Aryan Khan bail hearing in cruise ship drug case [LIVE UPDATES from Mumbai Sessions Court]

A Mumbai Sessions Court will hear the bail plea by Aryan Khan, son of Bollywood actor Shahrukh Khan, in the cruise ship drug case, in which he is the prime accused.

The matter will be heard by special judge under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), VV Patil.

The plea was mentioned before him on Monday, and it was posted for hearing today after Narcotics Control Bureau (NCB) sought time to file its response.

Read details of the previous hearing here.

Live updates from hearing below.

Senior Advocate Amit Desai and Satish Maneshinde are waiting in court. None from NCB yet in court.

Satish Maneshinde: SPP AM Chimalker had mentioned in the morning that reply will be filed today. We are waiting for that.

Court: Where is SPP?

NCB officer: Yes, we are filing.

The Court will be hearing bail applications of Aryan Khan, Nupur Satija, Aachit Kumar, Arbaaz Merchant, Mohak Jaswal, Munmun Dhamecha, Shreyas Nair and Avin Sahu which are all listed on board for hearing.

Special Public Prosecutors AM Chimalker and Advait Sethna are appearing for NCB.

Sethna's junior mentions: Additional Solicitor General is caught up in High Court. He is on his way.

Desai: We are waiting here, when is he expected?

Junior: In 15 mins.

Court: Okay let us see.

NCB reply states the role of one of the accused cannot be dissected from another.

Even if there is no recovery of small substances, the accused are involved in conspiracy, states NCB reply.

Khan was accused of being used to procure contraband and the contraband was found in the custody of Merchant. The investigations pertaining to transactions abroad need to be investigated and are being investigated, NCB.

Mandshinde: We have received the reply. But there is no one here from NCB.

Desai: If someone comes we can start.

Court: We will start at 2.45 then.

Adv Lakshmi Raman: We have served them on Sunday, and they said they will file reply.

Adv Ashwin Thool: They are anyways copy pasting the replies. They have taken time and undertaken to file reply.

Sethna’s junior: We will file.

Matter to be taken up for hearing at 2.45PM.

While NCB reply is ready and served on defence, it has not been filed yet as it is yet to be signed by SPP.

The NCB in its reply has stated that the material collected during investigation has primarily revealed that Khan has played a role in so far as illicit procurement and distribution of contraband is concerned.

There is material on record to show that Khan was in touch with some persons abroad who appear to be a part of an international drug network for illicit procurement of drugs. The investigation is still in progress: NCB to Mumbai court

NCB: Khan and Merchant have been associated in close collaboration with each other which is sufficient to attract offences under Section 29 NDPS act. It is so far apparent that Aachit and Harijan supplied charas to Khan and Merchant.

NCB: The investigation reveals that all persons form part of larger chain and their involvement in conspiracy and commit illegal acts cannot be ruled out.

In the same CR, there have been several seizures in intermediary quantity from co-accused; there has also been seizure of commercial quantity of mephedrone from one accused. Thus, one of these applicants cannot be considered in isolation.

NCB: All these persons are an integral part of a common thread which cannot be separated or dissected from each other. In such a situation, the quantum of recovery from an individual becomes inconsequential.

NCB: All ingredients of crime that is preparation, intention, attempt and commission are present for this applicant. The allegation of false implication is untrue and misleading as there is sufficient material in the form of WhatsApp chats, pictures, etc.

NCB: A bare perusal of the panchnama clearly reveals that Khan and Merchant were apprehended at the international cruise green gate Mumbai. So the investigation becomes imperative as to how the accused were to enter the cruise without a Classic MV Empress Card.

NCB: Mere speculation that maximum punishment against this applicant is one year is purely based on surmises and conjectures when NCB has sufficient material to show ingredients of conspiracy.

Relevance of CCTV footage will be decided at the time of trial and not at this primary juncture when the investigation is at the initial stage and is ongoing and form a part of investigative material. Such demand would cause great prejudice to ongoing investigation.

NCB to Mumbai court: Considering the influence that Aryan Khan holds in the society, it is very much possible that he may tamper with evidence and influence other witnesses whom he personally knows.

