As NCB successfully argues for denial of bail to Aryan Khan, leading advocates seek the intervention of higher judiciary when it comes to using personal chats as evidence
Aryan Khan
The NCB’s 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 network.
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Officials with Aryan Khan outside the Narcotics Control Bureau (NCB) office. File pic/Bipin Kokate
The 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 consumption.
‘Misinterpreted piece of evidence’
A senior lawyer of the Bombay HC, Rizwan Merchant said, “It 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 “bailable offence” 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 doesn’t verify the amount available with the seller, whether he is with a small or commercial quantity.”
He further added, “The 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 doesn’t 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 consumers.”
‘Massive judicial indiscipline’
Another 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 Court.”The SC has ruled that WhatsApp chats don’t have any evidential value. They can be used during the trial. But using WhatsApp chats in pre-trial 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. That’s 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 Mumbai.”
Rizwan Merchant, senior lawyer (right) Jaikush Hoon, senior lawyer
“Assuming without admitting that there is a reference to Aryan’s 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, what’s 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 doesn’t exclude him from the category of ‘consumers’ 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 Act,” Merchant said, Senior advocate Prashant Bhushan said on Twitter, “No 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 & the principles of bail.”
A senior lawyer from the Supreme Court, and Rajya Sabha member Kapil Sibal said, “I 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 liable.” “WhatsApp 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 unjustified,” Sibal added.
‘Only recourse to set order aside’
“It’s 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 it’s 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 value,” said Dr Sujay Kantawala, a senior lawyer. Another lawyer felt Aryan has been targetted just because he is Shah Rukh Khan’s son.
“The hon’ble court should have considered Aryan’s 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. It’s a bailable offence that the department is trying to shape as non-bailable by giving the story of international link to the case. It’s most unfortunate that the matter has been given a political shape,” said Jaikush Hoon, a senior lawyer with the SC.
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