[Aryan Khan Bail] WhatsApp chats appeared in media before it was placed on record in court: Arbaaz Merchant to Bombay High Court

Arbaaz Merchant, one of the co-accused in the Aryan Khan drug case, told the Bombay High Court on Wednesday that the WhatsApp chats cited by Narcotics Control Bureau (NCB) to implicate him in the case, appeared in the media before it was placed on record in court..Merchant's counsel Amit Desai told the Court that the WhatsApp chats do not reveal any conspiracy on the part of Merchant as alleged by NCB and it it is also not admissible as evidence since it does not have Section 65B certificate required under Indian Evidence Act. "It is abundantly clear that there are no WhatsApp chats to support the conspiracy theory. The WhatsApp chats appeared in media before it was on record in court. That is the world we live in," Desai said.Single-judge Justice Nitin Sambre was hearing the bail plea filed by Merchant and Munmun Dhamecha and prime accused Aryan Khan. The Court after hearing Desai and Dhamecha's counsel Ali Kaashif Khan Deshmukh kept the matter for further hearing tomorrow. The case will be heard at 2.30 pm tomorrow when the NCB will make its submissions..Senior Advocate Amit Desai appearing for Merchant told the Court today that the arrest memo against Merchant only had charges of consumption, and the offence of conspiracy under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) was added later.In this regard, Desai also pointed out that the officer who arrested the accused treated them as unconnected persons heading to the cruise for consuming the contraband and not as people part of a conspiracy."The person who arrested them treated them unconnected with each other and treated individually and wanted to go to the cruise and consume," Desai said. Desai further contended that the conditions mandated under Section 41A of the Code of Criminal Procedure will apply to NDPS Act with respect to offences which are punishable with imprisonment of less than 7 years.Section 41A provides that in cognizable offences, where the arrest of a person is not required, the concerned police officer can send notice to the accused to appear before the officer. If the person complies with the notice, he should not be arrested unless the police officer thinks otherwise and record reasons for the such arrest. In the instant case, the same would be applicable since the accused were arrested for consumption and not conspiracy. "Section 41A applies to NDPS Act which are punishable with imprisonment of less than 7 years. After due application of mind three people were arrested under 20(b) and 27 but what was the need to arrest them? There was no conspiracy. So what was the need?" Desai asked.According to the judgment in Arnesh Kumar case, if Section 41A is not complied with, then the accused has to be released, Desai said.Importantly, Desai also contended that the arrest was recorded not for conspiracy but only for consumption.Conspiracy is a separate offence and there has been no arrest for conspiracy, he claimed."The court (Magistrate) was misled into believing that the arrest was also under Sections 28 and 29. Till today there is no arrest for conspiracy and conspiracy is a separate offence," Desai maintained.Desai said that the panchnama demolishes NCB's case of conspiracy."If there are unconnected persons coming for the same purpose, that is not conspiracy," he argued.Desai reiterated that there is no connection between Merchant and others except Khan.It is abundantly clear that there are no WhatsApp chats to support the conspiracy theory. "The WhatsApp chats appeared in media before it was on record in court. That is the world we live in."He also contended that WhatsApp chats are not admissible without a certificate under Section 65B of the Indian Evidence Act."Is it that the 65B certificate has been done away in United Kingdom," the Court asked."UK has gone back to the old ways. We have adopted and continued (with Section 65B). Without a 65B it is not admissible now anymore," Desai replied..Desai also said that the investigation can go on even if the accused is granted bail."I am seeking bail in that matter where punishment is only one year and there are circumstances to show that there is no conspiracy," he said..Advocate Ali Kaashif Khan Deshmukh, appearing on behalf of another co-accused Munmun Dhamecha submitted that nothing was recovered from her."Personal search was conducted, nothing was found against her. Case against me is copy paste from the other case," submitted Deshmukh."My case if they have arrested people as suspects, then all 1,300 people (who came to cruise for the party) should have been arrested. I am not from Madhya Pradesh. I have no contacts with anyone. I was invited. Through me they have not arrested anyone," Deshmukh added..Yesterday, Senior Advocate Mukul Rohatgi had made detailed arguments on behalf of Aryan Khan.Rohatgi had submitted that Khan cannot be held liable under the NDPS Act for charas recovered from the shoes of Arbaaz Merchant.Rohatgi submitted that no illegal substance was recovered from Khan and there was no evidence linking him to any conspiracy or illicit trafficking punishable under the NDPS Act."It was not in my control, what was found in Merchant’s shoe. Arbaaz is not my servant, he is not under my control, so there is no conspiracy," Rohatgi had submitted.Rohatgi had also said that Khan was not part of any conspiracy as alleged and the WhatsApp chats relied upon by NCB to allege conspiracy on Khan's part were from a much earlier period.The Whatsapp chats, they were of the time period of 2018. None of the chats are from the cruise. There is no case where those chats with “123” have anything to do with this saga. Those chats, we will have to see in trial, to be proved. The chats have nothing to do with the current scenario and therefore, to use general phrase like conspiracy is not right," he had stated..Khan was taken into custody by the Narcotics Control Bureau (NCB) on October 2, 2021 after the NCB raided a cruise ship en route to Goa from Mumbai.He was placed under arrest on October 3 and charged with offences under Section 8(c), 20(b), 27, 28, 29 and 35 under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.He was remanded to NCB custody till October 4, which was extended till October 7.Thereafter, he was remanded to judicial custody after which he immediately moved for bail.Additional Chief Metropolitan Magistrate RM Nerlikar had rejected the bail application, holding that it was not maintainable as only the special court of sessions was entitled to hear the bail plea.Subsequently, Khan moved the special court under the NDPS Act seeking bail which came to be rejected on Wednesday, October 20 prompting the present appeal before the High Court.Khan in his bail plea, contended that NCB was misinterpreting his WhatsApp chats to implicate him in the case.Further, Khan submitted that he has no connection with any of the co-accused arrested in the case except two of them - Arbaaz Merchant and Aachit Kumar - who had invited him to the party.Besides, Khan also challenged the conclusion of the Sessions Court that because he is an influential person, he might tamper with the evidence in the case. There is no presumption in law that merely because a person is influential, there is likelihood of him tampering with the evidence, Khan contended.The NCB in its reply however, stated that Khan is an influential person and may tamper with witnesses and evidence if let out on bail.In this regard, the NCB in its reply also highlighted the affidavit of one of the witnesses in the case, Prabhakar Sail, to buttress its claim that the probe is being interfered with.Sail in his affidavit had raised allegations against NCB Zonal Director Sameer Wankhede and the affidavit had been widely reported in the media."Such a document has not been filed in any proceeding before any court despite the fact that the matter is sub-judice before Bombay High Court and Sessions Court. Curiously, the same has been clandestinely distributed and widely publicised in the media," the NCB submitted in its reply.Khan was represented by Karanjawala & Co. and Desai Desai Carrimjee & Mulla.Read more on NCB's reply here.Read about Aryan Khan's affidavit here.