Also the possibility of the applicant fleeing justice cannot be ruled out. Section 37 rigours (against grant of bail) applicable as sections 28 and 29 are invoked.

Adv Ashwin Thool for accused Aachit Kumar: I do not see why they are taking so long to file reply. The replies are identical.

Sethna: The request was made for senior to reply and as per the Court’s directions, we filed reply for 3 persons.

Sethna: Let us exercise some discretion, whether it is same or different. You said file in first three matters, and then milords and Mr. Desai said that let the matters proceed, so then let it proceed.

Thool: Long and short, where is my reply?

Adv Lakshmi Raman: There is a court direction, my application was filed on Monday.

Thool: These are delay tactics because there is a 5 day holiday in between. This is a question of personal liberty.

Sethna: They are alleging different treatment...I don’t want to say anything because this is embarrassing for the court.

Adv Ayaz Khan for Nupur says a statement was made that replies will be filed.

Sethna: We need some time.

Thool: The case punishable with one year and they are keeping him in jail... A 22 year old boy...

Sethna: Your Lordships should not be dictated by anyone. I am requesting for Oct 22. We have faith in justice, and we bow down to orders by Court.

Court: Okay we will see.

Aryan Khan bail hearing begins.

Court: Who is going to argue?

Advocate Satish Maneshinde: Desai will argue from our side and if there is anything to be added, then I will add.

ASG Anil Singh: Let the arguments be argued by all three bail applicants. And then I will respond because the arguments are going to be same.

Desai: There is going to be some difference. So let us see..

Senior Advocate Amit Desai: We are only concerned with the bail at this point.

Desai: So this whole incident begins in the afternoon of October 2, when he (Aryan) was invited on the party on cruise ship. He was invited by a person who may not be an organizer - Prateek Gabba... But he is not arrested.

Desai: I went to the cruise with another friend, Merchant. While we were checking in, we were intercepted by NCB. What happened according to NCB is in the panchnama. Let us go through that.

Desai: One Shivprasad called himself as the IO... I am going to keep it short because I have been told My Lords have read the record.

Desai: Information was that a group in Cordelia cruise was carrying out a party with substances for use, sale and consumption. Thereafter, they revealed few names of passengers who they suspected to be in possession.

Desai: After that, NCB team began questioning on the terminal, and during this time, they came across two persons who looked like the persons they were looking for. They questioned Vikrant and Ishmeet.

Desai: They found some substance with them. Just for the record, this item was MD, and that is 5 gms.

Desai: Thereafter another ziplock was found on Vikrant Choker, with cocaine. Then another substance claimed to be charas was recovered from Choker.

Desai: On Ishmeet Singh, they found 15 pink coloured tablets - Ecstasy. Then they conducted another raid and there was money allegedly for sale and purchase.

Desai: Two more persons whose description matched their suspects, were intercepted at terminal. Those were Aryan Khan and Arbaaz Merchant.

Desai: As per panchnama, IO asked if they have drugs with them. They accepted that there is charas. Now they are attributing to both.

Desai reading from panchnama: Merchant admitted that they are consuming charas with Khan. On asking Khan, he also said he consumes charas. The substance was sealed.

Desai: Then, combined search was carried out. They found 6 gms of charas from Merchant. The first fact which is relevant is on their own panchnama, there is no recovery of possession. There is no debate on this, it is admitted and undisputed.

Desai: From Merchant, it is a small quantity... The starting point of information is use, sale and consumption, but there is recovery from three persons so far but no recovery from me (Aryan).

Desai: When it came to secret information, to establish the purpose of use, sale and consumption, there has to be possession, but there is no possession. The information was wrong.

Desai: Someone may have told you that Khan has drugs, he will consume, but that is incorrect. They identified persons as if they had photos, but then that is intelligence of agencies, they do a lot of good work also!

Desai: They must have known it all and they wanted to catch them, but Khan had zero, so any information they had was false.

Desai: As per the panchnama and everything else, Khan admits that Merchant was carrying charas for consumption.

How admissions are recorded in panchnamas? That is a separate issue for consideration.

