Aryan Khan case: 'SC should step in, do something about WhatsApp evidence'

The NCBrsquos heavy reliance on WhatsApp messages in a special NDPS court to oppose bail to Aryan Khan and others has created an uproar in the legal fraternity which is looking at it as massive judicial indiscipline and has urged the Supreme Court to take suo motu cognisance The order of the special NDPS court rejects the bail application of Aryan Khan merely on the basis of WhatsApp chats allegedly indicating that he is part of a drug networkOfficials with Aryan Khan outside the Narcotics Control Bureau NCB office File picBipin KokateThe Narcotics Control Bureau in the case of Rhea and Showik Chakraborty also relied on the WhatsApp chats though no drugs were found on them The NCB had said they were part of an illicit drug network and charged them under the stringent Section of NDPS Act 27A where the maximum punishment is 20 years The Bombay High Court while granting bail to Rhea Chakraborty said that she was not part of a drug chain while Showik was Now something similar is happening in the case of Aryan Khan the only difference being that he was booked by NCB only for consumptionlsquoMisinterpreted piece of evidencersquoA senior lawyer of the Bombay HC Rizwan Merchant said ldquoIt is very unfortunate that the entire order of rejection of bail to Aryan seems to have been based on material which was nowhere in existence when NCB on Day 1 charged him with the ldquobailable offencerdquo of consumption They never alleged that he was part of a conspiracy with others for consumption If a consumer buys a drug for consumption he doesnrsquot verify the amount available with the seller whether he is with a small or commercial quantityrdquoHe further added ldquoThe reliance on WhatsApp chats also seems to be a subsequently trumped up and misconstrued and misinterpreted piece of evidence being relied upon by NCB to only to prejudice the mind of the court and to bring Aryan within the network of traffickers so that he doesnrsquot get the advantage of being required to be treated separately as a consumer which is the very objective of the NDPS Act while dealing with consumersrdquolsquoMassive judicial indisciplinersquoAnother lawyer who is now an IPS officer Isha Singh also spoke about the order saying that it was massive judicial indiscipline on part of the lower court and a violation of the Supreme CourtrdquoThe SC has ruled that WhatsApp chats donrsquot have any evidential value They can be used during the trial But using WhatsApp chats in pretrial incarceration goes against the order of the SC so the lower courts are violating the order of the SC It means that someone presumes allegiance to the NCB rather than the SC Thatrsquos why I say that this is an act of judicial indiscipline and what is happening is alarming The SC needs to take suo motu cognizance of this judicial indiscipline occurring in MumbairdquoRizwan Merchant senior lawyer right Jaikush Hoon senior lawyerldquoAssuming without admitting that there is a reference to Aryanrsquos chat with another person discussing drugs what evidence has NCB produced to suggest even remotely that the other person is a drug trafficker Further assuming that the other side is a drug trafficker whatrsquos the evidence to suggest that the chat was for trafficking and not for consumption The finding of the court that Aryan seems to be a regular consumer doesnrsquot exclude him from the category of lsquoconsumersrsquo and consequently entitled to be treated differently as provided in the statute with the option of even being granted immunity from prosecution under 64A of the NDPS Actrdquo Merchant said Senior advocate Prashant Bhushan said on Twitter ldquoNo drugs found in possession of Aryan Khan In any case alleged offence is punishable with max 1 year jail Yet no bail to him even after 2 weeks Absurd Seems that many judges have no idea of the right to personal liberty amp the principles of bailrdquoA senior lawyer from the Supreme Court and Rajya Sabha member Kapil Sibal said ldquoI personally think that Aryan had not consumed any drug that point in time he was not in possession of any drug The fact that somebody else was in possession of drugs does not make him liablerdquo ldquoWhatsApp messages are no proof of dealing in drugs in what circumstances these messages are written to whom they are written can be looked at but certainly this arrest onboard the vessel was according to me unholy and unjustifiedrdquo Sibal addedlsquoOnly recourse to set order asidersquoldquoItrsquos a judicial order The only recourse is to set it aside which can be done by a superior court Some may like it many may not but as long as itrsquos on record it will be treated as a precedent And I feel it must be challenged to set the record straight WhatsApp chats as held by the Supreme Court have no evidential valuerdquo said Dr Sujay Kantawala a senior lawyer Another lawyer felt Aryan has been targetted just because he is Shah Rukh Khanrsquos sonldquoThe honrsquoble court should have considered Aryanrsquos bail on merit based on the probative evidence available instead of taking it on sketchy assumption created by NCB From the inception the boy has been made a target just because he is the son of Shah Rukh Khan The prefatory investigation has not been fair as we are seeing Itrsquos a bailable offence that the department is trying to shape as nonbailable by giving the story of international link to the case Itrsquos most unfortunate that the matter has been given a political shaperdquo said Jaikush Hoon a senior lawyer with the SC