A Mumbai Court has on Thursday rejected further NCB Custody of Aryan Khan, son of Bollywood actor Shahrukh Khan, actor Arbaaz Merchant and model Munmun Dhamecha and other accused in the Cruise ship drugs case.
Aryan Khan and 7 other accused have been remanded to judicial custody instead.
"No custodial interrogation is required as sufficient time was granted to the investigating officer for investigation," Additional Metropolitan Magistrate RM Nirlekar said.
The Court observed that while there is no doubt that it is NCB's right to claim custody for investigation, simply remanding the accused to NCB custody would violate their fundamental rights enshrined in the constitution.
Additional Metropolitan Magistrate RM Nirlekar noted that considering the date of arrest of the accused and taking ASGs arguments as it is, by no stretch of imagination it can be said that the custody of the accused is necessary with the NCB authorities because Aryan's statement was recorded on 3rd wherein he disclosed Aachit's name but Aachit was arrested yesterday.
The Court however stated that it does not want to go into that aspect as to why the Investigating Officer took so much time to arrest Aachit, alleged to have supplied drugs to Aryan Khan and Arbaaz Merchant.
The Court also found force in submissions made by Counsels for Aryan Khan and the other accused that when Aryan and Aachit were in NCBs custody since October 6, nothing was investigated.
Before passing the order, the Court noted that according to decisions cited by the accused only in exceptional circumstances Police custody should be sought.
The Court also made note of submissions made by ASG Anil Singh appearing for Narcotics Control Bureau that further custody of the accused is required considering the subsequent events.
The Court recorded submissions made by Aryan Khan's Counsel Advocate Satish Maneshinde who prayed for judicial custody and said that except for being interrogated once, he has not been interrogated and the remand report clearly shows that his presence is not necessary.
"The same has been reiterated by the other accused, who added that the remand is vague, cleverly drafted alleging conspiracy. They argued that even after five days the NCB failed to establish the nexus of the accused. And in these circumstances police custody is not justified," the Court recorded.
The NCB had today sought custody of the 8 accused in the case, including Aryan Khan, Arbaaz Merchant Munmun Dhamecha, Nupur Satija, Ishmeet Singh, Mohak Jaswal, Vikrant Chhoker, Gomit Chopra till October 11th.
ASG Anil Singh argued that prima facie it appears it is a case of conspiracy, and therefore confrontation of these 8 persons is necessary for the case. He added that confrontation of these accused with the other accused Aachit Kumar and the intercepted foreign national is also essential for the investigation of the case and to ascertain the role played by each individual in this nexus in the supply chain
Advocate Satish Maneshinde appearing for Aryan Khan argued that Aryan Khan's custody was no longer required and nothing was recovered from him. He argued that Aryan cannot be held hostage while NCB arrests the other culprits and the question of confronting Aryan Khan with someone cannot be the only ground to remand him to custody.
On Thursday, Special Prosecutor for the NCB, Advocate Advait Sethna sought custody of all the accused persons till October 11. The NCB submitted before the Court that so far 17 people had been arrested. The new detainee Aachit Kumar had been arrested on October 6 along with the recovery of contraband on the basis of the statements of both Aryan Khan and Arbaaz Merchant. Thus, for further investigation, confrontation with the already accused persons is necessary, the NCB contended.
"Confrontation of these respondents with the said accused no. 17 Aachit Kumar and the intercepted foreign national is essential for the investigation of the case and to ascertain the role played by each individual in this nexus in the supply chain.", the remand application stated.
Advocate Advait Sethna informed the Court that the accused Achit Kumar is part of the Ganja supplying network, and 2.6 grams of ganja was recovered from him. Also he was the supplier for the accused Aryan and Arbaz Merchant.
He argued that since new facts and nuances are coming up, and there is an apparent nexus, custody is being sought till 11 to keep everyone on the same pedestal.
Advocate Ashwin Thool appearing for one of the accused Aachit Kumar argued that if the NCB is saying his client is part of a network, why has he been charged only with consumption.
"The way this agency lies, I am saying this with some responsibility. At 2pm they come.to my house on the 5th. I am in their custody since then. Now they show me arrested on the 6th. They are lying before this court. These lies need to stop somewhere," Mr Thool said.
Arguing that the Agency is on document lying to the court, Advocate Ashwin Thool stated that once Aachit gets remanded to NCB's custody by the Court, the illegality will get regularised.
He stated that since only a small quantity was recovered from his client, judicial custody may be given so he may apply for bail.
Responding to Mr Thool's allegations that NCB has lied on paper, Advocate Sethna remarked "I compliment the linguistic ability of my friend...only one word lies lies lies... This has become a trend that we are illegally detaining."
