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MUMBAI: “Since there was no recovery; no consumption, no medical examination to show consumption…not even a party. I submit that Aryan Khan was wrongly arrested’’ said former Attorney General of India Mukul Rohatgi on Tuesday. “The case is short and simple,’’ he said adding the Special Judge’s finding that Khan was in conscious possession of six gram of charas found in friend’s shoe “is too tenuous and farfetched’’.
“It is elementary that ‘conscious possession’ needs direct control,’’ said Rohatgi. He said NCB case against him on chats cannot be considered at the bail stage, besides “none of the chats deal with cruise, and they are at least a year old,’’ he said.
It was the start of a high voltage hearing after much courtroom drama involving Justice Nitin Sambre even exiting the courtroom to ensure Covid SOP is followed as his court room got jampacked much before the Khan’s bail plea was called out.
It is a case of a 23 year old, back last year from US where he was studying said Rohatgi assisted by advocate Satish Maneshinde. “with no possession or consumption, why this boy has been sent to 20 days in jail? Rohatgi asked in his booming voice.
“There is no question of conscious possession. “Conscious possession is what is known to one and under his or her direct control. What is in his (friend Arbaaz Merchant’s ) shoes, which he has denied, cannot be a case of Khan’s conscious possession.’’
“I don’t want to prejudice case of A 2 (Merchant). He has I believe denied possession, but since nothing was found on me (Aryan Khan) you cannot take the case any further,’’ said Rohatgi saying it is a fit case for his bail.
“This is not a case of any master servant relationship that Khan have asked anyone one to bring anything. Even if possession is assumed, it was six gram and maximum punishment is up to a year,’’ said Rohatgi.
“This case has attracted public and media gaze because of Khan’s parents—father is Shahrukh Khan. But referring to a purported October 23 affidavit by an alleged pancha Prabhakar Sail being relied on by Narcotic Control Bureau (NCB) to oppose his bail, Rohatgi said the “unsavoury controversy between political personalities and NCB cannot rub off on me.’’
The NCB said the affidavit makes a “clear case’’ of alleged tampering by a manager of Khan to derail its probe for that reason alone the bail be denied.
Rohatgi too made it clear that he distanced himself from the “unsavoury controversy’’. “Khan is not making any allegations against any individual or director in the NCB,’’ he said adding he did not want to be sullied by it and questioned the change of stance of the NCB which on Monday said it was due to a personal vendetta of a politician and “now they are trying to rub it off on me by saying there is a manager Pooja. I have denied anything to with the affidavit. We are not making any allegations against NCB or its officers.’’
Rohatgi said he filed a one page rejoinder which said Khan “has no connection or concern with Sail …or with his purported employer K P Gosavi who is also a panch witness or with the allegations and counter allegations presently on public media, between NCB zonal director and certain political personalities.’’ He said the bail plea be decided “on merits uninfluenced by the assertions’’ in the affidavits.
There is no evidence of any “conspiracy’’ as alleged by NCB later, to connect him with any offence of illicit trafficking or financing under section 27A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, which is not even what he has been booked for or charged with said the senior counsel who flew down from London last night.
“The charge of conspiracy is to indirectly bring in section 27 A of NDPS act for illicit trafficking, that is what I gather though Aryan had not been charged with 27A,’’ said Rohatgi.
“In any case there is no material to show that (Aryan Khan) had any truck or meeting of mind with anyone else,’’ said Rohatgi.
“These are young people. The approach is to not put them in jail. The Act provides for immunity from prosecution if a person is a consumer. Consumers have to be treated as victims,’’ said Rohatgi.
“My case is that section 37 (a fetter on bail, requiring court to hold there is no prima facie case against accused to grant bail) doesn’t apply because Section 27A doesn’t apply,’’ said Rohatgi.
The special NDPS Judge had on October 20 held that Khan knew of the six gm concealed in his friend and co-accused Arbaaz Merchant’s shoe and hence held it to be in his “conscious possession’’ too to attract of section 8(c ) with 20 (b) of the anti-drug law.
The HC is hearing three bail applications including those of Merchant, 26 and Munmun Dhamecha, 28, a fashion model from Madhya Pradesh after Sessions court denied them bail.