Desai: The maximum case they have against Khan is this: Khan, Merchant and Dhamecha were produced before Magistrate at 7 PM. Khan was shown arrested at 1400 hours on October 3.

Desai: In the panchnama, there is a connect between Khan and Merchant, but there is no connect with Dhamecha. I do not know her facts, where she was, what happened with her, what were the circumstances.

Desai: The remand order states what quantity was recovered. When it came to Khan, none was recovered from him. From Merchant, only 6 gms of charas was recovered. From Dhamecha, I don't know.

Desai: The 13 gms of cocaine are not from Khan and neither are the ecstasy pills, mephedrone. Nothing is from him. He did not have cash. He did not have plans to consume or sell drugs.

Desai: On that Sunday, only these people were arrested, whereas the panchnama has more people also. They were arrested for involvement in consumption, sale and purchase.

Desai: The first question of consideration (of bail of course, because this is 1 year punishment): the involvement in consumption, no substance for sale, and there is no money, so no purchase.

Desai: In connection with seizure, there was no connect between Khan, that is explicit from the panchnama. But there is a phrase, "in connection with."

Desai: When they take legal action for parties, the Court has to bear in mind the facts and not the larger picture, because they are catching hold of many people.. which is a good job considering there are many offences in Mumbai, but they cannot be bring in unconnected persons and call it conspiracy.

There are WhatsApp chats, pictures. They said they are apprehending more persons. After all this, Khan was remanded till Monday: Desai

Desai: The next date, 5 more were arrested and apart from those stated above, because of all the ramifications and international links, they sought for custody.

Desai: Then they were remanded till October 7, when there was only one other person whose name was given in the remand - Aachit - who was consequential. There is NCB’s copy paste here of remand also.

Desai: But the arrests are beyond the cruise now. And 17 is a name through our statement, and based on that, he was arrested. But the arrest was for FIR on the cruise.

Desai: Choker, Ishmeet, Sateja, Jaswal were clubbed with Khan. For further confrontation with Kumar, they sought for Khan’s remand.

Desai: On October 5 and 6, persons were arrested. But the Magistrate in his order rejecting PC said that after the original statement of Khan, there was no further interrogation. Extension of remand was not given and hence judicial custody was given.

Desai: This is important for bail. Hence the magistrate put him to judicial custody. Persons summoned and investigated and hence police custody not required, magistrate said.

Desai now reading the reply of NCB.

Their allegation of international trafficking was mentioned in October 4 remand, and now we are on October 13: Desai continues reading.

Desai: They are putting these facts in connection with all those persons... There are 20 persons so far... But they are putting allegations of international drug trafficking and they even have foreign nationals. But this they use for conspiracy section.

Desai: They have mentioned many accused in the reply, but there are so many accused. Whom are they referring to? This is an extremely well drafted reply!

Desai: They are saying they have connection and close nexus... But they is who? Khan and Merchant.

There is no denial of friendship between Khan and Merchant. We also grew up together.

Desai: The contents are denied, there is prima facie material and there is an active drug chain, they say.

We see illicit trafficking in this reply throughout. They dump it all on Khan. And I am sure they know that it is a serious offence. In the NDPS Act, what is illicit trafficking is a term of law.. It is not a casual term.

Desai: NCB, which knows the NDPS Act inside out, should know what is illicit trafficking. This boy has been charged with illicit trafficking. In SC terms, it is “inherently absurd”.

Desai: There is no recovery against him, and they are saying there is recovery from Dhamecha and Gomit etc. Nothing from this boy, he was not even on the cruise and they say illicit trafficking!

Desai: They are talking about cultivation, sale, purchase, there is nothing against him! And this is a responsible agency... They are saying illicit trafficking and the only provision which deals with that is Section 27A.

Desai: Between 16:50 on Oct 2 and 14:00 of Oct 3, he was being searched? They took his mobile phone, but what is the section they invoked? Not 27A. Because they are aware that Khan is not involved in illicit trafficking.

Desai: Others who were arrested, only two were booked under 27A (Choker and Jaswal). Wherever they said 27A can be invoked, they have, but not with Khan, because there is no recovery.

