A Mumbai Sessions Court will continue hearing bail plea by Aryan Khan, son of Bollywood actor Shahrukh Khan, in the cruise ship drug case, in which he is the prime accused.
The matter will be heard by special judge under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), VV Patil.
Yesterday, Khan's counsel Amit Desai made lengthy submissions before the Court arguing that the allegation by the Narcotics Control Bureau (NCB) that Aryan Khan was involved in illicit trafficking of drugs was inherently absurd.
Additional Solicitor General Anil Singh had commenced arguments on behalf of Narcotics Control Bureau (NCB) but the hearing remained inconclusive. It will resume today.
Read details on previous proceedings here.
Live updates from today's hearing below.
Additional Solicitor General Anil Singh who is representing NCB, is currently arguing matters before the Bombay High Court.
The hearing before Sessions Court in Aryan Khan bail matter is likely to start only after Singh finishes his High Court commitments.
Social worker’s lawyer: Drug menace in society is a grave issue and needs to be dealt with. There are bail applications of 2017-18 pending in courts while Aryan Khan is getting special treatment by getting expeditious hearing of his bail plea.
Adv Anandini Fernandes, junior of Satish Maneshinde: Intervention cannot be allowed. We have already argued our case and the prosecution is represented by ASG. So he cannot say that prosecution is not adequately represented.
No third party can come like that in a criminal case. He is neither a complaint nor informant. He is not even an affected party!
Fernandes: This is just a publicity stunt. Why has he not intervened in any other case. There are three bail applications being heard right now...He is only intervening in Khan's bail plea.
Social worker lawyer: We can assist the prosecution, my bonafide will be revealed to the prosecution.
Fernandes: I am strongly objecting to him assisting the prosecution as well.
ASG Anil Singh is currently arguing one of his matters before the Bombay High Court. Another case in High Court in which he was supposed to appear got adjourned.
ASG's arguments in Bombay High Court might last for 30 minutes after which the other side might make rejoinder arguments. Hence the hearing in High Court might go on for an hour.
The bail hearing in Aryan Khan before sessions court might start only after that.
Special Public Prosecutor AM Chimalker for NCB tells Sessions court that ASG is on his legs in Bombay High Court.
Should be here in sessions court in 20-25 mins: Chimalker
Senior Advocate Amit Desai who is appearing for Aryan Khan, mentions the case: We have been waiting, so at least a message should have been sent to know till when ASG will be here. That matter in high court was to be heard only at 12.
SPP Chimalker: I mentioned that he will be here by 1 pm. ASG is on his legs in High Court.
Desai: I did not know that you did mention it...I understand that it is an important matter there as well... But this is also about the liberty of a person.
Maneshinde: Let us do one thing. When he (ASG Anil Singh) reaches here, we can all sit back a little even after 2 pm and finish this case (2 pm to 2.45 pm is lunch time in sessions court).
ASG continues with his submissions.
ASG: My apologies for coming late. I was arguing a matter in High Court.
ASG: My submission on facts is that first the present applicant is not a consumer for the first time.
ASG: The record and the evidence before your honour shows that he is a regular consumer of contraband since last few years.
The contraband in possession of Arbaz Merchant who accompanied Khan, was for consumption of both of them.
ASG: I have shown panchnama and whatsapp chats. I will show the relevant portion of panchnama. That is in the bail application
ASG reads out the panchnama.
ASG: The panchnama records that they are going to the cruise for a blast. They had the substance for the journey.
ASG: The record in the panchnama signed by the applicant establishes that he was in conscious position of contraband because he admits it was with his friend and it was for consumption of both of them.
The contention that nothing was found with Applicant may not be correct.
ASG: The next submission is that the quantity of the hard drug cannot be for personal consumption. The quantity can be seen from the chats. The peddler, kadir and foreign national were in touch with Aachit Kumar.
We are in touch with the ministry to find out the foreign national.
ASG: Kindly see the definition of 'use', because I heard my learned friend argue that consumption includes use and vice versa.
Use in relation to narcotics drugs is everything except personal consumption. Hence I am showing this section.
ASG: See Section 35 of NDPS Act for a minute. Section 35 is a presumption of culpable mental state. Therefore, there is always a presumption that when drug is found in possession of someone, then what the agency saying is correct unless proved other wise.
The case of Agency that drugs are found in his possession has to be considered prime facie correct.
ASG: The next relevant provision is Section 54 of NDPS Act. From possession of illicit articles there is presumption, and at the trial stage the accused has to show that he was not in possession of illicit articles.
