Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?  Read Bom HC’s view in bail order with respect to WhatsApp Chats, unlawful intention, etc.

Bombay High Court: While laying down the detailed reasons of bail in the infamous Aryan Khan case, Nitin W. Sambre, J., held that,

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

Instant applications were filed under Section 439 of the Criminal Procedure Code for grant of bail for the offence punishable under Section 8 (c) read with Section 20 (b), Sections 27, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Applicants were apprehended while they were about to board or had already boarded a Cruise from Mumbai to Goa. Further, it was stated that from Accused 2 – Arbaaz 6 grams of charas, and from Accused 3 – Munmun 5 grams of charas was recovered.

It was claimed that complete and correct grounds of arrest were not communicated and that being so, arrest of the applicants was rendered illegal.

Analysis, Law and Decision

Whether there is enough material to ascertain whether there is enough material on record to prima facie infer that the applicants have hatched a conspiracy and that the prosecution was justified in invoking provisions of Section 29 of the NDPS Act?

For inferring the act of hatching conspiracy on the part of the applicants and co-accused, there has to be positive evidence about:

  • An agreement to do an unlawful act or to do lawful act by unlawful means
  • Such agreement must precede with meeting of minds.
  • Agreement can be expressed or implied or in parts.

High Court stated that on perusal of having gone through WhatsApp chats extracted from accused 1’s phone, nothing objectionable could be noticed to suggest that applicants 1 and 2 or all three applicants along with other accused persons in the agreement have meeting of minds and have hatched conspiracy committing the offence in question.

“Hardly any positive evidence on record to convince this Court that all the accused persons with common intention agreed to commit unlawful act.”

A very significant observation was that the investigation carried out till this date suggested that applicant/accused’s 1 and 2 were travelling independent of accused 3 and there was no meeting of minds on the aforesaid issue.

Conspiracy

With respect to conspiracy against the applicants, there was an absence of material on the record of applicants having such meeting of minds with other accused who were named in the offence.

Applicants were not even subjected to medical examination so as to determine whether at the relevant time, they had consumed drugs.

 Bench stated that Additional Solicitor General was justified in relying on the Supreme court decision in State of Orissa v. Mahimananda Mishra, (2018) 10 SCC 516, to claim that a high degree of evidence was not required at this stage of the proceedings to establish the case of conspiracy, however, this Court is required to be sensitive to the fact that there has to be the presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the applicants.

Court prima facie did not notice any positive evidence against the applicants.

High Court opined that the claim put forth by the respondent that applicants should be considered to have intention to commit an offence under NDPS Act, having found in possession of commercial quantity, in the backdrop of case of hatching conspiracy is liable to be rejected.

Claim put forth by the Respondent that Accused persons have accepted their involvement in the crime was also liable to be rejected in view of the Supreme Court decision in Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31.

“…such confessional statements can be considered by the investigating agency only for the investigation purpose and cannot be used as a tool for drawing an inference that Applicants have committed an offence under the NDPS Act…”

 Concluding the matter, Bench held that Section 37 prima facie will not be attracted as this Court had already observed that there was no material on record to infer that applicants hatched a conspiracy to commit an offence.

“Difficult to infer that applicants are involved in an offence of commercial quantity.”

[Aryan Shah Rukh khan v. Union of India, 2021 SCC OnLine Bom 4127, decided on 28-10-2021]

To read the conditions on which all the three applicants were granted bail, refer to the below link:

https://www.scconline.com/blog/post/2021/10/29/read-the-14-bail-conditions-in-the-aryan-khan-case/


Advocates before the Court:

Mr. Mukul Rohatgi Sr. Counsel a/w Mr. Amit Desai Sr. Counsel, @ Mr. Satish Maneshinde @ Mr. Rustam N. Mulla @Ms. Anandini Fernandes @Ms. Ruby Singh Ahuja @Mr. Sandeep Kapur @Mr. Gopalakrishna Shenoy, @Mr. Harshad Gada @ Ms. Namita Maneshinde @Mr. Sohan Kinkhabwala @ Mr. Nikhil Maneshinde, @ Mr. Deepal Thakkar @Mr. Yuvraj Dhole @ Shanice Mansukhani i/by Ms. Anandini Fernandes, Advocates for Applicant in BA/3624/2021.

Mr. Ali Kaashif Khan Deshmukh @ Mr. Ravi P. Singh @ Mr. Harsh G. Sheth @ Ms. Riya Jain @ Ms. Halima Khan, Advocates for Applicant in BA/3625/2021.

Mr. Amit Desai, Sr. Counsel i/by Adv. Taraq Sayed @ Mr. Gopalkrishna Shenoy @ Mr. Advait Tamhankar @ Ms. Lochan Chandka @ Ms. Alisha Parekh @ Ms. Ashwini Achari @ Ms. Bhumika Gada @ Mr. Sachin Shete, Advocates for Applicant in BA/3642/2021.

Mr. Anil C. Singh, Additional Solicitor General @ Adv. Mr. Advait M. Sethna @ Mr. Shreeram Shirsat, @ Mr. Aditya Thakkar, @ Mr. Pranav Thakur @ Ms. Smita Thakur @ Mr. Amandeep Singh Sra, @ Miss Ruju Thakker @ Mr. Pranav Gohil and Mr. Tanay Mandot for Respondent/ NCB in all the above BAIL APPLICATIONS.

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