Shah Rukh Khan son Aryan Khan bail hearing in NDPS case [LIVE UPDATES from Mumbai court]

A Mumbai court is hearing the bail plea filed by Bollywood actor Shahrukh Khan’s son Aryan Khan in a case concernng his alleged involvement in the cruise ship drug case.

Yesterday, a Mumbai court had rejected plea by the Narcotics Control Bureau (NCB) seeking further custody of Aryan Khan, and seven other accused.

Chief Metropolitan Magistrate RM Nerlikar passed the order stating that NCB had adequate opportunity to interrogate Khan and others and no further custodial interrogation is required. He was therefore remanded to judicial custody.

Khan had been in NCB custody since October 4.

Read live updates from yesterday's proceedings here.

Read live updates from today's hearing below.

Magistrate has presided and is waiting.

The Magistrate will be hearing three bail applications today of Aryan Khan, Arbaaz Merchant and Munmun Dhamecha.

Satish Maneshinde has arrived.

Court asks if the hearing can begin.

Taraq Sayed for Merchant mentions that ASG and Sethna both have not arrived yet.

Maneshinde: Normally I am on time! (Laughs)

Sethna’s junior: We are preparing the replies. We should be done in a few minutes.

Court: How much time?

Sethna’s junior: 10-15 minutes

Sethna’s junior: The ASG Anil Singh is also on his way for this matter.

ASG Anil Singh and Advait Sethna arrive.

Hearing Begins

Satish Maneshinde: Let us start, we already lost 15 mins. We will take the say as and when it comes

Maneshinde: Kindly see CrPC..

ASG: We are raising issue on maintainability. So answer that first.

Maneshinde: All arguments will be argued at one stage..

ASG: No that cannot be..

Maneshinde: You cannot dictate to the court.

ASG: Once maintainability is raised, then that has to be heard first..

Maneshinde: We argued remand full, not on maintainability and all

Court: You file your say, on merits and maintainability. I will decide it. Whatever you want to say, first file

Maneshinde: Please don’t dictate to the court

ASG: Please don’t keep saying that. Normally who raises maintainability issue argues first, then the other side replies, the Court can decide and if it is maintainable, then hears further..

Court: Accused have filed plea with all details including law and jurisdiction..

ASG: But that is not the procedure. May I not point out the correct procedure?

Court: Okay I understood, you file your application then

Maneshinde: In all these years, such things were not seen.. I am extremely surprised, that in a case where I have not been found with anything and the court has rejected their application for further remand and sent them to judicial custody, They are raising these points.

Maneshinde: It is for the court to decide the procedure.

ASG: Let me begin my arguments on maintainability..

Court: okay you file whatever..

ASG: My reply is coming..

Court: File that, then we will hear..

Maneshinde: Everyone should get a fair chance.. We should be give a fair chance to argue on bail.. First time someone from the prosecution is telling the court the procedure..

ASG: It is not new.. as lawyers we have to show the procedure..

Court: As you are both arguing before me, I cannot comment.. but if I get an application, then I will decide..

Court: In your reply you can raise the issue of maintainability.. no need of separate application

ASG: There is a judgment I am relying upon..

Maneshinde: Let me see the reply first

NCB has filed separate reply raising issue of maintainability. Court is perusing the same.

The reply raises jurisdictional objection replying on Section 36A of NDPS act and judgment of Rhea Chakraborty.

ASG: Let me just show a Supreme Court judgment. And then the Court can decide..I am showing two paragraphs, and then I am done. 1999 judgement this is.. ASG is reading out para 9 of the judgment

ASG is reading TK Latika judgement.

ASG: if the application is not maintainable and if that is the court’s conclusion then there is no point going to merits.

ASG: Any application on merits if not maintainable, will be waste of time. And it is for the court to decide, whether maintainable or not.

Sayed: I am surprised the ASG is showing a rent act judgment in Criminal case. Is it his submission that the bail application is not maintainable when a person is in custody?

ASG: Let me read out my reply. The offences are triable under sessions court. These offences are non-bailable as per High Court judgment. In a similar CR of conspiracy the Court held the offences were non-bailable.

Maneshinde: Why is the Union of India so agitated in this case where no possession is there..

ASG: No this you cannot say..

ASG is reading out Rhea Chakraborty’s judgment para 9.

ASG: The accused were all arrested in a single crime and there cannot be bifurcation. I am saying in the present case..

Court: by hearing this application, I am not restricting the parties to submit only on maintainability

ASG: If there are 10 accused in one offence, same FiR, even if one accused is found with small quantity, and others not, then there cannot be segregation, and the sessions court is supposed to hear

ASG: This court had held in a case before that the bail application was not maintainable..

