No evidence of conspiracy, nothing objectionable in WhatsApp chats | Full text of Aryan Khan’s bail order 

The bail order of Aryan Khan in the Mumbai cruise drugs case noted that hardly any evidence was found to suggest a conspiracy between Aryan Khan, Arbaaz Merchantt, Munmun Dhamecha and the other accused in the case.

The Bombay High Court has released a detailed bail order of Bollywood superstar Shah Rukh Khan’s son Aryan Khan in the Mumbai cruise drug seizure case. The order noted that there was “hardly any positive evidence” to suggest a conspiracy between Aryan Khan and the two other accused-- Arbaaz Merchantt and Munmun Dhamecha—to commit an offence. The high court pointed out that nothing objectionable could be found in the WhatsApp chats extracted from Aryan Khan and Arbaaz Merchantt to suggest that the three accused in the case hatched a conspiracy to commit the offence in question. The court noted that there is hardly any positive evidence on record to suggest that “all the accused persons with common intention agreed to commit unlawful act”. The order stated that there is absence of material on record of the applicants—Aryan Khan, Arbaaz Merchantt, and Munmun Dhamecha-- having meeting of minds with other accused who were named in the case. The court noted that the prosecution argued that applicants have admitted to committing an offence and it also amounts to an offence under the NDPS Act. The court, however added, that even if it is appreciated, the maximum punishment prescribed is not more than one year for such offence.“Applicants have already suffered incarceration for almost 25 days,” the High Court said. The court also underlined that "the applicants were not even subjected to medical examination so as to determine whether at the relevant time, they had consumed drugs." On the prosecution’s argument that the accused had admitted to committing the crime, the court said, "However, in view of submissions made by Mr Singh, [NCB's lawyer] it is worth to clarify here that 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 as has been alleged against them." Referring to the Supreme Court judgement that the prosecution relied upon to claim that high degree of evidence is not required at this stage of the proceedings to establish the case of conspiracy, the Bombay High Court stated that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the applicants. “Merely because applicants were travelling on the cruise that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the applicants,” Aryan Khan’s bail order noted. The Bombay High Court said that the NCB’s claim that the applicants should be considered to have intention to commit an offence under the NDPS Act, having been found in possession of commercial quantity, in the backdrop of case of hatching conspiracy is liable to be rejected. Court also said that though the prosecution opposed bail on the requirement under Section 37 of the NDPS Act, which are cognizibility and the non-bailable offence, provisions of said Section 37 prima facie will not be attracted in this case as no material on record was found to infer that applicants have hatched conspiracy to commit the offence.That being so, at this stage, it is difficult to infer that applicants are involved in an offence of commercial quantity. As such, parameters laid down under Section 37 of the NDPS act will be of hardly any consequence, the bail order read.

Giving out the bail order, Justice Sambre observed that there has to be positive evidence about an agreement to do an unlawful act or to do a lawful act by unlawful means and such agreement must proceed with meeting of minds.