ASG: There is always a presumption that if the agency comes with a case that the accused has been found in possession of drugs then it is presumed to be correct till it is disproved trial.
ASG: Now see Section 37 of NDPS. The reason I am pointing to 37 is because I pointed out 29. I have come with a case of conspiracy. In one case if there are 15-20 people involved and it is case of conspiracy and possession with one accused, then 37 kicks in.
And then stringent condition against grant of bail will apply.
ASG: Today we are at preliminary stage of investigation. My learned friend is saying I cannot apply Section 29 (conspiracy) of NDPS Act at this stage. But there is no restriction on me applying Section 29.
It is not a correct position. As far as charges are concerned I can invoke any sections. As investigation progresses further, I will get evidence.
ASG: There are provisions in the NDPS Act which has got nothing to do with quantity, so that cannot be an argument to say that punishment is only for a year.
Once the connection is established, then the quantity is not important. My submission is that this is not a case for grant of bail, I have some judgments to cite.
ASG: Coming to the submission on the mobile seizure, which Mr. Sayed made. I want him to show in the application where is this ground?
In the panchnama, it is recorded that mobile phone was voluntarily given. Can that not be done in investigation. What I investigate, how I investigate, whom I investigate, is the agency’s prerogative.
And since this is not in the application we did not reply to it in our reply. Else we would have: ASG
Officer VV Singh tells the court that the phones were voluntarily submitted was recorded by the person who recorded the panchnama.
ASG shows the judgment in the case of Showik Chakraborty. ASG reads excerpts from the High Court judgment.
ASG: In that case the argument was there was no recovery of contraband but in our case there is.
The High Court in that case held that the accused was an important link in the investigation and that there were monetary transactions. It held that all the bailable offences are non bailable under NDPS.
ASG: The High Court held that even if there was no recovery, the accused were in touch with drug dealers, so bail cannot be granted.
In the present case, there are drug dealers. Aachit and Shivraj are drug dealers with whom the accused were in touch.
ASG: The second judgment is UoI v. Shivshankar Jaising - Supreme Court judgement.
This is judgment which states that retraction is a matter of trial. The retraction came first time on October 7, but in any case it has to be considered at the stage of trial not at the stage of investigation.
ASG: Third judgment is a Bombay High Court ruling in MD Kale v. Mohamed Afzal. I am not reading it but it is on the same point as previous judgment.
ASG points out another judgment.
I am pointing out this judgment because it is after Toofan Singh judgment. Toofan Singh is at the stage of trial, not applicable at the stage of bail: ASG
ASG: The next judgment is Nawaz Khan. This is on recovery.
Assuming the case of applicant of no recovery is accepted, kindly see the Nawaz Khan para 25. Even if there is no recovery, the rigours of Section 37 of NDPS Act will apply, is what the judgment says.
ASG: There is another judgment on conspiracy - State of Orissa v. Mahimananda Mishra. In conspiracy there cannot be direct evidence because only conspirator will know the conspiracy. So SC has said there can only be circumstantial evidence.
ASG: The next judgement is on two different points. One is applicability of Section 37 and second as to how serious a crime is under NDPS Act.
ASG reads another judgement on the same point.
ASG: Again, the judgment of SC in State of Kerala v. Rajesh. This is also on twin conditions
ASG: So the next judgment is Ratan Malik. It is also on the point of recovery.
ASG pointing out paragraphs from the judgments he is citing, for the court to consider.
ASG: The next judgment is Gopal Singh v. State of Delhi. This is on recovery, twin conditions and conspiracy. It covers all three points.
ASG: Then Harshmani v. Customs is a Bombay High Court judgment that I am citing.
ASG (quoting from the order): The Court must be satisfied that even if the allegations are established there exists every likelihood that accused can be acquitted.
ASG: Now the last two judgments I will be citing are: one, Bharat Thakker v State of Maharashtra.
This is on Section 37. But I am not reading reading that part.
ASG (reading from the order): There are countries in which such offences are getting death penalties.. In such classes of cases, bail should be exception and not rule.
ASG: My submission to the court is that when we are considering a case under NDPS Act, the court has to consider the stringent provisions of the Act. The scheme and object of the act.
ASG: The international convention has said that drug trafficking and abuse has to be taken seriously because it is affecting nature and the world. From time to time amendments are made. I am glad my friends appreciated the role of NCB in Mumbai, but allegations are also made.
Now is the time to point out that our officers are working day and night, and are trying to find a solution to drug trafficking.