Court: So you want me to hold without hearing..

ASG: No I never said. Please don’t put words in my mouth like that.. I cannot stop anyone..

Maneshinde is reading section 37 of the NDPS act. And then 36A which talks of trials by special NCB courts

Maneshinde: Kindly see subsection 5 of 36, offences punishable for more than 3 years.. will be tried summarily.

Who will try? Magistrate court.

S. 437 of CrPC. The powers to grant bail is inherently given in CRPC.

The bail-ability and non bail-ability of the offence is given

Maneshinde: Embargo in 437 is for death or life imprisonment or previous offences.

That is not applicable to me.

Maneshinde: Kindly see Bombay HC judgement in Sanjay Malshe case.

Satish Maneshinde is reading the judgement in Sanjay Malshe vs State of Maharashtra.

Satish Maneshinde: There is no prohibition on the Magistrate because this court is covered by CRPC and the magistrate has jurisdiction to try several offences.

Maneshinde: Now after this, there is a judgment of Justice Dangre as to how learned judge is dealing with offences under NDPS where people who are caught with small quantity or intermediate quantity particularly for first time Offenders are dealt with

Maneshinde: This is after Rhea Chakraborty judgment. Everyday the law is evolving. So that needs to be seen

Maneshinde: After Sethna has started appearing, every point is being fought for.. I appreciate..

Sethna: Thank you!

Maneshinde: Now this is Gaurav Dixit order. From sessions court. You are quoting Magistrate, I am quoting Sessions.

There also Sethna vehemently fought..

Maneshinde asks Sethna: have you filed appeal in Gaurav Dixit?

Sethna: we don’t know..

Maneshinde makes more Legal submissions.

Section 8(c) of NdPS not applicable to me because it is about sale, purchase, manufacture..

Maneshinde: Section 20(b) is similar.. In this case, nothing of this applies..

They have my WhatsApp messages which your honour has disregarded for judicial custody

If there is offence for life or death penalty, then it is an issue.. but otherwise..

Maneshinde: I am an accused for consumption (of drugs)..

I respect that they made statement that they found nothing with me.

Your honour did not find reasons for NCB custody hence judicial custody was given..

Now section 28 is for punishments..

Section 29 for abetment and criminal conspiracy, there is nothing to disclose conspiracy but be that as it may, whoever is a party.. kindly see Section 29

Maneshinde: There is no embargo as far as I am concerned. There may be others with different charges. Those charges cannot be foisted on me. Coming back to my own.. Stephen Muller’s case which has been considered in detail by Single judge (in Rhea)

Maneshinde: If there is conflict, then it is appropriate for the judge to refer to larger bench.

Unfortunately that has not been done..

Maneshinde: So he will cite Rhea and I will cite Stephen. I did not ask for bail as a matter of right. I let go off that on the first day.

I did not ask for bail on first day. I thought they will take a linear view considering that there is no material against me.

Maneshinde: But if they are prosecuting me under NDPS, your honour would ask where is the material. I understand they have connected material based on chats and all..

But it is well settled that offence is bailable, and non-bailable according to my learned friend (ASG)

Maneshinde: There are no embargo on me under Sec 37 NDPS. Milord is free to grant bail once held maintainable.

Kindly see the 2006 judgment of High Court.

Satish Maneshinde: High Court has always been liberal in granting bail. Prosecution still keeps opposing..

Satish Maneshinde: I am giving judgements of single judges of High Court.

Maneshinde: The High Court has granted bail for small quantity, I have been found with nothing. Not even one gram, nothing.

Satish Maneshinde: Power of the High court to grant bail is there with this court also. I submitted a judgement for interim

Satish Maneshinde: This (judgement from SC) is a command from Supreme Court that don’t play along with fundamental rights of citizens.

Maneshinde: I am giving another judgement from 2021, Justice Pitale from the High Court Bench at Goa

Satish Maneshinde: There was no seizure (of drugs) from the applicant in this case.

Bail application was allowed.

Another judgement of 23 September of Justice Pitale. Para 9 may be seen.

Maneshinde: Let us not stand on technicalities when there is case on merits. Once there is case on merits, then technicalities will not stand (reading judgment of Justice Pitale)

Maneshinde: I am submitting a small chart on the judgments I cited and how they can be differentiated.

This is a nutshell on what I spoke for last one hour.

Now on facts, I am a 23 yr old with no prior antecedents.

I happen to be part of Bollywood so I reached International terminal.

