Aryan Khan's Knowledge Of Charas Being Hidden In Arbaaz Merchant's Shoe Amounts To 'Conscious Possession' Of Contraband : Mumbai Court

 Aryan Khan was in "conscious possession" of illegal drugs even though the Narcotics Control Bureau didn't recover anything from him during the raid, a Special NDPS Court said rejecting his bail application.

Special Judge VV Patil rejected bail to Khan, model Munmun Dhamecha and Arbaaz Merchant yesterday in the cruise ship drugs case.

The court observed that Khan apparently knew his friend Abaaz Merchant was hiding charas (6 gms) for them to consume on the cruise, and therefore, it would amount to both them being in conscious possession of the drugs.

The NCB apprehended Khan and Merchant together at the international departure terminal before they could board the Cordelia Ship Cruise on October 2. The NCB allegedly recovered six grams of charas from Merchant's shoe.

"In the present case also though no contraband is found in possession of accused no. 1 (Aryan Khan), six grams of charas was found in possession of accused no. 2 (Arbaaz Merchant) which Khan was having knowledge, thus it can be said it was in conscious possession of both the accused," the court said.

The court relied on Khan's voluntary statements under section 67 of the NDPS Act in which they have allegedly said that contraband with Arbaaz Merchant was for their consumption and enjoyment.

"Admittedly, Aryan Khan & Arbaaz Merchant are friends since long. They traveled together and they were apprehended together at the international cruise terminal. Further, in their voluntary statements, both of them disclosed that they were possessing the said substance for their consumption and for enjoyment. Thus, all these things go to show that 1(Aryan Khan) was having knowledge of contraband concealed by 2 (Arbaaz Merchant) in his shoes."

In the order, Special Judge VV Patil relied on the case of Nawaz Khan, where the Supreme Court refused bail based on the recovery of commercial quantity of illicit drugs from the private vehicle the man was travelling in along with others.

In Nawaz Khan's judgement, the court held that the absence of possession of the contraband on the person does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act for bail.

The court rejected Khan's counsel's submission that since no narcotics drugs were recovered from him, therefore, he is innocent. Khan's counsels had argued that rigours of section 37(1) of the NDPS Act would not apply, since, assuming NCB's case to be true, the allegations pertained to small quantities of drugs.

The court observed that since section 29 (conspiracy) was applied in the case, the conditions for bail under section 37 would be applicable.

The court further relied on the Bombay high Court's order in Showik Chakraborty's case that since accused are part of the conspiracy, each of them is liable for the entire quantity of drugs seized. And no case can be seen in isolation.

"Moreover, WhatsApp chats prima facie reveals accused Aryan Khan is dealing in illicit drug activities for narcotic substances on regular basis. Therefore, it cannot be said that Khan is not likely to commit similar offence while on bail", the court held.

Background

Khan, Dhamecha and Merchant were arrested on October 3, following a raid at the international departure terminal of a Goa-bound cruise the previous day.

They are booked under sections 8(c) read with 20b (purchase), 27 (consumption), 28 (attempt to commit offence), 29 (abetment/ conspiracy) and 35 (presumption of culpable mental state) of the NDPS Act, after six and five grams of charas was allegedly seized from his friend Merchant and model Dhamecha respectively.

Khan and Munmun Dhamecha have already approached the Bombay High Court for bail.

Click here to read/download the order