The trio had immediately moved the HC to seek, Khan’s senior counsel in Sessions court had argued was the most important fundamental right guaranteed to them under the Indian Constitution, their liberty.
The Narcotic Control Bureau (NCB) which arrested them along with five others following on October 2 raid at the international cruise terminal had found no drug on Aryan and allegedly found small quantities of six gram on his friend and 5 gram from the floor of Munmun’s cabin on the cruise ship which was to set sail for Goa.
Later in court, for remand, the NCB said all accused are connected in “conspiracy” sying it had seized Khan’s mobile phone, and opposing his bail cited chats with a “foreign national” to argue that it needs to be investigated by the MEA.
Rohatgi said, “There is no evidence. There may be some lady in London or somewhere and there are chats and the NCB is trying to link these to this case, without evidence.’’
Rohatgi referred to a chart to show recoveries and arrest and said at best Khan can be connected to Merchant his friend and A17 (Aachit Kumar) based on NCB case. “But Aachit was not on the cruise. He was arrested on October 6, from his house, no prior agreement or meeting of minds for this case.’’
When Justice Sambre asked about the chart, senior counsel Amit Desai appearing now as lead counsel for Merchant, along with advocate Taraq Sayed, got up to explain. He said Kumar is “also a young, 22-year-old, from friend circle. Alleged chats were about online poker’’ adding äs you know online gaming has risen.’’
“There was nothing beyond communication about Poker,’’ both said.
He cited a list of judgments for bail and said Khan’s case was better than all these. He cited a recent October 12 judgement of Bombay HC to show conscious possession cannot be attracted as it needs to be proved by “direct control’’.
“At the end of it where are we today. What the NCB may use is the chats. But I want to say they are unconnected events,’’ said Rohatgi, adding, “He has roots in society.’’
Desai started arguing for Merchant. He started by saying that the charge of “conspiracy” was at the heart of the NCB case and that conspiracy requires a “meeting of minds or an agreement prior to the alleged act” of which here there was none shown. Desai will continue on Wednesday, after which Dhamecha’s lawyer Ali Khan and then the NCB counsel Additional Solicitor General Anil Singh assisted by advcates Shriram Shirsat and Advait Sethna will finally argue.
“It is elementary that ‘conscious possession’ needs direct control,’’ said Rohatgi. He said NCB case against him on chats cannot be considered at the bail stage, besides “none of the chats deal with cruise, and they are at least a year old,’’ he said.
It was the start of a high voltage hearing after much courtroom drama involving Justice Nitin Sambre even exiting the courtroom to ensure Covid SOP is followed as his court room got jampacked much before the Khan’s bail plea was called out.
It is a case of a 23 year old, back last year from US where he was studying said Rohatgi assisted by advocate Satish Maneshinde. “with no possession or consumption, why this boy has been sent to 20 days in jail? Rohatgi asked in his booming voice.
“There is no question of conscious possession. “Conscious possession is what is known to one and under his or her direct control. What is in his (friend Arbaaz Merchant’s ) shoes, which he has denied, cannot be a case of Khan’s conscious possession.’’
“I don’t want to prejudice case of A 2 (Merchant). He has I believe denied possession, but since nothing was found on me (Aryan Khan) you cannot take the case any further,’’ said Rohatgi saying it is a fit case for his bail.
“This is not a case of any master servant relationship that Khan have asked anyone one to bring anything. Even if possession is assumed, it was six gram and maximum punishment is up to a year,’’ said Rohatgi.
“This case has attracted public and media gaze because of Khan’s parents—father is Shahrukh Khan. But referring to a purported October 23 affidavit by an alleged pancha Prabhakar Sail being relied on by Narcotic Control Bureau (NCB) to oppose his bail, Rohatgi said the “unsavoury controversy between political personalities and NCB cannot rub off on me.’’
The NCB said the affidavit makes a “clear case’’ of alleged tampering by a manager of Khan to derail its probe for that reason alone the bail be denied.
