Will Aryan Khan Finally Get Bail? This is What the NDPS Court Needs to Consider

The special NCB court reserved its order on bail till 20 October after fierce arguments.

Shah Rukh Khan's son Aryan Khan has been arrested by the Narcotics Control Bureau. Image used for representational purposes. 

(Photo Courtesy: Instagram)

The special NDPS court in Mumbai reserved its order on whether to grant bail to Aryan Khan, Arbaaz Merchant, and Munmun Dhamecha till Wednesday, 20 October, meaning the trio will remain in judicial custody till at least then.

Whether or not they get out of jail will depend on how special judge VV Patil decides several substantive legal issues, which have been debated at length during the past week – first in a bail hearing before a magistrate, and then before Patil.

From the NCB's claims of a conspiracy, to the lack of any drugs on Aryan's person, to the technical question of whether offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act are bailable, here are the questions that will decide what happens next.

1. Are NDPS Act Offences Bailable? If They Are Non-Bailable, Does That Mean Bail is Not Possible?

Criminal offences are categorised as bailable or non-bailable based on the seriousness of the offence in question. If an offence is bailable, this means the police themselves can grant bail to a person arrested under that offence (what is often called station bail), without any scrutiny by a judge.

Bail is granted as a matter of right when it comes to bailable offences, and if the police do not do so, the courts will, the moment an arrestee is brought in front of them who has not been booked under any non-bailable offences.

Non-bailable offences, on the other hand, are a bit more complicated. The term does not mean that a person cannot get bail if they are accused of one – but here, only a court can grant bail to someone once they have been arrested.

The general power to grant bail in non-bailable cases comes from Section 437 of the Code of Criminal Procedure. Apart from cases where the accused has been booked under offences where the maximum punishment is life imprisonment or death penalty (like murder), the courts have to see if releasing the accused poses the following risks:

1. They will commit the same crime again.

2. They will abscond.

3. They will tamper with evidence or threaten witnesses.

If there is no reason to believe the accused will do these things, the courts can grant bail, while imposing conditions to ensure things stay that way – for instance by making the accused surrender their passport and taking permission from the court before travelling.

Special statutes like the NDPS Act or the Unlawful Activities (Prevention) Act (UAPA), have additional conditions when it comes to the grant of bail as well, which have to be considered if those statutes have been invoked by the investigating authorities.

And that is why this very technical issue is important to the court's decision on Aryan Khan, Arbaaz Merchant, and Munmun Dhamecha.

The NCB has no specific evidence linking them to a commercial quantity of drugs – while Aryan Khan had no drugs in his possession, Merchant had 6 grams and Dhamecha had 5 grams of charas, ie cannabis, on them.

The maximum punishment for purchase of this quantity of the substance is one year's imprisonment plus fine (Section 20(b), NDPS Act). For consumption of charas, the maximum punishment is six months' imprisonment plus fine (Section 27, NDPS Act).

Normally under the Code of Criminal Procedure, this low level of punishment would mean that the offences of purchase and consumption of charas would be bailable offences.

This would mean that if the NDPS court were to be satisfied that there was no material to link the three to some other non-bailable offence, they would almost certainly get bail without much scrutiny.

However, the NCB insists that all offences under the NDPS Act, including these offences with lower punishments, are non-bailable, and therefore bail is not a matter of right, even if these were the only offences that could be tied to the three.

To make this argument, they rely on the Bombay High Court judgment granting bail to actress Rhea Chakraborty in October 2020, which analysed this question of whether or not NDPS Act offences are non-bailable.

While the Bombay High Court in a previous case in 2009 and the Delhi High Court in 2012 had held that offences with low levels of punishment were bailable offences, this time, in Rhea's case the Bombay High Court held that actually, this was incorrect.

In 1999, a Constitution Bench of the Supreme Court in the Baldev Singh case had examined the scope of the NDPS Act, and commented that all offences under it are non-bailable following a 1988 amendment. Even though this had nothing to do with the actual issue in Baldev Singh, in Rhea's case, the high court held that this observation was binding on all courts going forward.

Aryan Khan's lawyer Amit Desai has strenuously argued that this was an incorrect finding by the Bombay High Court last year. Pointing to the findings of the 2009 Bombay HC judgment, he notes that nowhere in the text of the NDPS Act is it written that all offences under it are non-bailable.

This is an interesting point because even though the 1988 amendment's statement of object and reasons said it was going to make all offences non-bailable, and the heading for Section 37 was changed to say, “Offences to be cognizable and non-bailable”, the text of Section 37 was only amended to say every offence is cognizable.

Nothing was actually added to say the offences were non-bailable – and headings of legal provisions have no interpretive value. From an objective standpoint, it certainly looks like the Supreme Court judgment in 1999 made a gross error by failing to see what the text of the NDPS Act actually says.

