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Updated on: Saturday, November 20, 2021, 10:30 PM IST

FPJ Legal l 'No positive evidence of conspiracy to commit drug-related offences': Bombay HC in its order on Aryan Khan bail

FPJ Legal l 'No positive evidence of conspiracy to commit drug-related offences': HC in its order on Aryan Khan bail  | File Photo

FPJ Legal l 'No positive evidence of conspiracy to commit drug-related offences': HC in its order on Aryan Khan bail | File Photo

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There is prima facie “no evidence” to show that actor Shah Rukh Khan’s son Aryan, his friend Arbaz Merchant and Munmun Dhamecha hatched a conspiracy to commit offence under the Narcotic Drugs and Psychotropic Substances Act for which they were arrested by the Narcotics Control Bureau (NCB) on October 2, says a detailed order of the Bombay High Court.

Also, the court said that their travelling on the cruise liner cannot be said to be sufficient ground to invoke conspiracy charges under the NDPS.

The NCB did not recover anything from Aryan, but claimed to have recovered 6 gm and 5 gm of ‘charas’ from Merchant and Dhamecha, respectively.

Justice Nitin Sambre had granted bail to the trio on October 28. The detailed order copy was made available on Saturday.

“Having regard to the material brought on record by the respondent (NCB) on the issue of conspiracy, this court prima facie has not noticed any positive evidence against the applicants (Aryan, Merchant and Dhamecha) on the said issue,” said justice Sambre in a 14-page order.

The court further observed: “This court is required to be sensitive to the fact that there has to be presence of basic material in the form of evidence, so as to substantiate the case of conspiracy against the applicants. Merely because applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 (of NDPS Act for conspiracy) against them.’’

Reportedly, Aryan and Merchant went to the cruise together, whereas Dhamecha reached separately. The court observed that to hatch a conspiracy, there has to be a meeting of minds between the trio beforehand, which never happened.

The court said: “For inferring the act of hatching a conspiracy on the part of the applicants and other co-accused, there has to be positive evidence about an agreement to do an unlawful act or to do lawful act by unlawful means and such agreement must precede with meeting of minds.”

The NCB had heavily relied on the WhatsApp chats between Aryan and Merchant to show that they were involved in an international drug racket. Referring to the relevant chats, their counsels had argued that those chats were old and were related to football.

Rejecting NCB’s argument, Justice Sambre also said that there was nothing in the WhatsApp chats of the trio to suggest that they were hatching a conspiracy. “After having gone through the chats extracted from Aryan’s phone, nothing objectionable could be noticed to suggest that Aryan and Merchant, or all the three applicants, along with other accused persons in agreement, have a meeting of minds and have hatched a conspiracy to commit the offence in question,” added justice Sambre.

The investigating agency had also contended that the accused had made a confessional statement before the NCB officer of possessing and consuming drugs. Such a confession amounts to an offence under the NDPS Act, the NCB had argued.

The court has clarified that such a confessional statement can be considered by the investigating agency “only for the investigation purpose” and “cannot be used as a tool” to infer that the trio committed an offence under the NDPS Act.

Justice Sambre has said that even if the trio were found guilty after trial, the maximum punishment would be one year. The trio have suffered incarceration for almost 25 days.

Interestingly, the court has observed that the trio were ''not even subjected to medical examination,” so as to determine whether at the relevant time, “they had consumed drugs”.

While granting them bail, the High Court observed that since there is no prima facie case against the trio, “it is difficult to infer that applicants are involved in an offence of commercial quantity.”

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Published on: Saturday, November 20, 2021, 02:50 PM IST
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