When I reached, the NCB asked if I had drugs on me, I denied.

Despite that they searched me, my bag, my clothes. They perused my phone. They thought they will find something to interrogate me.

Apart from questioning on day 1 nothing else has happened after that.

In the last 5 days nothing has emerged.

Aachit was revealed on first day, they took their own time and Aachit was remanded yesterday

Satish Maneshinde: I will be required for confrontation interrogation, that has been rejected by Supreme court.

Justice Krishna Iyer said corroboration, confrontation, interrogation can take place in absence of custody of the accused.

Maneshinde: These judgments have been considered time and again that normal tendency of the court is to grant bail if no serious crime.

And nothing would emerge as there is nothing..

Maneshinde: I am from respectable family, my parents, Siblings are here. I hold Indian passport

Maneshide: I have roots in the society, cannot abscond.

There is no question of tampering of evidence or accused.

The electronic evidence is taken, the other accused are in custody.

Maneshinde: With these arguments I am concluding, if ASG raises a point of law, then I will respond.

Magistrate: I have an inspection meeting at 2 or so..

Maneshinde: Lives of people are involved.

Magistrate: Finish today only?

Sayed: Yes yes, We will finish today only.

Magistrate: Okay then 2.45 pm!

ASG: I will come at 3..

Maneshinde: Of course, unlike the Supreme Court we have only one ASG, he has to go to all courts.

The Nigerian National Chinedu Igwe will be produced today for remand. The 18th accused in the case.

Advocate Gorakh Liman is appearing for him. That remand will be taken post Aryan’s bail hearing.

He was found with 15 gms of ecstasy pills.

Court commences hearing

Sethna: There is a fresh remand..

Court: When is ASG coming?

Sethna: 15 mins.

Court: I will hear then..

Magistrate is hearing another remand by ATS, Mumbai.

Sethna begins remand submission for Igwe. This remand is in furtherance of the investigation in the case. The sections are 8(c), 22, 27, 27A..

There are 15 gms ecstasy pills recovered. The recovery has come from Investigation of Abdul Kadir who is accused 9

Sethna: On the basis of ongoing investigation, with each passing day, this name has come to the forefront. Hence 9 and 27A has been invoked.

There is prima facie element of conspiracy and the persons are cohort with each other.

Sethna: One Nigerian national was intercepted while he was going to deliver contraband to his custody.

From the disclosure of the accused, he says that he is part of the ecstasy trafficking network. This is part of the commercial quantity of Abdul Kadir.

Magistrate: What is his nexus with the present case?

Sethna: From one Mohak Jaswal, came the name of Abdul Kadir. And from him this Igwe’s (Nigerian) name comes, who is a peddler.

Sethna: This is the third person in the link. Further investigation is bringing this forth.

From the remand already granted, these names are found.

Court: From the persons already in custody who are denying conspiracy, then how are you linking future..

I am Asking are you limiting this investigation to the present cruise or going beyond.

Court: Based on info of accused, you may arrest other accused who are not involved in the present case.

Sethna: I am restricting to the facts and circumstances of this case but while investigating based on the statements, some arrests may be made on prima facie connections

Sethna: These sections have an element of conspiracy. This is part of the entire thread..

It is upto the Court to decide whether to keep same or bifurcate..

Adv Liman (appearing for Nigerian): I don’t have panchnama. There is nothing against me for sections under 27A.

I am foreign national person. They have invoked Section 35, culpable mental state, at this stage!

Adv Liman: Tomorrow my mother will be arrested because she paid for my weed!

For harbouring.. how to invoke these sections at such stage..

Liman: Conspiracy is shown.. give us a chance to prove our case.. but how do you prove this at this stage?

Court: Why don’t you settle this all once for all under Section 482 (approaching High Court)?

Sethna: I have only one year practice.. but he is saying bring the man and then I will show the law..

Liman: That is not what I am saying..

Court: Police custody till October 11 for Nigerian national Chinedu Igwe

Satish Maneshinde continues his submissions on Aryan Khan bail.

Reads judgment of Harsh Sawhney from Supreme Court.

The two grounds which will entitles me for bail are fulfilled. Maneshinde concludes.

Sayed for Merchant begins submissions.

In case of murder, charge is 302, there is something, some fetters for denying bail. But when there is insufficient evidence for punishment then magistrate is granting bail as normal course not as exception.

Sayed: There is nothing to connect me with any other co-accused persons. So conspiracy does not arise.

Why would they oppose my application for CCTV? T

hey have said it will prejudice their investigation, in their reply. How is that possible?

