Aryan Khan bail order: What are the factors the Sessions Court will consider?

Special Judge VV Patil is likely to pronounce his verdict tomorrow in the bail application filed by Aryan Khan, son of Bollywood actor Shahrukh Khan, in the drug case initiated by the Narcotics Control Bureau (NCB) after a raid was carried out on a cruise ship in Mumbai. .Khan has been booked for offences under Sections 8(c), 20(b), 27, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.Senior Advocate Amit Desai with Advocate Satish Maneshinde made submissions on behalf of Khan.Additional Solicitor General Anil Singh with Special Public Prosecutors Advait Sethna, AM Chimalker and Advocate Shreeram Shirsat represented the Narcotics Control Bureau..A day before the verdict is likely to be delivered, we look into the considerations which the judge has to weigh while deciding the bail plea..In criminal cases, factors which are normally taken into account for grant of bail are criminal antecedents and age of the accused, likelihood of tampering with evidence or commission of crimes in the future. However, additional factors come into the picture for grant of bail in NDPS cases..Judge Patil will consider the following submissions made by the counsel appearing for Khan and those appearing for NCB:.Submissions for KhanNo possession or recovery of any drug or narcotic substance from Khan, hence no sale; and no cash given, hence no purchase of drugs.From the persons arrested in the case, Khan only knew Arbaaz Merchant who is a childhood friend, but did not know anyone else on the cruise, as he was an invitee. Hence, there cannot be a case of conspiracy.The Metropolitan Magistrate’s order refusing NCB custody of Khan states that no more interrogation is required, which is an important factor for bail.While NCB has alleged that Khan is involved in international drug trafficking, he has not been booked under Section 27A of the NDPS Act (the only section that deals with illicit trafficking).When Khan was arrested, his arrest memo did not mention Section 29 which penalises conspiracy, even though NCB officers had investigated his phone. However, they later proceeded to place reliance on WhatsApp chats to claim he was involved in drug trafficking.Even Merchant, the only other person Khan knew, was not arrested for conspiracy under Section 29.Eve if the accusations are right, the only offence against him is of consumption, which is punishable with imprisonment of upto a year.Instead of trying to reform Khan, who is supposedly consumer of drugs, the system is trying to lock him up in prison till a conspiracy is unearthed, which is against the law and the precedents governing the grant of bail. Hence, bail ought to be granted..Submissions by NCBConspiracy cannot be unearthed on the day arrests are made, it will be unearthed over the course of investigation; so far, through interrogations, NCB managed to nab five drug suppliers who were known to one of the consumers in the list of accused.Quantity of drugs recovered is immaterial when it comes to the offence of conspiracy.WhatsApp chats of Khan with another accused Aachit Kumar mention "commercial or bulk quantity". Hence there is a possible international drug peddler involved, who is yet to be caught.The record and evidence point out that Khan was a regular consumer of contraband for the last few years.Panchnama points out that he was planning to consume drugs during the journey.'Use' in case of narcotic drugs is different from 'consumption'; 'use' is supposed to include everything but 'personal consumption'.The moment the accused was in possession of illicit articles, there is a presumption against him in law till he is able to disprove it during the trial.Possession can also be conscious and Khan allegedly knew about Merchant’s possession of Charas as they came to the ship together.Rigours of Section 37 (for not granting bail) will apply in a case in which Section 29 has been invoked.Concern of the agency is to nab the gang involved in the trafficking.Drug abuse affects youngsters and investigation is at preliminary stage; bail can be considered at a later stage.Khan is influential, may tamper with evidence, cause hindrance to the investigation or even flee justice..Judge Patil is bound by the following precedents which lay down how bail ought to be granted in NDPS cases..The Supreme Court observed in several judgments that stringent parameters have been prescribed for the grant of bail under the NDPS Act, given the seriousness of offences and in order to curb the menace of drug-trafficking in the country..In the case of Union of India v. Mohammed Nawaz Khan, the apex court observed that the "standard prescribed for the grant of bail is ‘reasonable ground to believe’ that the person is not guilty of the offence...and whether he is likely to commit any offence while on bail.”.In the judgment of Union of India v. Shiv Shankar Kesari, the apex court distinguished "reasonable grounds" from "prima facie" grounds. "It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged," the judgment said. .Broad parameters were laid down in Union of India v. Ram Samujh & Ors, in which the Court said: “It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.”.While Supreme Court laid out stringent conditions for compliance, the Bombay High Court in the case of Harsh Shailesh Shah v. Narcotics Control Bureau, while granting bail to two young boys, observed that it is pertinent to find out the root of the problem to try and eradicate the rising addiction among the youth.“The challenge of today mainly focuses on the issue of drug addiction in youth and how to tackle it. Experimentation with alcohol and drugs is common. Unfortunately, the youths do not foresee the link between their action today and its consequences tomorrow,” the order highlighted. The High Court noted that the applicants did not have any antecedents of being involved in consumption or use of drugs and psychotropic substance. Considering their young age, the Court concluded that the applicants deserve one more opportunity for reformation and granted them bail.