Aryan Khan MUMBAI: Arguing for actor Shah Rukh Khan’s son Aryan Khan ’s bail plea in the drug seizure case, former attorney general Mukul Rohatgi told the Bombay high court on Tuesday that Aryan was not in “conscious possession” of the contraband allegedly seized from a friend’s shoe.Questioning the finding by the judge of a special court handling drug cases that Aryan was in “conscious possession” of contraband found with a friend, Rohatgi said the surmise was “tenuous and farfetched”.“Possession of somebody else cannot be my possession unless there is control and knowledge.” The former attorney general un-derlined his point about complicity by citing a Supreme Court judgment on a minister who was booked for harbouring a terrorist after a servant brought him into the ho-use.“The SC said that cannot be the case,” he said.
The Narcotics Control Bureau (NCB) claimed to have re-covered 6 gm of charas from Aryan’s friend Arbaaz Mer-chant’s shoes a short while after they boarded a cruise liner headed for Goa on October 2.“Since there was no recovery, no consumption, no medical examination to show consumption…not even a party.I submit that Aryan Khan was wrongly arrested.” The HC is hearing the bail applications of Aryan, Merchant, 26 and Munmun Dhamecha, 28, a fashion model, after the sessions court denied them bail.In all, eight persons were arrested before the crui-se began.NCB has alleged a conspiracy connecting all eight.
HC will continue hearing the bail plea Wednesday.
Referring to an affidavit by a witness, Prabhakar Sail , which is being relied on by NCB to cite vendetta against its officers, Rohatgi said the “unsavoury controversy bet-ween political personalities and NCB cannot rub off on me.” He sought to distance his client from the “unsavoury controversy” involving the agency, its witnesses and political parties and chose not to cast any motives on investigators.“Khan is not making any allegations against any individual or director in NCB,’’ he said.NCB had said Sail’s affidavit makes a “clear case” of alleged tampering by a manager of Khan to derail its probe and that bail should be denied for that reason alone.Rohatgi said he did not want to be sullied by this dispute.
But he questioned the change in the stance of NCB, which on Monday attributed the controversy to the personal vendetta of a politician and “now they are trying to rub it off on me”.
M ukul Rohatgi said the NCB case against him on WhatsApp chats cannot be considered at the stage of a bail application, adding that the chats were at least a year old and do not pertain to the cruise.It is a case of a 23-year-old, back last year from the US where he was studying.“With no possession or consumption, why has this boy been sent to 20 days in jail?” he asked.
“I don’t want to prejudice the case of A-2 (Arbaaz Mer-chant).He has, I believe, denied possession, but since nothing was found on me (Aryan Khan), you cannot take the case any further,” said Rohatgi.“This is not a case of any master-servant relationship that Khan has asked anyone to bring any-thing.
I have no control over what is found in Arbaaz’s shoe.Even if possession is assumed, it was 6 gm and maximum pun-ishment is up to a year,” said Rohatgi who was assisted by Satish Maneshinde.There is no evidence of any “conspiracy” as alleged by NCB later, to connect Khan with an offence of illicit trafficking or financing under section 27A of the Narcotic Drugs and Psychotropic Sub-stances (NDPS) Act, which is not even what he has been booked for or charged with, said the senior counsel who flew down from London on Monday night.
“The charge of conspiracy is to indirectly bring in section 27 A of the NDPS Act for illicit trafficking, that is what I gather though Aryan hadn’t been charged with 27A,” said Rohatgi.
The senior counsel also pleaded for a compassionate attitude by the court towards young drug users and for the law to treat them as victims rather than offenders.
“In any case there is no material to show that (Aryan Khan) had any truck or meeting of mind with anyone else,” he said.“These are young people.The approach is to not put them in jail.
The Act provides for im-munity from prosecution if a person is a consumer.Consumers have to be treated as victims,” said Rohatgi.“My case is that section 37 (a fetter on bail, requiring court to hold there is no prima facie case against accused to grant bail) doesn’t apply because Section 27A (financing) doesn’t apply,” said Rohatgi.The NCB which arrested Khan, Arbaaz and Munmun along with five others following the October 2 raid at the international cruise terminal had claimed to have found five grams of contraband from the floor of Munmun’s cabin on the cruise ship which was to set sail for Goa.
Seeking their remand, the NCB had said all the accused were connected in “conspir-acy”.It had seized Khan’s mobile phone and opposed his bail citing chats with a “foreign national” to argue that it needed to be investigated.
Rohatgi said, “There is no evidence.There may be some lady in London or somewhere and there are chats and the NCB is trying to link these to this case, without evidence.” Rohatgi referred to a chart to show recoveries and arrest and said at best Khan can be connected to his friend Merchant and another accused (Aachit Kumar).“But Aachit was not on the cruise.He was arrested on October 6, from his house.” When Justice Sambre asked about the chart, senior counsel Amit Desai appearing as lead counsel for Merchant along with advocate Taraq Sayed, said Kumar was “also a young, 22-year-old, from friend circle.Alleged chats were about online poker” adding “as you know online gaming has risen.” “There was nothing beyond communica-tion about poker,” both said.
Rohatgi cited a series of judgments for bail and said that Khan’s case was better than all these.
He also cited a recent October 12 judgement of Bombay HC to show con-scious possession cannot be attracted as it needs to prove “direct control.” Desai started arguing for Merchant and will continue on Wednesday.
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