Sayed reads: Investigation is at nascent stage and the relevance of CCTV will be important at trial and not now.

Such demand would cause great prejudice. I am shooting myself in the foot if the contraband is shown in the CcTV.

Sayed: If it says that there will be prejudice it means that there is something not in tandem with what they have stated.

The best evidence is what is produced in court. CISF has no axe to grind against me or NCB

Sayed: This is new trend, they arrest 34-35 accused. One makes statement that there is evidence against another, he is arrested, then a third.

Court; Why are you not raising this in court?

Sayed: At this stage, i have to mention grounds, and I don't want them to know something at this stage they have not thought of.

Sayed: I have allegedly mentioned in the panchnama that I was going to consume and have a good time. They have mentioned that.

Assuming this is true, this is a case of consumption.

Sayed: What is the punishment for consumption?

6 months.. This is not even trial.. but I have only offence of consumption.

The moment it is less than 3 years.. then my learned friend has argued that offences is less than 3 years imprisonment can even be tried in this court.

Sayed: There is nothing that stops this court from releasing me. I am a local boy.

Ali Kaashif Khan Deshmukh for Munmun Dhamecha begins his submissions

Deshmukh: As per their own submission, there was one Soumya and Baldev with me who invited me.

They have not arrested them, then how they say it was found only with me.

Deshmukh: Coming to the citations, although my senior has already argued.. I just want to say that their reply only says this is cognizable and non-bailable offence.

The Act is clear on what is the purview of bailable or non-bailable acts

Deshmukh: 3 remand applications, and there is no nexus.. Why should I be in custody?

Deshmukh: High Court has already decided which court decides what.. Deshmukh tenders all judgments he will be citing.

Deshmukh: I have been found with a small quantity.. 5 gms.. this should be considered And this is for consumption.

Deshmukh: I have no nexus with anyone. I don’t even live in Mumbai. I was invited on the cruise, hence I came.

I am pressing for interim bail also.. which is part of my application..

ASG: We are not opposing their right to seek bail or application to seek bail.

What I am opposing is right to claim Bail in this court

ASG: I am not saying bail cannot be filed.

Everybody has a right to bail.

Without entering into the merits..

ASG: This supports what your honour has held in Armaan Kohli’s judgment

ASG: The advocate for petitioner also submits that wherever the legislature has deemed it fit for a bar, they have instituted special courts.

They have referred to S 36 of the NDPS act.

Maneshinde: Why are you reading in bits and pieces? And interpreting in your manner.

ASG: I will read what I want, I did not interrupt you. You were also reading like this..

My friends here have reported what all has happened…

ASG is reading the entire judgment of Sanjay Mahale.. This judgment is in my favour and this is what is held by milords in Arman Kohli.

The order which was passed by milords is on the same lines.. I read this in the morning too, I am re-reading..

ASG: What I am arguing today is exactly what is in this order.

I am just saying this application is not maintainable here because there is a Special NCB court where they can approach for bail.

Milords were shown a judgment of Justice Dangre. I will show from that..

ASG Anil Singh: The contention was that there was not commercial quantity or even intermediate quantity.

My response is that the High court was hearing an appeal from an order of the Sessions Court!

ASG: My learned friend cited a judgment of 2-3 paragraphs saying that I am entitled for interim bail.. even that judgment says, that you have to go to the concerned court..

If the court cannot grant regular bail then interim bail cannot be granted.

ASG: Whenever application is made for bail then even interim bail is sought for.. but then it should go before the regular court

ASG: You have to first cross the hurdle that this application is maintainable here, and then proceed for bail..

ASG: the Statement is recorded, the WhatsApp chats are there.. and though it is in the file.. the football message he referred to, he is talking of bulk quantity, this is chat between Aachit and Aryan

ASG: I wanted to avoid saying in court.. but how is that a football message How can there be separate case? Can there be two trials, two chargesheets.. can parallel trials go on here and in sessions?

This is one crime, one FIR, one group..

ASG: You have small quantity but you are part of the group..

My submission is that the court must first decide on the maintainability.. but if you want me to argue on merits..

Court: You argue on both because they have argued on both aspects..

Sayed: This is unheard of..

ASG: This is heard of.. you don’t know the law then..

Court: You argue on both because they have argued on both aspects..

Sayed: This is unheard of..

ASG: This is heard of.. you don’t know the law then..

ASG: On merits, Maneshinde relied upon Stephen Muller case, that is this offence comes under Stephen..but I will rely on Rhea..

Maneshinde and ASG have a minor tussle.

