On October 28, 2021, Justice Nitin Sambre granted the trio bail. The order was
made available in its entirety. They've been charged under the NDPS Act's
Section 8(c) read with Section 20(b), Sections 27, 28, 29, and 35.
"Having regard to the material brought on record by the Respondent (NCB) on the
issue of conspiracy, this court prima facie has not noticed any positive
evidence against the Applicants on the said issue. This Court is of the opinion
that the claim put forth by the Respondent that Applicants should be considered
to have the intention to commit an offense under the NDPS Act, having found in
possession of commercial quantity, in the backdrop of case of hatching
conspiracy is liable to be rejected."
NCB argued that because Section 29 of the NDPS Act, which deals with conspiracy,
as applicable, the conditions for bail under Section 37 of the NDPS Act would
apply, and the total amount recovered should be taken into account.
The court stated that in order to prove conspiracy, there must be positive proof
of an agreement to commit an illegal act, which must precede a meeting of minds.
And, in the matter at hand, it is a fact that Khan and Arbaaz were traveling
together, although Dhamecha had her own travel plans, according to the court.
- Conspiracy isn't revealed in WhatsApp chats
The court also stated that there is nothing in Aryan Khan's WhatsApp
communications that suggests a conspiracy between him, Arbaaz Merchant, and
Munmun Dhamecha: Bombay High Court.
"Nothing unpleasant could be found in the WhatsApp chats recovered from
Applicant/Accused no. 1's(Khan) phone to imply that Applicant nos. 1 & 2(Arbaaz
Merchant) or all three applicants, along with other Accused individuals in
agreement, have formed a conspiracy to conduct the offense in question."
Traveling on the same ship is a great way to meet new people. There isn't enough
evidence to prove that there is a conspiracy. The court stated that the mere
fact that Aryan Khan, Arbaaz Merchant, and Munmun Dhamecha were on the same
cruise could not be used to support a conspiracy charge.
"There is practically any positive evidence on record to satisfy this court that
all the accused persons with common intent decided to do criminal activities,"
the court concluded, dismissing the NCB's contention that the cases of all the
accused should be considered together.
"This court is compelled to be sensitive to the fact that basic material in the
form of evidence must be present in order to sustain the case of conspiracy
against the applicants," the court continued. Simply because the petitioners
were on the cruise does not constitute a sufficient basis for using the
provisions of Section 29 (of the NDPS Act for conspiracy) against them."
- Claims made by ASG during the course of the hearing pertaining to
During the hearing, the ASG claimed, "My argument is that we have detained 20
people so far, four of them are drug dealers. One of them was discovered to have
a commercial quantity". Shivraj and Achit were narcotics dealers. The reason I
bring this up is that in a conspiracy case, it is not required that a commercial
amount or an intermediary quantity be discovered with all of the accused; if
Section 29 of the NDPS Act applies, then there is a conspiracy. When Section 29
is used, the person who is accused of the crime is charged with the same crime
as the conspirator."
- Can communication like as WhatsApp chats/messages or call recordings in
which a person discusses purchasing, selling, or consuming not be used as
It can be utilized in a court of law if the dialogue is supported by proof. For
example, if a person sends a message ordering a medicine, there must be proof
that the drug was delivered. " A person can place an order and then cancel it at
the last minute, preventing the medications from being delivered. A person may
just be bragging to a friend that he or she has done drugs. Small-time criminals
have been known to brag about murdering someone even though they were not
involved. "The discussions alone may not be enough to prove drug use, or any
crime for that matter, without verification,"
- Earlier order of Special Judge VV Patil of NDPS Court while granting
bail to Aachit Kumar:
Aachit Kumar was granted bail by the Special NDPS Court on October 30, 2021.
While granting bail to Aachit Kumar last week in the drugs-on-cruise case,
Special Judge V.V. Patil, designated to hear cases related to the Narcotics
Drugs and Psychotropic Substances (NDPS) Act, said that based solely on WhatsApp
chats, it cannot be concluded that he supplied drugs to co-accused Aryan Khan,
the son of Bollywood superstar Shah Rukh Khan, and Arbaaz Merchant, as
pronounced by Special Judge V.V Patil
- To conclude, the Arguments by Learned Senior. Advocate Mukul Rohatgi
during the course of the hearing pertaining to Whatsapp Chats was key to note:
The discussions between Aryan and Arbaaz where there is any reference of ganja
took place in 2018, not in conjunction with the texts about having a blast, as
senior lawyer Mukul Rohatgi pointed out during arguments for Aryan Khan in the
Bombay High Court. Random phone searches and chat history searches can't provide
context for personal discussions, and utilizing them to investigate criminal
offenses is a massive infringement of privacy.
The Karnataka High Court's
verdict in Virender Khanna versus State of Karnataka on March 12, 2021, provided
some recognition for this. The court stated that smartphones have grown in
importance in recent years and that a person's phone is now "the essential
device for handling the person's affairs." The court, therefore, decided that
the provisions of the Code of Criminal Procedure (CrPC) governing searches of a
person's property would have to apply to searches of their smartphone. The
police can ask someone to open their phone or give them access to their email
account, even though a formal notice under Section 91 of the Criminal Procedure
Code, but they do not have the right to compel them to do so if they refuse.