Desai: They did not interrogate him again... The only thing they found in the interrogation was with Aachit, who had 2.6 gms charas, which is not illicit.

Whatever milords will read for illicit in the reply please bear in mind that Khan has not been arrested for 27A.

Desai reads the bail application. The Sections were mentioned in the arrest memo when I was placed under arrest. I was only arrested for Sections 27, 20(b), 28, 29, 8(c) of NDPS Act.

Desai reads Section 20(b). The possession, purchase, sale, cultivation, nothing applies. I don’t know how this applies.

Desai: The only other thing are statements, which are not admissible. We are at bail. 20(b), panchnama shows might apply. 27A is not applied even though WhatsApp chats are there. 28 is attempt, even though Merchant was purportedly found with charas.

Section 29 is conspiracy, which is their big case. He has not been arrested for 29, for conspiracy: Desai.

Desai: The other persons are under separate panchnama. So how are they linked? The entire reply today is on Section 29.

Desai: The panchnama was given only after it was asked for...there is no conspiracy. Merchant had substance for his consumption but that is no conspiracy. He was arrested for 8(c), 20(b) and 27.

Desai submits a chart which shows how Aryan Khan was arrested. The NCB should have kept the offences separate, even though it is their discretion. It will be a chaotic task to frame charges in the trial in this case with these charges.

Desai moves on to judgments. Refers to Court's judgment in D'Silva case of August.

Desai is reading judgments pertaining to use of Section 29 NDPS Act (conspiracy) and bail being granted.

With no recovery, and maximum punishment for a year, there is no need for custody anymore.

Desai: Punishment under Section 27 was originally for 5 years, in 2001 it was brought down to 1 year. This is one of those rare legislations were this has been done as a reformative measure. Even cannabis was removed from dangerous drug schedule.

Desai: Something has to be done, but this is not the way to do it. Yes they are young and they are doing this. But in many countries, this substance is legal... They have been in custody and have learnt their lesson... They are not peddlers. They have suffered enough.

Advocate Taraq Sayed for Merchant: The entire case is based on mobile phone and the panchnama. That recovery will attract Section 27z, nothing more than that.

Sayed: Prosecution was using WhatsApp chats, but now this panchnama is before you. There is no phone seized as per panchnama. There is no separate panchnama for phones... Hence the entire WhatsApp chats will become inadmissible.

Sayed: We were both searched and if we were both searched and no phones were found, then from where did they get the chats?

Sayed: The only evidence they can rely upon is the panchnama. And the panchnama only mentions consumption. So I have immunity under 64A of NDPS Act.

Sayed: For that, a particular trial also need not be carried out. They recovered from me, and it could either be sale, purchase or use. I was to consume it. I recovered from Aachit, that I told. That part of investigation is also over.

And unless there is some connection, how are they to conduct a joint trial? They have been done in follow up actions, 6 gms for consumption and nothing more. The time they have spent in jail is enough, let them be released.

Adv Ali Kaashif Khan Deshmukh for Munmun Dhamecha: I am a model by profession. I keep doing ramp walks and I was invited by Baldev, and he has not been arrested.

Deshmukh: When I came in alone, there was a Soumya and Baldev present, and they are not accused. Within 2-3 mins of my entering, the raid occurred and they found a packet in the room.

Deshmukh: The panchnama says that there were two friends in the room. They (drugs) were kept in the small desk corner. The weight was found to be 0.5 gms. In their panchnama, they say that nothing was recovered from me, but there was items recovered from Soumya Singh.

Deshmukh: She is not even arrested and I am behind bars.

Magistrate: Is she your friend?

Deshmukh: No, I don’t even know her. I was called because they wanted glamour on the cruise. I am a fashion model. I have never met him (Khan), I only know he is famous.

Deshmukh: The entire case is against Khan and Merchant, but since the inception, they have not found anything from my statement. I am not friends with anyone else. Soumya and Baldev are not even in the CR. I am suffering behind bars, I do not know any of the two.

Deshmukh: They found substances from a corner of the room. How is this conscious possession which is found from corner of the room?

