NCB Case Entirely Based On Inadmissible 'Voluntary' Statements & WhatsApp Chats : Aryan Khan's Bail Plea Before Bombay HC

In the application seeking bail in the cruise ship drugs case, Aryan Shahrukh Khan has told the Bombay High Court that the entire case of the Narcotics Control Bureau is based on "voluntary" statements given under Section 67 of the NDPS Act, which are inadmissible in evidence as per last year's Supreme Court judgment in the Tofan Singh case.

"...apart from inadmissible and illegally obtained material there is absolutely no material against the Applicant to justify his arrest and incarceration. The entire case of the prosecution is based solely on the statement of the Applicant u/s. 67 NDPS Act, which has been held to be inadmissible in Tofan Singh's case and purported Whatsapp messages purportedly recovered from the mobile phone purportedly seized from the Applicant in flagrant violation of S. 100 Cr. P. C. and Section 50 NDPS Act and Art 20 of the Constitution of India. Furthermore such Whatsapp messages have no evidentiary value and a persons liberty for an offence punishable with one year cannot be deprived on such basis", the bail plea reads.

He has further stated that the way a person's status should not entitle him to any special privileges before the court of law, he must also not be saddled with an additional liability, as all are equal before a court of law.

He added that there is no presumption in law that merely because a person is influential, he would tamper with the investigation.

A sessions court rejected Khan's bail application, on Wednesday. On Tuesday, his plea seeking interim bail and for final reliefs will be heard by the Bombay High Court.

False Confession

According to this seizure panchnama, Merchant allegedly told the raiding team that he consume[s] charas with Aryan and they were going inside the Cordelia cruise for a blast, and Khan allegedly agreed that the charas was for smoking on the cruise.

Khan claims that the "secret information" the Narcotics Control Bureau received against him was obviously false since nothing was recovered from him during the raid on October 2 and the "matter should have ended there," but instead the alleged recovery of 2.6 grams of charas from his friend Arbaaz Merchant was sought to be connected with him by means of a false confession in the panchnama.

WhatsApp Chats

The bail application filed through advocate Satish Maneshinde assisted by advocate Anandini Fernandes states that alleged WhatsApp messages are ex-facie for a period before the incident. NCB received the secret information of the rave party onboard the Cruise Liner Cordellia.

"Hence by no stretch of imagination can those purported messages be linked to any conspiracy for which the secret information was received. Hence the invocation of the charge of conspiracy is wholly unjustified."

The interpretation of the Whatsapp messages is that of the investigating officer, and these interpretations are unjustified and wrong, the plea states.

Confessional Statement u/s 67 of NDPS Inadmissable

The bail application further contends that there is no material against Khan to justify his arrest and incarceration. The entire case of the prosecution is based solely on the statement of the Applicant u/s. 67 NDPS Act, which has been held to be inadmissible in Tofan Singh's case.

Whatsapp messages apparently recovered from the mobile phone allegedly seized from the Khan is in violation of S. 100 CrPC, NDPS Act and Art 20 of the Constitution of India.

"Furthermore such WhatsApp messages have no evidentiary value and a persons liberty for an offence punishable with one year cannot be deprived on such basis."

Bar under section 37 of NDPS Act won't apply

Given that no commercial quantity has been alleged against Khan and that all allegations pertain only to small quantities, the embargo imposed by Section 37 of the NDPS Act, 1985, would not be applicable.

"This is case of no evidence at all, even if the court comes to the conclusion that offences under the NDPS Act are non-bailable there is no evidence to charge the applicant for any offence under the Act," the bail application states.

Other grounds include no communication with any of the organisers about drugs, the arrest panchnama did not mention section 29(conspiracy) of the NDPS Act, and the charge was added later. Moreover, recoveries from other accused cannot be foisted on him.

"That the NCB are verily misleading the Hon'ble Courts by linking the Khan with the other co-accused and to the recoveries made from such persons. Khan submits that save and except for Arbaaz Merchant, who is a friend, and Aachit Kumar, whose name is alleged to have been revealed by the Khan, he has never had any connection or contact with the other accused."

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