want to put an IRS officer in jail. That has to be prevented. They are going to demoralise the entire force."

Merchant argued that as per Section 17A of the Prevention of Corruption Act, CBI had to conduct the inquiry within four months from the offence which wasn't done.

However, Patil argued that the four months period starts from the date of approval from the Central Government to conduct an enquiry against the public servant, which was obtained just two days earlier.

Patil said that the CBI may not even arrest Wankhede, but he has to co-operate. Wankhede can't be granted a blanket order against arrest as the discretion to arrest lies with the Investigating Officer, Patil argued. He said the investigation will be hampered if Wankhede is protected from arrest.

The bench noted that a notice under section 41A of the CrPC has been issued to Wankhede and Wankhede has said he will cooperate and granted his protection till the next date, i.e., May 21.

Wankhede claims in his petition that he led the investigation in the Cordelia Case under the specific orders of his superiors in NCB including Deputy Director General Gnaneshwar Singh.

The CBI FIR is based on Singh's report as head of the SIT in the Cordelia Cruise Ship Case.

However, Wankhede has said that Singh heading the SIT was itself an anomalous situation as he was enquiring into his own conduct.

"In his (Gnaneshwar Singh's) mala fide resolve to cover up his own tracks, has been harassing Petitioner ever since & has not stopped even after Petitioner left(NCB)," the plea states.

He says that the Maharashtra police investigated four complaints against him but found no substance.

Significantly, Wankhede states that a draft complaint (charge sheet) was prepared by the Department Legal Advisor, Mr. Japan Babu whereby charges were proposed against Aryan Khan and various sections were included in the draft complaint against him.

"However, the said. draft complaint never came to be filed on record and in fact, it was replaced with a separate draft complaint prepared from outside, which fact was also confirmed by the DLA on a telephone call with the Petitioner on 2nd June," he claimed regarding the final clean chit to Khan.

Background

Wankhede had earlier approached the Delhi High Court. However, he withdrew the plea on Wednesday after the CBI raised a preliminary objection regarding the maintainability of the plea.

In his Delhi plea, Wankhede sought a fair investigation, quashing of the FIR against him and the registration of a “cross-FIR” based on his version against, Vishwa Vijay Singh, then Superintendent (NCB); Ashish Ranjan, then Intelligence Officer of Mumbai Zonal Unit (NCB); K P Gosavi, a panch witness in the Cruise Case and Sanvile D’Souza. As an interim direction, he prayed that no coercive steps be taken against him.

Wankhede is a 2008-batch IRS officer from the reserved category. As former head of the NCB Zonal Unit, Wankhede had led raids where the Cordelia Cruise Ship was docked on October 2, 2021.

In the raid, the NCB claimed to have seized 13 gm of cocaine, 5 gm of mephedrone, 21 gm of marijuana, 22 pills of MDMA and Rs 1.33 lakh cash in the raid, and arrested 17 people, including Aryan Khan. However, following allegations of bribery and extortion, the case was transferred to a Special Investigations Team of the NCB.

The SIT gave a clean chit to Khan and five others last year. Panch witness Prakhakar Sail who detailed the alleged extortion in an affidavit died of a cardiac arrest in April last year.

The Bombay High Court said in its order granting bail to Khan and the other two on October 28, 2021, that prima facie there was no evidence on record to infer that Aryan Khan and his friend Arbaaz Merchant conspired to commit offences under the NDPS Act.

(Compiled by Amisha Shrivastava)

Case Title: Sameer Dyandev Wankhedev vs Union of India [Writ Petition (ST) No. 9645 of 2023]

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