However, given the Bombay HC's judgment is binding on the special NCB judge, it is difficult to see Aryan Khan et al winning this particular argument, and the judge is likely to side with the NCB on this. While this doesn't mean the judge has to deny them bail, it does mean that the judge can do so, if he finds the NCB's other arguments persuasive.

If the judge had been able to hold that the offences are bailable, the chances of Aryan Khan, Merchant, and Dhamecha getting bail would have been extremely high, given the lack of material connecting them to other offences.

2. If No Drugs Were Recovered From Aryan Khan, Does This Mean He Should Get Bail?

While judges are not supposed to conduct detailed examinations of the evidence at the stage of bail, they have to be satisfied that the police have an actual case against an accused.

When it comes to Aryan Khan, the police do not have what is normally the key piece of evidence when it comes to most NDPS Act offences: possession of a banned substance.

If a banned drug/substance is recovered from a person, there is a presumption that exists that they have committed an offence. This presumption will apply to both Merchant and Dhamecha when it comes to the offence of purchase of charas (and for consumption of it as well).

However, in Aryan's case, the police have no prima facie evidence for either of these two offences, which means the court would, in normal circumstances, be likely to grant him bail.

The NCB has tried to argue that Khan was in 'conscious possession' of the charas recovered from Merchant because this was supposed to be for both of them. They have claimed that there is proof for this in the WhatsApp chats between the two friends, and that both of them also admitted the same during questioning.

During the court proceedings, however, the only WhatsApp chat between the two read out by the NCB's lawyer, Additional Solicitor General Anil Singh, was about how they would "have a blast" on the cruise.

Unless the copies of the chats handed over to the judge have something more than this, it is difficult to see how this would be enough to say Aryan Khan had known or been in possession of the drugs.

The three accused have also said they have retracted their statements to the NCB. While the court may hold that the retraction is not relevant at the time of bail, it is hard to see the court relying on statements to an investigative agency to keep the accused in jail when all the conditions for bail are met here.

They are unlikely to abscond (the court can easily put conditions to prevent this), tamper with evidence (all of which is with the NCB) or threaten witnesses (none of them have criminal antecedents or have any personal influence of significance).

When it comes to the offences of purchase and consumption of charas, even though small quantities were recovered from Merchant and Dhamecha, this should mean all three should get bail (though Aryan Khan's position is certainly stronger than the other two).

3. The NCB's Big Hope: The Conspiracy Claims

The NCB has stressed through its arguments that there is a larger conspiracy here, that they have busted a whole drug ring including peddlers and foreign nationals involved in the drug trade, and that Aryan Khan, Merchant and Dhamecha were also involved in this.

"We will ultimately find out how they are all connected to each other and establish a case of conspiracy. This isn't a case of bail at this stage. It can be considered at an appropriate stage."

ASG Anil Singh, as reported by LiveLaw

This is crucial to the NCB's quest to ensure the latter three are also denied bail, because, as we saw in the earlier section, if the only offences at play are (a) purchase of a small quantity of charas and (b) consumption of charas, all three have a very strong case to get bail.

This is why all three have also been booked under Section 29 of the NDPS Act, which deals with conspiracy and abetment of crimes. The NCB are trying to make an argument that the three of them are by virtue of conspiracy involved in drug trafficking (maximum punishment 20 years' imprisonment) and sale of commercial quantities of drugs (maximum punishment life imprisonment).

To justify their stance, the NCB has pointed to how Rhea Chakraborty's brother Showik was denied bail by the Bombay HC last year even when it granted bail to her, because there was allegedly material with the NCB to show he was connected with a drug trafficking ring.

However, it is difficult to see how much weight this argument could hold. Both Rhea and Showik Chakraborty had been booked under Section 27A of the NDPS Act in the 2020 case, which deals with facilitation and financing of drug trafficking. Aryan Khan, Merchant, and Dhamecha have not been booked under this serious provision.

Even when it came to Rhea and (in a subsequent order) Showik Chakraborty, the Bombay High Court eventually found that the NCB, for all their claims, had no material to show they were actually involved in drug trafficking.

Purchase of drugs, even from a drug trafficking operation, does not amount to being part of that operation or financing it, the high court found back then. Much like their case, no evidence has been presented in court thus far that suggests Aryan Khan, Merchant or Dhamecha were involved in plans to purchase commercial quantities of drugs.

The NCB made several vague statements about WhatsApp chats recovered that point to this, but interestingly never stated that those were chats recovered from any of these three's phones.

Moreover, from the statement quoted above, it appears they don't actually have a full idea of how to connect these three with those involved in the actual peddling in terms of a conspiracy.

The court is not required to allow people to be kept in custody while the NCB goes on a fishing expedition, and so unless some other concrete material has been submitted to justify the conspiracy claims, it is difficult to see how this can be grounds to deny these three accused bail at this stage.