Why has Aryan Khan failed to get bail despite no drugs being found on him?

The denial of bail to Aryan Khan, the son of Hindi film superstar Shah Rukh Khan, in a drugs case twice this month has been the subject of much discussion. On Wednesday, a special court that hears narcotics cases rejected Aryan Khan’s bail application, as a Magistrate’s Court had on October 8.

Aryan Khan was arrested and seven others had been arrested by the Narcotics Control Bureau on October 3 after a raid on a cruise ship off Mumbai. So far, 20 people have been arrested in the case.

No drugs were recovered from 23-year-old Khan but investigators alleged that he is part of a larger conspiracy to procure drugs from an international network. The judge said that Khan’s WhatsApp chats showed that he was involved in “illicit drug activities for narcotic substances on [a] regular basis”.

The pattern in this case is similar to that of Rhea Chakraborty, the actress who was arrested in September 2020 for allegedly procuring drugs for her boyfriend, actor Sushant Singh Rajput. In both cases, accused people with film-industry connections were repeatedly denied bail, even as the investigators relied heavily on WhatsApp chats from the phones of the arrested people to make their case and claimed that they were part of a broader conspiracy.

Like Chakraborty’s supporters, Khan’s well-wishers have alleged that there is a political angle for the arrest.

Khan’s lawyers have now approached the Bombay High Court for bail. The case will be heard on October 26.

What are the charges against Khan?

After the raid on the cruise ship, Khan was booked under the Narcotics Drugs and Psychotropic Substances Act 1985, a special legislation passed in 1985 to “make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances”.

The sections of the Act under which he was charged include 8(c), which “prohibits the production, manufacturing, possession, selling, purchase, transport, warehouse, use, consumption, inter-state import and export, import to and from India or tranship of any narcotic drug or psychotropic substance” without permission.

Khan also faces charges for consuming narcotic drug or psychotropic substance (Section 27), attempts to commit offences (Section 28), abetment and criminal conspiracy (Section 29), and presumption of culpable mental state (Section 35).

The prosecution has also invoked Section 27A of the NDPS Act that provides for punishment for financing illicit traffic and for harbouring offenders.

Khan’s case on Wednesday was heard along with that of his friend Arbaaz Merchant, who allegedly had 6 gms of hashish, and Munmun Dhamecha, a model, who allegedly had 5 gms of hashish. Merchant and Dhamecha have also been booked under the same sections of the NDPS Act as Khan, though no drugs were found on him.

Why did the court deny bail to Khan?

On October 8, the Magistrate’s Court that heard the matter said it did not have the jurisdiction to grant Khan bail. On October 20, the special court hearing the case rejected his application on the merits of the evidence in the case.

While Khan did not have drugs on him, the court noted that his friend Merchant was carrying contraband. They both admitted in voluntary statements that the substance was for their consumption. The court said that Khan knew about the drugs and was in “conscious possession”: if contraband is found on one person in a group and others have knowledge of it, the contraband is deemed to be in the possession of all the people who know about it.

The court also accepted the prosecution’s arguments that even if no drugs or a small amount of drugs were recovered among the three accused, given the WhatsApp chats recovered from their phones, statements and the other arrests made, there is an apparent case that they have “acted in conspiracy…[and] are connected in the same thread”.

The 20 people arrested in the case include drug peddlers and foreign nationals, the prosecution said. Khan is being connected to these arrests.

In addition, the court accepted the prosecution’s argument that Khan, given his influential position, could tamper with evidence. The court also accepted the contention that Khan could continue to commit offences while he is on bail, as his WhatsApp chats allegedly show that he dealt with illicit substances on a regular basis.

Is the NDPS Act making it difficult for Khan to get bail?

The NDPS Act is a special legislation for dealing with narcotic drugs and psychotropic substances. It contains provisions that have often been described as excessive and harsh.

For instance, as per Section 35 of the NDPS Act, there is a presumption of “culpable mental state”: this means that if there’s an offence under the NDPS Act that requires the intent to commit a crime, then the court will presume the existence of such mental state. It is the duty of the defence to rebut this presumption. This goes against the general principle of presuming that people accused of a crime are innocent until proven guilty.

There is a higher threshold for bail in serious cases under the Act. Under Section 37 of the NDPS Act, if a person is accused of an offence involving “commercial quantities”, that is, more than 1 kg in case of hashish, and serious offences such as financing illicit traffic and harbouring offenders, then bail can only be granted if “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”.

Since the prosecution in the Khan case has invoked sections that would make Section 37 of the NDPS Act applicable, bail is more difficult. However, the defence has alleged that some of these charges were not there in the initial arrest memo and Khan has not been booked under them.

What do experts have to say about Khan being denied bail?

Several legal scholars and opposition politicians have criticised the manner in which the Narcotics Control Bureau has moved in the case.

Many have argued that Khan should have been given bail, especially because no contraband was found on him. Even if Khan was to have known about the contraband on Merchant, it would be a minor offence, worthy of bail. Both Merchant and Dhamecha have been found with amounts of narcotics that the NDPS Act defines “small quantities” – less than 100 gms in case of hashish. This attracts maximum imprisonment of one year (for possession) and six months (for consumption), alongside a fine.

Secondly, the prosecution has tried connecting this arrest to a larger conspiracy and a network of drugs, based on WhatsApp chats and the statements of the accused persons. However, some lawyers say that from a straight reading of the facts at hand, these sections do not seem applicable.

In addition, given that a Bharatiya Janata Party leader and a private investigator were involved in the raid, there have been allegations that Khan’s arrest is politically motivated.

Nawab Malik, a senior minister of the opposition Nationalist
Congress Party, has said that the arrests are “fake, motivated and one that exposed the BJP-NCB nexus”.

He added, “For the past one month, information was being circulated to crime reporters that the next target was Shah Rukh Khan”.

Did the Rhea Chakraborty case have any bearing on Khan’s case?

Actress Rhea Chakraborty and her brother in September 2020 were charged with similar offences under the NDPS Act as Khan.

The special court hearing Khan’s case in its order on Wednesday cited the case of Showik Chakraborty, Rhea Chakraborty’s brother, maintaining that even if drugs were not found on the accused, the section of the NDPS Act dealing with conspiracy is applicable here. It is possible that Khan was dealing in commercial quantities of narcotics, the court said.

Further, when the Bombay High Court considered Rhea Chakraborty’s bail plea in October 2020, it held that all offences under the NDPS Act are non-bailable. However, an offence being non-bailable only takes away the power from the police to give bail. The courts can still grant bail for non-bailable offences.

What is next in the case?

Khan has approached the Bombay High Court for bail. The next hearing is scheduled to be on October 26. Meanwhile, his judicial custody has been extended till October 30.