Maneshinde: By staring at me I am not going to get scared.. there is nothing personal here..

After a minute..

Court to officer: I will give you remand order soon, but you have carried accused to Arthur Road jail?

Officer says yes.

ASG: SC Baldev Singh judgement is not referred in Stephen Muller. But it is referred in Rhea Chakraborty. So that is binding on this court. And Rhea is more recent.

ASG: All offences are non-bailable has been held..

ASG: Your Honour held in remand order of October 4 shows that all NdPS offences are non-bailable..

ASG: It has been held by this court so now it is not open for my friends to say it is bailable.

ASG: Your honour has seen the entire case, the Whatsapp chats, the circumstances .. this cannot be co-incidence.

It cannot be that accused 1 and 2 met at the terminal. The two met and went to the terminal in the same car. So it cannot be that this is co-incidence

ASG: We have arrested suppliers, organizers, and even Aachit. It is not like they are new to contraband.

So it is not a matter of coincidence.

Court: What was the specific information you recovered? Your intelligence received?

Was it assembling.. what is it? That is important for attracting S 29?

ASG asks the Court to read the case diary. And then reads their reply again.

ASG is reading reply to bail application of Arbaaz Merchant.

ASG is reading out each reply to show how the replies differ in each application.

ASG is reading Rhea’s judgment again.

ASG: My submission is that most of the judgements of my friend is on facts where the order was heard by sessions court.

This is a case where there are 17 persons, you (Aryan) are an accused.

ASG: The connection, then involvement, everything is being investigated.

Suppose the persons are released, then it is a very likelihood of interference in witness and tampering of evidence.

This is all about connection, conspiracy and link.

ASG: All the reasons milord is aware. These are influential people. In this case tampering with witnesses and evidence is easy.

ASG:That there was no connection, they are not organiser & supplier or not even on the cruise that is not important Day 1, we had some accused, now we have organizer, supplier & now a nigerian.

This has all happened in course of investigation

ASG: Apart from maintainability, this application should otherwise also be rejected.

Maneshinde replies: I want to make it loud and clear. I am not here to ask for bail as a matter of right.

Maneshinde: I am not saying Offence is bailable. Bailable or not.. Assuming they are non-bailable, my submission has been based on all judgments.

The day milord grant judicial custody, the prosecution cannot say you are not regular court for bail or go to special court

Maneshinde: That Is why I took pains to read 437.

The moment a person is produced before, what is to be considered is whether 1)the person is punishable with life imprisonment or death, 2) antecedents

Then, Bail can be granted

Maneshinde: SC judgment of 2010 is there, which I will submit now.

Satish M: What Stephan Muller says is that if there is embargo only then bail can be rejected, but that is the law. Section 36A of the NDPS Act makes it obligatory for all trials before NCB court.

Court: It also says that within 3 yrs punishment is with Magistrate

Satish M: Yes

Satish Maneshinde: There are embargos under Section 37 if offences are 19, 27 and 27A, but just because 27 is applied in the case does not mean it should apply to me.

Maneshinde is reading Akhlak v. State. He will rely on one judgment and I will on another of the co-ordinate..

But I am not saying these offences are bailable.. whatever you charge against me, but if you have no material Against me, then you cannot hold me even for a minute.

Maneshinde: Kohli case, this judge rejected bail because it was not clear that stage whether 27A applies or not

Maneshinde: There is nothing against me.

Allegations are being made. Amongst all offences, punishment is max 3 years.

What tampering will I do? They have all electronic evidence.

Merely because a person belongs to influential family does not mean he will tamper

Maneshinde: There are people roaming around with more serious offences, I am not one of those.

I have never used my influence.

In many cases they give their no-objection.. there was no such serious offence..

Faizan Ahmed, he was produced with Rhea Chakraborty and he was granted bail,

Maneshinde: To sum up, Milords can grant bail even in non-bailable offence as well.

He is not going to tamper and there is no evidence against him.

Deshmukh: There is a judgment I have submitted that this court can hear bail..

Magistrate: can this court try this matter?

Deshmukh: That is precisely my submission..

ASG intervenes.

Maneshinde: ASG has stood up. Let him speak..

ASG: On the law of precedence, I want to submit that the Bombay High Court judgment in Rhea has considered the Supreme Court judgment.

Magistrate: The remand order has to be prepared at the earliest. I do not have that much time for dictating that order also. I know you are all anxious

Magistrate: I will need some time.. I will give operative order now, but I will give reasons later.

Maneshinde: The High Court has been doing this for long..

But I don’t think Union of India has a problem