Aryan Khan Bail Appeal: 3 Issues That Will Be Argued in Bombay High Court

The NDPS court's rejection of bail relies on the NCB's claim of a conspiracy, but is this really justified?

Aryan Khan has been arrested by the Narcotics Control Bureau in an alleged drugs case.

(Photo Courtesy: Instagram)

After a special Narcotic Drugs and Psychotropic Substances (NDPS) court in Mumbai rejected the bail application filed by Aryan Khan, son of Bollywood superstar Shahrukh Khan, on 20 October, the controversy now moves to the Bombay High Court.

On 26 October, the high court will hear an appeal by Khan against the lower court's order, and will decide whether or not he will be released from jail pending trial. Khan's detention in judicial custody has been extended till 30 October while the high court makes its decision.

Here are three issues that are set to be hotly contested by Khan's lawyers and those representing the Narcotics Control Bureau (NCB), involving legal questions over provisions of the NDPS Act, and factual questions over the NCB's claims of conspiracy.

1. Convoluted Claims of 'Conscious Possession', Commercial Quantities & Conspiracy

A key question that has popped up from the start of this case is: How is Aryan Khan being roped into it when no drugs were recovered from him?

The NCB argue that Khan knew that his friend Arbaaz Merchantt had 6 gram of charas, that is, cannabis concealed in his shoes. Special judge VV Patil agreed with this claim, based on the fact that the two have been friends for a long time, were travelling together, and in statements to the NCB, they had allegedly said they were planning to consume the substance.

Accordingly, the judge accepted the NCB's claim that Khan was in 'conscious possession' of an illegal substance under the NDPS Act.

But even if this were true, would it be enough to deny bail to him?

The special judge says yes, because Section 37 of the NDPS Act is applicable in this case. When Section 37 applies, a court cannot grant bail to an accused unless there are reasonable grounds to believe that the accused is "not guilty" of the offence.

The NDPS court notes how in the Md Nawaz case in September, the Supreme Court had denied bail to a man arrested after heroin was found hidden in a car he was travelling in, even though no drugs were recovered from his person – because Section 37 applied, and it couldn't be said that the accused was not guilty.

This, however, is where things get murky and we start to see how the NDPS Act gets misused to keep people in jail without even convicting them.

Section 37's stringent bail condition doesn't automatically apply in every case involving drugs. It only becomes applicable in cases involving specific offences like financing drug trafficking, or when a case involves a 'commercial quantity' of drugs.

In the Md Nawaz case, that was not in dispute: 3.3 kilogram of heroin was recovered from the car Nawaz was travelling in.

But in the case of Aryan Khan, the quantity of charas recovered from Merchantt was only 6 gram, a 'small quantity' for the purposes of the NDPS Act. So how did the judge then find that Section 37 applied here?

The court gets around this by saying that the NCB had recovered an allegedly commercial quantity of the drug 'M.D.', of 0.54 gram, from one of the other accused persons in the case, accused no. 9.

Since the NCB was alleging that there was a conspiracy here between all the accused and had booked Aryan Khan under Section 29 of the NDPS Act (which deals with conspiracy), the judge found that he could be held liable for the entire quantity of drugs seized from all the accused, not just Arbaaz Merchantt.

To justify this workaround, the judge observes that this was why the Bombay High Court had, in October 2020, rejected the bail application of Showik Chakraborty, brother of actress Rhea Chakraborty, who had been arrested last year even though no drugs had been recovered from his person.

Chakraborty's chats and communications allegedly revealed a connection to drug dealers who sold commercial quantities and were involved in drug trafficking, and so the high court had held that the rigours of Section 37 would apply to his case.

However, there is a crucial difference between the two cases. In Showik Chakraborty's case, the Bombay High Court had pointed to chats and connections between Chakraborty and specific drug dealers, who were involved in drug trafficking and commercial quantities of drugs.

In Aryan Khan's case, no such specific connections are pointed to. Instead, in para 19 of the NDPS court's order, the judge states that

"Perusal of Whatsapp chats reveals that there are chats of applicant/accused no.1 [Aryan Khan] about drugs with unknown persons. There is also reference of bulk quantity and hard drug in the chats. There is prima-facie material showing that applicant/accused no.1 was in contact with persons dealing in prohibited narcotic substances as alleged by the prosecution."

If Aryan Khan's alleged chats about drugs are with 'unknown persons', not accused no. 9 (from whom a commercial quantity of drugs was recovered), how exactly is he being dragged into a case of conspiracy with accused no. 9 or any of the other accused?

And if there is no basis to allege a conspiracy with accused no. 9, how is he (or even Arbaaz Merchantt or Munmun Dhamecha) being tied to a case involving commercial quantities of drugs?

The judge elides over this vital question in para 23, insisting that there is a prima facie case of conspiracy here, because Aryan Khan had chats with some people, and drugs were found on other accused.

The Bombay High Court, however, is unlikely to just mechanically accept these claims of conspiracy. This isn't just some empty rhetoric floated by the NCB to make their case look better, it is being used to argue that an ultra-strict legal provision should apply to ensure that none of the accused get bail.