Additional Metropolitan Magistrate RM Nirlekar then asked NCB's Counsel to respond to Mr Thool's allegation that if his client was picked up from his house on 5th, NCB had to produce him on the 6th.
"These are conjectures and surmises," Sethna responded.
Advocate Sethna on behalf of NCB, urged the Court to grant the custody saying that the officers are working day in and day out
"Drug abuse is becoming like a malignant tumor," he said
Responding to Advocate Sethna's argument that drug abuse has become a tumour, Mr Thool said "Who is the disease? Consumers are not the disease, they are the victims. The Supreme Court has repeatedly said that courts are not supposed to go after them with a gun."
"Where have said in the their application that I am connected to a drug lord? When you ask them, they will talk about tumors. The court needs to step in somewhere," Mr Thool said.
Aachit Kumar remanded to NCB's custody (Order):
The Court noted that the Special Public Prosecutor has prayed for police custody of the accused Aachit Kumar arguing that he part of the ganja trafficking network and investigation is at a preliminary stage.
The Court recorded the submissions made by Counsel for the accused who argued that Aachit's arrest is an illegal arrest at the hands of the NCB since three officers had left with his custody at 5pm on October 5 and on October 6 he was asked to call his parents at 9pm. The Counsel further stated that according to provisions of the Criminal Procedure Code, such detentions can be allowed only in special circumstances and the Magistrate should give reasons for authorising the detention and the whole scheme is to limit the period of detention.
"From the search and seizure report dated 5/10/2021 and statement recorded under Section 67, that the submission made by the accused cannot be taken into account at this stage." the Court said
Additional Metropolitan Magistrate RM Nirlekar further observed that he does not want to go into the evidentiary value of the statement of the accused. He added that prima face the name of the accused was revealed, and whether he was part of the conspiracy is a matter of fact in issue and needs to be investigated.If done now, it will amount to pre trial.
The Court has therefore remanded Aarchit Kumar, alleged to have supplied drugs to Aryan Khan and Arbaaz Merchant to NCB's custody till 9th October. The Court has also decided to keep his bail application in abeyance till the time of his custody.
NCB Seeks Remand Of Other Accused Including Aryan Khan Till 11th October:
The other 8 accused in the case, including Aryan Khan, Arbaaz Merchant Munmun Dhamecha, Nupur Satija, Ishmeet Singh, Mohak Jaswal, Vikrant Chhoker, Gomit Chopra were then produced in the Court.
Seeking custody of these 8 accused till October 11th, ASG Anil Singh argued that prima facie it appears it is a case of conspiracy, and therefore confrontation of these 8 persons is necessary for the case. He added that confrontation of these accused with the other accused Aachit Kumar and the intercepted foreign national is also essential for the investigation of the case and to ascertain the role played by each individual in this nexus in the supply chain.
Taking Court through the progress made in the investigation, ASG submitted that from October 4th till today NCB has intercepted organisers and suppliers and the custody of the accused is needed to establish the entire gang that is operating.
He informed the Court that accused Aachit was arrested based on accused Aryan Khan's statement, and the entire chain will have to be seen.
Referring to an application filed by Aryan Khan's counsel seeking withdrawal of the one of the statement he made, ASG argued that the Law is well settled on retraction and it is to be seen at the stage of trial.
Advocate Satish Maneshinde appearing for Aryan Khan submitted that he had readily agreed for one day remand, on sunday. However, apart from the arrest of unconnected accused, nothing happened on October 4.
Citing the case of 'Toofan Singh', he argued that case statement under 67 of NDPS Act can be used only for investigation.
Mr Maneshinde argued that the question of confronting Aryan Khan with someone cannot be the only ground to remand him to custody.
He stated that if NCB had arrested someone(Aachit) based on his statement, any senior officer will confront him with Aryan on the first day to ascertain if he had any association with him and not on the 5th.
"Now they have arrested cruise organisers... Now conspiracy will be if I have any association with anyone else on the ship," Mr Maneshinde remarked
Maneshinde stated that Aryan Khan was called by a friend Pratik Gaba to give some credence to the cruise, was told he will get a VIP Suit, and probably invited to add glamour to the cruise being from Bollywood.
"They searched everything, bag they searched twice. Didn't find anything. They took my mobile," Mr Maneshinde said.
Maneshinde argued that he has owned up from day one that nothing was recovered from Aryan, and if even in 7 days NCB has been unable to say anything to 'unearth conspiracy' there can be nothing now. Further, Aryan can be called at any time if confrontation with any accused is required.
"In the last 39 years I have not seen one main culprit brought before the court. We cannot be held hostage so that they arrest those people," he said.
