Sushant Singh Rajput death case: Legal experts say NCB will have ‘uphill task’ proving charges

With no drugs recovered from most arrests recently made by the Narcotics Control Bureau’s (NCB) investigating the drug connection in the Sushant Singh Rajput death case, legal experts say the agency will have a tough time proving its allegations during trial.

While the matter is still under investigation, the agency, in its pleas seeking custodial interrogation of some of those arrested, has cited WhatsApp chats and Call Detail Record (CDR) as evidence of their involvement.

Advocate Ayaz Khan, who has been handling narcotics cases since the past 28 years and has represented actor Fardeen Khan in the 2001 cocaine case, asked, “How can the NCB read minds?” He called the chats only a matter of interpretation and said that finding contraband is important. For instance, he said the NCB may construe a ‘joint’ as ‘hash,’ but it could mean a cigarette to somebody. The chats may show planning of an offence, but what is the proof of the crime, he asked.

“A case cannot begin with confessions and WhatsApp chats. There needs to be physical evidence,” he asserted.

The agency has, however, begun the case with arrests of two persons Abbas Lakhani and Karn Arora, from both of whom very small quantities of drugs were seized (from Lakhani 46 gm marijuana and from Arora 13 gm marijuana).

Shekhar Bhandary, who has been dealing with narcotics cases for over three decades and had represented ex-IPS officer Saji Mohan in a drugs case, called the seizure a ‘fraction’ of what is considered commercial quantity under the NDPS Act. Only seizure of Marijuana of above 20 kg comes under the category of commercial quantity.

He said that for such small quantities, the offences are bailable, since the punishment can extend to less than three years. “Bail is then and there itself in such quantities,” Bhandary said and was confident that in a week’s time all the arrested accused will secure bail.

As for the offence of conspiracy of which Showik and others in the case have been charged under the NDPS Act, he said when the quantities are so small, so is the punishment - a maximum of six months or a year.

The NCB has relied on statements of the accused recorded under Sec 67 of the NDPS Act to arrest other accused. Some of the accused have already retracted their statements and said these were forcefully recorded. Regarding the evidentiary value of these statements, Bhandary said that the statements to the NCB being a central agency are admissible in court, unlike statements given to the police. He felt, however, that the small quantity of contraband seized could spell a doom for the case.

Prominent advocate Rizwan Merchant gave the instance of the case of a Juhu rave party, where youngsters had consumed drugs and he had defended some of them. The youngsters were granted immunity from being tried under the NDPS Act and had undergone detoxification. He said, in this case too, the accused can apply for immunity and that, in his legal practice of 35 years, he has not seen convictions given in narcotics cases on the basis of electronic evidence. “It will not be easy to prove these. There will have to be strong corroborative evidence,” he says. He opined that ultimately the case will fizzle out badly. “It is a high-profile case and the agencies are working under a lot of pressure. But this will reflect badly on them,” Merchant said.

From Zaid Vilatra, one of those arrested, cash and foreign currency was seized. The agency says he has disclosed these are proceeds of sale of contraband. Said Khan that it will be ‘easiest thing’ for Zaid to come up with documents to prove how he got the money, but it will be difficult for the NCB to prove that these were from the sale of drugs.

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