Deshmukh: They are trying to show that there is conspiracy but they have failed to show that... Why are they not arresting the others and only targeting me? There is a bogus case against me.

Deshmukh: What they are trying to show is that the smaller quantities found are equal to commercial quantities being found, that is the new trend.

ASG Anil Singh: I will continue tomorrow.

Court: No continue.

Maneshinde: We have sat in trial court till 8 pm.

ASG: I will need an hour, so I can continue.

Desai: If he needs a 5 mins break, we will get him tea.

ASG: I am saying I will start today but if anything needs to be submitted, then I will continue tomorrow. It is for the Court to decide.

ASG: Bail matters are heard day in and out, but it is not like they have to be decided on the same day. This is an agency, and the entire nation is concerned with the drug trafficking and consumption which is a serious offence in the society.

Day in and out, parties are organized, drugs are consumed and that involves college students also. It is not just affecting the economic matters but otherwise too... We are concerned with the gang involved in the drug trafficking.

ASG: It is difficult to believe that who invited (Khan), when invited, nothing is shown. And their contention in short is someone with me was carrying contraband.

ASG: I will also read the panchnama and the WhatsApp chats to show that this is not a case where somebody says "I am only an invitee and at the most I could have only consumed (drugs)"

ASG: In a case of conspiracy, it is not like the day he was arrested we knew it was conspiracy. We added that in the third remand. There are 20 accused and out of them there are peddlers and there is evidence of Khan and Merchant talking to them.

ASG: There are chats which mention about commercial or bulk quantities, then there are talks with a foreign national with reference to hard drugs.

ASG: Even as per panchnama, the contraband was not found with Khan’s possession. It was found with Arbaaz, that is his case...

Desai: That is your case, it is your panchnama...

ASG: I did not interrupt him, he mustn’t now. If there is any factual error, he can point later.

Our contention is that contraband was found is possession of Merchant, who met Khan at his residence..In his voluntary statement he has admitted relationship with Khan.

ASG: If I had knowledge, that is conscious possession...The others were found in possession and I was not found in possession may not be a proper submission.

ASG Singh now going through gist of WhatsApp chats: The chats are relevant for the purpose of this case. It shows procuring of drugs in bulk quantity. There is mention of foreign national talking of drugs which is also in bulk quantities.

ASG: I don’t know these drugs but my officers mentioned these are hard drugs.

ASG: My contention is so far we have arrested 20 persons, and out of them, 4 are drug peddlers. Commercial quantity was found with them one of them. Aachit and Shivraj were drug peddlers.

ASG: The reason I am pointing this out is because in a case of conspiracy, it is not necessary that with all the accused, commercial quantity is found or intermediary quantity is found.

ASG: Small, commercial, or no quantity, if Section 29 NDPS Act applies, then there is conspiracy.

When Section 29 is applied, the person who is charged with the offence will be punished with the same offence as the conspirator.

ASG shows the chats: Conversations of bulk quantity cannot be for the purpose of personal consumption. There is something more. We have spoken to the external ministry to try and locate the foreign national.

Court: Your reply is same for all?

ASG: It is mostly same, but some facts are different. ASG shows the voluntary statements of the accused.

ASG: During the hearing of bail application, applicant also retracted his statement made by the respondent.

ASG: It was argued today and earlier that my statements were retracted on October 3, then the second statement was on October 4, but that was not retracted.

ASG: You are always entitled to retract, not saying otherwise. But when you are saying that you have retracted (2nd statement of October 4) when you have not... Especially a statement which says that substance was to be consumed by both.

Court says matter to continue tomorrow.

ASG: May I request for 12 PM tomorrow?

Desai: Keep it 11.

Adv Raman for Jaswal: I was arrested 2 hours after Khan, my reply is not yet received. It is on board today.

Sethna: It is not only these two. There are others also. I am saying with some responsibility, it will become impossible.

Thool: I am only saying that he sought for my judicial custody. He should have filed the reply overnight. They arrested me overnight.

Sethna: This person is a peddler, milords may direct!

Sethna: Now Milords will get 10 applications.

Thool: Why did you arrest them then?