This judgment will have wide reach and repercussions: Bombay HC reserves verdict in bail applications by Rhea Chakraborty, others

Justice SV Kotwal of the Bombay High Court on Tuesday reserved judgment in the bail applications filed by Rhea Chakraborty, Showik Chakraborty, Abdel Basit Parihar, Samuel Miranda and Dipesh Sawant in relation to their alleged involvement in cases under the Narcotics Drugs and Psychotropic Substances (NDPS) Act.

The cases and arrests came in the wake of the death of actor Sushant Singh Rajput in June this year. The Narcotics Control Bureau (NCB) has alleged that the drugs were procured for consumption by Rajput as well.

Rhea and the others had filed the bail applications before the Bombay High Court after the rejection of bail by the Special NDPS Court, Mumbai.

After a marathon hearing that lasted well beyond the Court's usual working hours, Justice Kotwal thanked the counsel for their able assistance and informed that he is reserving orders. The Judge added,

Advocate Satish Maneshinde appeared for Rhea and her brother, Showik Chakraborty. Advocates Tariq Sayyed, Subodh Desai and Rajendra Rathod appeared for the other 3 accused. Additional Solicitor General Anil Singh appeared for the Narcotics Control Bureau.

During the hearing on Tuesday, Justice Kotwal noted that the 1999 judgment of the Supreme Court in the State Of Punjab v. Baldev Singh may be important in deciding the matter.

In the Baldev Singh case, the Supreme Court had observed that Section 37 of the NDPS Act make offences under the Act cognizable and non-bailable.

Justice Kotwal asked the counsel to examine this case and address the Court on whether the offences the bail applicants have been charged with would be bailable. Given that it is a Constitution Bench ruling of the Supreme Court, the Judge also mused that it may be binding on him.

The Advocates for the accused argued to distinguish the case from the instant matter. They also placed reliance on more recent judgments in which the Courts had granted bail.

Highlights of the submissions made before the Court include the following.

1. That NCB had no jurisdiction to carry out this investigation.

• The Supreme Court's order in plea challenging the Bihar Police FIR in the Sushant Singh Rajput murder case was highlighted.

• In that order, the Supreme Court directed the CBI to investigate cases pertaining to the death of actor Sushant Singh Rajput.

• The accused in the case before the High Court were arrested subsequent to the death of Sushant to investigate the drugs allegedly supplied to him. Therefore, it was argued that this matter should also be investigated by the CBI and not the NCB.

2. That no case was made out under Section 27A of the NDPS Act.

• The Advocates argued that ingredients for punishment under Section 27A is the financing illicit trafficking of drugs and harbouring offenders.

• It was submitted that the NCB does not have enough evidence to prove these ingredients.

• The counsel for the bail applicants argued that the NCB had no evidence to show whether the accused were in possession of contraband or that any drugs were recovered from them.

3. That the alleged offences are bailable in nature, given the small quantity of contraband involved.

• The Advocates argued that the alleged financing and trafficking of substances happened for a very small quantity of substances.

• They pressed on the issue that to determine the severity of the punishment under the NDPS Act, the quantity of the substances matter.

• The statement and objects underlying the definition of grave offences such as those under Section 27A, NDPS Act was to curb illicit trafficking.

• The Advocates submitted that the quantities involved in these 5 cases were far from a commercial quantity.

4. It was also argued that the statements recorded under Section 67, NDPS Act became corroborative the moment Sushant Singh Rajput (for whose consumption, the drugs were allegedly procured) died.

In the course of the hearing, it was also argued,

"The dilemma of the department is this - they do not know how to investigate this case. They (NCB) started on the premise that we have to unearth the death of Sushant Singh. We are maligning a man who is no more, who cannot defend himself."

Advocate Sayyed further argued,

"Where does the buck end? How do you corroborate? A statement does not mean it is the gospel value. It is only of corroborative value."

Later in the day, Advocate Maneshinde also added,

"The entire case of the prosecution is that the only person consuming drugs is Sushant Singh Rajput, no one else… there is nothing to show that Rhea had purchased or sold drugs. There was nothing to show that she was an active member. There is no evidence."

5. Advocates Desai and Rathod appeared for accused who were not charged under Section 27A, NDPS Act.

It was submitted that these bail applicants were house servants employed by Rajput, and that they only shared a master-servant relation. It was added that the NCB had no evidence of sale, purchase, finance, possession or recovery of substances from these accused.

6. Answering "moralistic arguments" made over the use of drugs in this case, it was also observed during the hearing,

He also proceeded to remark,

"We have arrested 19 college students and we are trying to project that we have busted a cartel… Prima facie they have made out a consumption. But by which stretch imagination can the NCB argue before the court that this is a cartel?"

1. Drug abuse has larger ramifications on the Society. That offences are considered grave because drug abuse is above murder. It affects the society as a whole, unlike in a murder, when only the victim and the family may be affected.

2. There was harbouring and financing of illicit drugs, which points to encouraging the drug facilitation. That should be deterred.

3. That NCB had evidence to believe that the accused were all connected and were running a drug syndicate. All persons arrested till now, are connected with each other. There was regular link and purchasing. The case has to be considered as a whole.

4. That the drug supply did not include only Rajput, but it was a larger cartel. Considering the overall case and circumstances, it was submitted that this drug abuse has to be controlled in the country, in all sectors (college, schools, Bollywood).

5. That NCB has jurisdiction to investigate this matter. The investigation is not related to the death or unnatural death of Sushant Singh Rajput. It is nobody's case that this case is related to the death of Sushant Singh Rajput. It may be related 5-10% to Sushant Singh Rajput because he was consuming. Further, the CBI has not come forward saying that the NCB should not investigate.

6. That the punishments under NDPS Act are not based on quantity in each and every case. That is the intention behind framing of the Act.

As the day-long arguments in the matter came to a close, Justice Kotwal congratulated all Advocates for conducting a thorough research. The Court added that the judgment may take some time, given the voluminous nature of the proceedings.