Aryan Khan Bail : Jurisdiction With Special Court As Offences Against Co-Accused Punishable With More Than 3 Yrs, Says Magistrate

A detailed 15-page order copy was made available on Saturday.

Additional Metropolitan Magistrate RM Nilekar observed that the allegations against the individual accused could not be separated or bifurcated at this stage since they were booked in a single case.

The Court noted that while Khan, Arbaaz Merchant and Munmun Dhamecha were booked under sections 8(c), 20b, 27, 28, 29 and 35 of the NDPS Act, several others are booked for possession of intermediate quantities, commercial quantities and financing, the punishment for which if more than three years.

The court said section 36A of the NDPS Act states that all offences under this act which are punishable with imprisonment for more than three years shall be triable only by the special court constituted for the area in which the offence has been committed.

"If considered section 36A of NDPS Act and the fact that the present accused along with other accused were arrested in one crime under the various provisions of the NDPS Act for which prescribed punishment is for more than 3 year or the alleged offences are exclusively triable by the special court. Therefore this court ceases its jurisdiction to entertain the application for bail.

Hence the cited decisions filed by the counsel for the accused are of no use to them as the facts and circumstances of the present case in hand and decisions cited are different from each other and the same are related to the powers of the Sessions Court and the High Court, the court observed.

"It is the fact that intermediate quantity, as well as commercial quantity of narcotic drugs and psychotropic substance, was alleged to be recovered from the other accused for which punishment prescribed is more than three years.

Considering all these aspects the bail applications filed by the accused are not maintainable before this court and the same are required to be rejected."

Arguments on Maintainability

Khan argued that the magistrate was empowered to hear his application as there was no material against him. Moreover, the magistrate could consider his application under section 437 of the CrPC.

Advocate Satish Maneshinde had relied on the judgement in Sanjay Narhar Malshe v. State Of Maharashtra to argue that the court is governed by section 437 of the CrPC and while there are several offences that are triable by special courts but, bail can still be considered by the Magistrate's court.

The NCB however claimed that Section 36A of the NDPS Act, which provides that all offences attracting imprisonment for over 3 years are triable by the Special Court would be applicable in this case.

ASG Anil Singh assisted by SPP Advait Sethna and Shreeram Shirsat relied on the case of Rhea Chakraborty v. Union of India, to argue that all the offences under the NDPS Act are cognizable and non-bailable, hence triable exclusively by a Special Court.

Singh referred to the case of TK Latika v. Seth Karsandas Jamnadas, to argue that this preliminary issue be decided first, since, if the court comes to the conclusion that the application is not maintainable, then there is no point in going into the merits of the case.

ASG claimed that Sanjay Nahar Malshe's case supports the NCB's case that only Special Court is competent to hear the matter.

"The sum and substance of the judgement is...If there is no bar under the Act, the Magistrate can consider bail. But when there is a bar like under Section 36A of the NDPS Act, it will go to the special court," he had said.

Advocate Sayed, appearing for Arbaaz Merchant, and Advocate Ali Kashif Deshmukh for Dhamecha had opposed NCB's stand.

"They may choose to say that the special court can try the offence. But this court's role is not limited to remanding the accused. The court is supposed to analyse the evidence and the court has the power to even discharge me, if no evidence is found," Sayyed had argued.

However, the ASG had submitted, "If your lordships can grant remand doesn't mean your lordship can grant bail. It will have to go before the special court for that."

He stated that in the case of Harsh Shailesh Shah (supra) cited by Maneshinde where an

Background

On October 2, NCB's zonal director Sameer Wankhede led a team of officers for a raid at the International Terminal of Mumbai Port Trust from where the Cordelia Cruise liner was to depart for Goa.

Eight people were detained after the NCB allegedly seized intermediate and small quantities of cocaine, MDMA (ecstasy), charas and Rs 1,33,000 cash.

Khan, Merchant and Dhamecha were the first to be arrested. They were 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 Merchant and Dhamecha respectively.

Nothing was recovered from Khan. The NCB claims to have retrieved WhatApp chats for drugs.

So far, the NCB has arrested 18 people in the case and recovered commercial quantities of drug as well.

The agency arrested several individuals after the cruise, that was allowed to set sail following the raid, returned from Goa, on Monday.

Those arrested include 10 guests, four event organisers, three alleged suppliers and one consumer. Nine people are booked under the stringent section 27A of the NDPS Act for financing illicit traffic and harbouring offenders attracting a 20-year jail term.