'Aryan Khan Not A First Time Offender; Attempted To Deal In Commercial Quantities': ASG Anil Singh Argues For NCB In Bombay High Court

The hearing is ongoing. Live updates here.

ASG Anil Singh, appearing for the anti-drugs agency said,

"He is a regular consumer for the past few years and the record shows that he has been providing drugs. And there is a reference of bulk quantity and commercial quantity of drugs. He has been in contact with drug peddlers."

The submission was made before Justice NW Sambre who is hearing the bail applications filed by Aryan Khan, Arbaaz Merchant and Munmun Dhamecha in the cruise ship drug case.

The Court today asked the anti-drug agency as to what is the basis for saying that Aryan Khan dealt with commercial quantity.

To this, ASG Singh responded, "The WhatsApp chat will show he made an attempt to deal with commercial quantity, that's all."

He pointed out that when Khan was apprehended, multiple drugs were found from 8 people (of the 11 people named in the secret note received by the agency).

"So, you are saying cumulative effect should be given?" the Court asked.

"It has to be investigated… cumulative drug quantity was of commercial quantity," the ASG responded.

Broadly, the NCB's case is that the trio was found in possession/ conscious possession of contraband, Khan's WhatsApp chats show he was a regular consumer of drugs and has international links.

Accordingly, the accused were arrested on October 3 and have been charged with 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.

Read Aryan Khan's arguments here; Arbaaz Merchant's arguments here.

NCB's Arguments

Conscious Possession of Drugs

It is NCB's case that though nothing was recovered from Khan's person, he was in "conscious possession" of the contraband owing to his connection with his friend Arbaz Merchant (from whom 6 gms charas was recovered).

"If two people are travelling together, and the first person is knows the drug is with the other and it is for their consumption...Though the person may not be in actual physical possession, he may be in "conscious possession"," Singh submitted.

He added, "Aryan and Arbaaz are childhood friends. They travelled together; they were going to be put up in the same room."

He relied on the case of Showik Chakraborty v. Union of India, where bail was denied in a case of alleged procurement of drugs, despite no recovery being made from Showik's person.

Further, referring to sub-section (c) of Section 8 (Prohibition of certain operations) of the NDPS Act, he said,

"The scope of section 8(c) is very wide. Therefore, there may be a case that the person has not consumed the drug but is found in possession, 8(c) will apply."

Accused were admittedly going to have "a blast" at the cruise party

ASG Singh referred to the seizure panchnama as per which Aryan Khan had admitted that the contraband found from Arbaaz was meant for smoke during the cruise journey. "And they say they are going inside to have a "blast"," he added.

No need for Medical Test of accused

Clearing air on the issue as to why medical tests of accused were not conducted, Singh said,

"They are saying we haven't tested for consumption. Where is the question of testing when they haven't consumed it? They were found in possession. It is our case that Aryan Khan was found in conscious possession of the drug."

WhatsApp chats admissible

ASG Singh on behalf of NCB argued that in the accused' WhatsApp chat there is a specific reference to bulk quantity, and that Khan is not a first-time consumer.

Regarding admissibility of the chats, the ASG said they have a 65B certificate as required under the Indian Evidence Act and the chats are thus admissible.

Voluntary statements of accused can be used at investigation stage

Khan had contended that NCB's case is based on "voluntary" statements given under Section 67 of the NDPS Act, which are inadmissible in evidence as per last year's Supreme Court judgment in the Tofan Singh case.

Controverting this submission, the ASG submitted that the question of admissibility of section 67 statement will apply only at the time on trial, not investigation.

Case of conspiracy

A day after Khan was remanded to NCB's custody, the agency invoked the charge of conspiracy under Section 29 of NDPS Act against all accused.

ASG Singh referred to subsequent arrests of several suppliers to claim that all the accused persons form a part of a "larger chain", nexus and their involvement in a conspiracy to commit illegal acts and violations under Section 29 cannot be ruled out.

He added,

"The object of (section) 29 is that the drug may not be found with the person but he still may have conspired. Under section 35 (culpable mental state) of NDPS you don't have to prove mens rea, there is a presumption."

The ASG indicated that when Khan was arrested, 8 other people were found in possession of drugs. This, he said, hints towards a conspiracy, which requires to be investigated.

"When I say conspiracy, I calculate drugs of all persons, then it comes to that."

He added that the offence of Conspiracy is difficult to prove as only the conspirators know how they have conspired.

Charge of conspiracy mentioned in Remand

Yesterday, counsels appearing for the accused had alleged that the first remand application did not talk about conspiracy and the Court, at the time of the first remand, was misled into believing that the accused were also charged under section 28 and 29 of the NDPS Act.

In this backdrop, the High Court inquired from NCB as to why the charge of Sections 28 and 29 were not mentioned in the remand application.

To this, the ASG explained that the first remand was four hours after the arrest and Sections 28 and 29 were added to the remand application then.

Arrests not illegal

Yesterday, Senior Advocate Mukul Rohatgi appearing for Aryan Khan had alleged that Khan's arrest was illegal as the memo of arrest did not give true and correct grounds for arrest, which is contrary to the requirement under Section 50 of CrPC and Article 22 of the Indian Constitution.

Responding to this contention, ASG Anil Singh submitted, "The arrest memo mentions commercial quantity and it mentions that he had consumption with commercial quantity."

He added, "Three remand orders of the magistrate have not been challenged. So now the accused cannot say the arrest is illegal… They must satisfy the court that the Magistrate has not taken all the factors into consideration while passing the remand order. But here the remand is only not challenged."

Reliance was placed on Supreme Court's order in Pragya Singh Thakur's case.

"They are all on the same point. That if by a valid judicial order, a remand has been given...then not informing grounds of arrest cannot be claimed."

Bail not a rule in NDPS matters

ASG Singh insisted that "bail is not a rule" in NDPS cases. He relied on the Supreme Court judgement in Ramsangh to say that in NDPS offences, "custody is the rule, bail is the exception".

He further relied on State of Kerala v. Rajesh to argued that the rigours of Section 37 against grant of bail will apply. In this case, the Top Court had observed that there cannot be liberal approach in the matter of bail in NDPS cases.

Accused influencing witnesses

NCB has alleged that in an attempt to derail the investigation, the accused had influenced panch witness Prabhakar Sail, leading to allegations of extortion on NCB officers.

The Mumbai Police has now ordered a probe against NCB's Zonal Director Sameer Wankhede in this regard.

Munmun Dhamecha possessed drugs

Singh alleged that Munmun threw the drug when she got to know the ship will be raided. "We have CDR records to show she was in touch with Ishmeet (a peddler).

The statements of Baldev and Mummum(voluntary statements ) state she had the drug.

Compiled by Akshita Saxena