In neither case was the central agency able to show any drug seizures on Aryan or Rhea, nor did it carry out blood tests on either of them to determine whether they had consumed drugs.

In both cases, the NCB detained the two suspects, got access to their mobile phones, and used material stored in the devices, including deleted WhatsApp chats, to arrest them.

The NCB arrested Chakraborty last year only on the basis of WhatsApp chats found on her phone.

This material was given to the NCB by the Enforcement Directorate (ED), which was investigating Chakraborty along with the Central Bureau of Investigation (CBI) following the death by suicide of her boyfriend, actor Sushant Singh Rajput, in June 2020.

The NCB said some chats in Chakraborty’s phone were related to procuring narcotics for Rajput, registered an FIR, and arrested her. The agency later said it had found evidence of monetary transactions made by her to purchase drugs, which corroborated the contents of the chats.

The NCB charged Chakraborty with consuming narcotics as well as under Section 27A of The Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, which describes the “punishment for financing illicit traffic and harbouring offenders”.

It alleged that Chakraborty was “active member of a drug syndicate”, and that she had procured narcotics for Rajput.

While granting bail to Chakraborty bail in October 2020, the Bombay High Court, however, said she was “not part of the chain of drug dealers”, and “she ha[d] not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits”.

In the case of Aryan Khan, who was detained after a raid on a cruise ship off Mumbai earlier this month, the NCB claimed to have found 6 grammes of charas on Arbaaz Merchant, who had accompanied Khan on the cruise.

It took over Khan’s mobile phones, and said there was evidence in WhatsApp chats that indicated consumption of narcotics, along with his two voluntary statements.

Merchant’s lawyer Taraq Sayed argued that the chats proved nothing in isolation, as sending a message was not the same as committing the act.

The statements were retracted by Khan.

Additional Solicitor General Anil Singh (ASG) said one of the chats was an alleged discussion about “bulk quantities of hard drugs” which, he argued, indicated that it was not for personal consumption alone. The NCB has submitted the chats to the court, but their contents have not been made public.

Senior counsel Amit Desai, representing Khan, told the court that none of the chats contained a discussion about a rave on the cruise, purportedly the information on which the NCB based its raid.

Sayed told the court that the WhatsApp chats could not be relied upon as there was no panchnama to show that Khan’s and Merchant’s mobiles had been seized.

ASG Singh denied this, stating that the accused had handed over their phones.

It has been argued in earlier cases that WhatsApp chats prove nothing in the absence of corroborative evidence.

The Anti-Narcotic Cell of Mumbai Police had arrested actor Dhruv Tahil earlier this year, and claimed to have found WhatsApp chats with an alleged narcotics supplier on his phone, as well as evidence of monetary transactions between them. Both men were given bail in June; the court said no conspiracy or drug trafficking had been proven.

Lawyer Shekhar Jagtap who represented Tahil, said, “A person may be boasting on a chat but may not follow up with the alleged offence. So unless there is any other corroborative evidence to show that the act was committed, the offence cannot be proved based on chats alone.”

Agencies like the NCB normally focus on major drug peddlers and suppliers, and only get involved in cases of consumption of contraband if they bust, for instance, a party where drugs were consumed.

In such cases, generally a blood test is done, and those who test positive for drugs are charged with consumption.

Courts have in the past spoken about treating those found consuming drugs as victims. Under the NDPS Act, those charged with consumption are not punished if they are willing to undergo de-addiction.

Actor Fardeen Khan, who was arrested in 2001 by NCB for consuming cocaine, opted for de-addiction. “In 2001, the legislature also took a softer approach for consumers considering them as victims of the drug menace. In a rare instance, the punishment for consumption was reduced from five years to one year,” Desai told the court.

On July 10 this year, the NCB carried out a raid in Mumbai’s Mahim area, arrested a drug peddler named Shamim Nagor, and recovered hashish worth Rs 10 lakh from him. Some young people whom the NCB suspected had bought drugs from him were allowed to go after they were counselled and their parents were informed.

The NCB has argued that the bar is higher for celebrities because they are role models and bear additional responsibility. While granting bail to Chakraborty last year, the Bombay HC had disagreed with this contention. “I do not agree. Everyone is equal before the law,” the court had said.