Talking about how the investigation has not really progressed, Mr Maneshinde stated "a a small quantity has been recovered from Arbaaz to Aachit, they may have known that we know him, but I have not bought anything. I know the ASG, that doesn't mean we are involved in a nefarious activity"
Advocate Ali Kashiff appearing for accused Munmum Dhamecha claimed she does not know Aryan or Arbaaz. He added that whatever is shown to be recovered was recovered from the room.
Mr Kashiff questioned why Dhamecha's custody is being sought when there is nothing about her in the remand application.
"There is nothing about me in the entire remand application, why are they asking for my custody? I have also filed an application for CCTV, from when I was searched. Just because I was there on the ship? All 1300 should be arrested then," Kashiff said.
Advocate Taraq Sayed appearing for Arbaaz Merchant submitted that the NCB has tried to prejudice the court that there are multiple seizures made.
"In these five days, is the NCB incompetent and inept to investigate 6gms of charas (allegedly recovered from him)? Where is the question of custody. They are saying they want to confront. How long does it take to confront?" Mr Sayed said
Advocate Ashish Raghuvanshi appearing for accused Vikrant Chhoker argued that he has been in NCB's custody for 114 hours and they are answerable for every minute. He added that there is nothing against him in the remand report, and NCB hasn't been able to even establish the connection between these 8 accused.
Advocate Lakshmi Raman appearing for accused Mohak Jaswal while praying for judicial custody argued that there is nothing in the remand report for Mohak Jaswal and it is not the NCB's case that he has been found in possession.
Advocate Ayaz Khan appearing for two accused Nupur and Ishmeet submitted that all 8 accused have been in custody since October 2nd. He added that most of the accused in this case are arrested with small quantities, and can be awarded just a fine if found guilty with maximum imprisonment of 1 year.
"According to them, I have told them who gave me the contraband. He has been arrested.. Identified. Why am I needed? Why is Aachit required to identify me?" Mr Khan said.
In his closing statement, ASG Anil Singh said "My friend Mr Maneshinde argued like a story, as if no one knows anyone and there is no conspiracy. He claims he(Aryan Khan) was innocent. Only in this respect I want to show his statement. It is on the basis of this statement that Achit has been apprehended." He said
ASG Anil Singh for NCB submitted that it is not right to say that all eight accused are not connected.
Responding to allegations of the investigation not progressing, he stated that the NCB has raided that main supplier today.
"It's not like we are sitting in the office doing no work. You cannot guide me in what manner I have to investigate," ASG told Mr Maneshinde
"We are an agency. Justice will be done to everybody. I don't care what background he has, everyone has to be investigated," ASG remarked.
"Nupur was in a different room, Ishmeet was in a different room. This cruise was more like a floating motel. There may be a sun down party but they were doing it in their own rooms," Advocate Ayaz said.
On October 2, NCB's zonal director Sameer Wankhede led a team of officers for a raid at the International Terminal of Mumbai Port Trust from where the Cordelia Cruise liner was to depart for Goa.
Eight people were detained after the NCB allegedly seized intermediate and small quantities of cocaine, MDMA (ecstasy), charas and Rs 1,33,000 cash.
Khan, Merchant and Dhamecha were the first to be arrested. They were booked under sections 8(c) read with 20b (purchase), 27 (consumption), 28 (attempt to commit offence), 29 (abetment/ conspiracy) and 35 (presumption of culpable mental state) of the NDPS Act, after six and five grams of charas was allegedly seized from Merchant and Dhamecha respectively.
Nothing was recovered from Khan.
So far, the NCB has arrested 17 people in the case and recovered commercial quantities of drugs, as well.
The agency arrested several individuals after the cruise that was allowed to set sail following the raid, returned from Goa, on Monday.
Those arrested include 10 guests, four event organisers, two alleged suppliers and one consumer. Eight people are booked under the stringent section 27A of the NDPS Act for financing illicit traffic and harbouring offenders attracting a 20-year jail term.
Arguments from October 4
During the last hearing on October 4, Additional Solicitor General Anil Singh sought extension of their remand citing WhatsApp chats, alleging that it clearly showed a nexus of the accused with suppliers and peddlers on a regular basis.
The NCB claimed that "shocking and incriminating material" was found from Khan's mobile phone and there are links in the form of pictures, chats etc pointing towards "international drug trafficking."
Khan's counsel has claimed he was invited by the organisers as a special invitee, neither did he have a boarding pass, nor an allotted seat number or cabin. He was arrested before boarding and despite being screened twice, nothing was found on him.
Edited By: Srishti Ojha & Aratrika Bhaumik