It is also worth noting that despite the NCB's claims of a grand conspiracy involving Showik Chakraborty, the NDPS court itself finally granted him bail in December 2020, finding there was no material to suggest that his contact with those drug dealers rose to the level of commercial dealings or financing drug trafficking.

2. Claims of Evidence Tampering: Genuine Risk or Fishing Expedition?

In para 33 of the NDPS court order, the judge looks at the regular grounds for deciding whether to grant bail, that is, do the accused have criminal antecedents? Are they likely to tamper with evidence if released? And is it likely that they will commit an offence if released?

While he notes that Aryan Khan has no criminal antecedents, he agrees with the NCB's argument that there is a risk that Khan will tamper with evidence if released.

This argument is based on the NCB's claim that Khan is "in touch with foreign national and other drug dealers who appears to be part of international drug network", and that if he is released while the NCB is still investigating said network, he could tip them off.

The judge notes that:

"During interrogation applicant/accused no.1 did not disclose names of said persons. Accused no.1 is the only person who could disclose the details of said persons which are in the exclusive knowledge of accused no.1."

But this is a Kafkaesque argument to make. The NCB has no evidence of Khan's dealings with supposed foreign drug sellers, apart from claims that he has discussed drugs with unknown persons.

They have not provided any specifics of Khan's dealings with these shadowy drug sellers. The court has not recorded any findings about what Khan is supposed to have discussed with these drug sellers either – all the order says is that "from Whatsapp chats of applicant no.1 it is reflected that he was indulging in illicit drug activities."

What is basically happening now is that Khan is being kept behind bars indefinitely while the NCB conduct a fishing expedition to find the evidence they should have had before going to arrest him.

The claim that he could tip off the supposed drug dealers may seem like a genuine risk. But think about what this actually means for criminal cases going forward.

Any person could be accused of having connections to unknown drug dealers or terrorists, on the flimsiest of evidence, and then kept behind bars because they won't tell the police who these unknown persons are.

This is exactly the kind of misuse of criminal law that the Supreme Court warned about when it granted interim bail to Republic TV's Arnab Goswami in an abetment of suicide case last year, saying:

“... it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens.”

Note that Khan is not obligated to name anyone here; even if he is in contact with some drug dealers, that isn't automatically a crime (for instance, if the chats are about purchasing and consuming drugs abroad), and even if there is a potential offence at play, he has a constitutional right against self-incrimination.

3. Are All NDPS Act Offences Non-Bailable?

This is an issue that has ramifications far beyond Aryan Khan's case, and could prove vital to stopping misuse of the NDPS Act even in less high-profile cases.

In Indian criminal law generally, when the maximum punishment for an offence is below three years, it is considered a bailable offence. When a person is arrested in connection with a bailable offence, they are supposed to get bail as a matter of right, and this can be granted at the police station itself, without having to go to court.

If a person is accused of only bailable offences and the police have not granted bail, the courts will normally do so without much argument.

If a person is accused of any non-bailable offences, however, the court has to conduct a more detailed assessment before granting bail, including whether the person may abscond, or will tamper with evidence, or threaten witnesses, or repeat the offence.

This becomes relevant for Aryan Khan because if the high court finds that the NCB's claims about a conspiracy to deal in commercial quantities and the risk of evidence tampering are far-fetched, then the only offences that Khan, Arbaaz Merchantt and Munmun Dhamecha can be accused of are (1) possession of a small quantity of charas, and (2) consumption of charas.

The maximum punishment for the first is one year's imprisonment plus a fine. The maximum punishment for the second is six months' imprisonment plus a fine. Usually, these would be classified as bailable offences, which means the high court would almost certainly grant them bail.

However, in its judgment granting bail to Rhea Chakraborty last year, a single-judge bench of the Bombay High Court had held that all offences under the NDPS Act, including offences where the maximum punishment was under three years' imprisonment, are non-bailable.

The high court judge noted that the heading for Section 37 of the NDPS Act was amended in 1988 to say "Offences to be cognizable and non-bailable", and that in 1999, the Supreme Court had stated in its Baldev Singh judgment that all offences under the NDPS Act were non-bailable following that 1988 amendment.

Normally, that would be the end of the debate, as high court decisions are binding on lower courts and high court benches of the same strength. However, in 2009, a single-judge bench of the Bombay High Court had come to the opposite conclusion.

The judge there had found that despite the 1988 amendment to the heading for Section 37, the actual text of the act had not been amended anywhere to say that all NDPS Act offences are non-bailable.

It is the content of a section that is important, not the heading given to it, so the Bombay High Court in 2009 and the Delhi High Court in 2012 had held that offences involving small quantities of drugs should be viewed as bailable. This was a crucial precedent used by people arrested for possession of small quantities of drugs to ensure they got bail over the last decade.

While the Supreme Court had made an observation that all offences under the NDPS Act were non-bailable in 1999, this was not the issue that the apex court was dealing with in that case and it was more a comment in passing. A plain reading of the act also shows that the observation doesn't appear to be justified.

It is also worth pointing out that in 2001, the NDPS Act had been amended to reduce the punishment prescribed for offences relating to small quantities of drugs, indicating a legislative intent for such offences to not lead to unnecessary jail time.

The Bombay High Court judge hearing Aryan Khan's case now has a chance to clarify the position of law, whether by making a decision themselves, or referring it to a larger bench.