Rohatgi too made it clear that he distanced himself from the “unsavoury controversy’’. “Khan is not making any allegations against any individual or director in the NCB,’’ he said adding he did not want to be sullied by it and questioned the change of stance of the NCB which on Monday said it was due to a personal vendetta of a politician and “now they are trying to rub it off on me by saying there is a manager Pooja. I have denied anything to with the affidavit. We are not making any allegations against NCB or its officers.’’
Rohatgi said he filed a one page rejoinder which said Khan “has no connection or concern with Sail …or with his purported employer K P Gosavi who is also a panch witness or with the allegations and counter allegations presently on public media, between NCB zonal director and certain political personalities.’’ He said the bail plea be decided “on merits uninfluenced by the assertions’’ in the affidavits.
There is no evidence of any “conspiracy’’ as alleged by NCB later, to connect him with any offence of illicit trafficking or financing under section 27A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, which is not even what he has been booked for or charged with said the senior counsel who flew down from London last night.
“The charge of conspiracy is to indirectly bring in section 27 A of NDPS act for illicit trafficking, that is what I gather though Aryan had not been charged with 27A,’’ said Rohatgi.
“In any case there is no material to show that (Aryan Khan) had any truck or meeting of mind with anyone else,’’ said Rohatgi.
“These are young people. The approach is to not put them in jail. The Act provides for immunity from prosecution if a person is a consumer. Consumers have to be treated as victims,’’ said Rohatgi.
“My case is that section 37 (a fetter on bail, requiring court to hold there is no prima facie case against accused to grant bail) doesn’t apply because Section 27A doesn’t apply,’’ said Rohatgi.
The special NDPS Judge had on October 20 held that Khan knew of the six gm concealed in his friend and co-accused Arbaaz Merchant’s shoe and hence held it to be in his “conscious possession’’ too to attract of section 8(c ) with 20 (b) of the anti-drug law.
The HC is hearing three bail applications including those of Merchant, 26 and Munmun Dhamecha, 28, a fashion model from Madhya Pradesh after Sessions court denied them bail.
The trio had immediately moved the HC to seek, Khan’s senior counsel in Sessions court had argued was the most important fundamental right guaranteed to them under the Indian Constitution, their liberty.
The Narcotic Control Bureau (NCB) which arrested them along with five others following on October 2 raid at the international cruise terminal had found no drug on Aryan and allegedly found small quantities of six gram on his friend and 5 gram from the floor of Munmun’s cabin on the cruise ship which was to set sail for Goa.
Later in court, for remand, the NCB said all accused are connected in “conspiracy” sying it had seized Khan’s mobile phone, and opposing his bail cited chats with a “foreign national” to argue that it needs to be investigated by the MEA.
Rohatgi said, “There is no evidence. There may be some lady in London or somewhere and there are chats and the NCB is trying to link these to this case, without evidence.’’
Rohatgi referred to a chart to show recoveries and arrest and said at best Khan can be connected to Merchant his friend and A17 (Aachit Kumar) based on NCB case. “But Aachit was not on the cruise. He was arrested on October 6, from his house, no prior agreement or meeting of minds for this case.’’
When Justice Sambre asked about the chart, senior counsel Amit Desai appearing now as lead counsel for Merchant, along with advocate Taraq Sayed, got up to explain. He said Kumar is “also a young, 22-year-old, from friend circle. Alleged chats were about online poker’’ adding äs you know online gaming has risen.’’
“There was nothing beyond communication about Poker,’’ both said.
He cited a list of judgments for bail and said Khan’s case was better than all these. He cited a recent October 12 judgement of Bombay HC to show conscious possession cannot be attracted as it needs to be proved by “direct control’’.
“At the end of it where are we today. What the NCB may use is the chats. But I want to say they are unconnected events,’’ said Rohatgi, adding, “He has roots in society.’’
Desai started arguing for Merchant. He started by saying that the charge of “conspiracy” was at the heart of the NCB case and that conspiracy requires a “meeting of minds or an agreement prior to the alleged act” of which here there was none shown. Desai will continue on Wednesday, after which Dhamecha’s lawyer Ali Khan and then the NCB counsel Additional Solicitor General Anil Singh assisted by advcates Shriram Shirsat and Advait Sethna will finally argue.
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