The stay in prison cell tonight would well be the last for star kid Aryan Khan. The Superstar's 23-yer old son has been languishing in jail for 26 days since his arrest in the NCB drug bust case on a cruise off Mumbai's coast.
Though the bail plea of all - Aryan Khan, Arbaaz Merchant and Munmun Dhamecha - have been accepted positively by the Bombay HC, the terms and conditions of bail will be read out in the open courtroom tomorrow evening.
While all eyes will be on the detailed order which will be read by Judge NW Sambre tomorrow, the bail to all the accused in the Mumbai Cruise drug bust case underlines one important law maxim - 'Bail is the Rule'.
Bail Is The Rule
With the former AG Mukul Rohtagi leading the defense team of Aryan Khan, the hypothesis he submitted before the single bench judge of Bombay HC carried the day for SRK's son.
The SC Judgement on Toofan Singh Vs State of Tamil Nadu seems to have played the clincher role in the Aryan Case.
Aryan Khan counsel's main argument was there is no evidence with the NCB, except statement under section 67 of NDPS Act. More so, the submission was that Section 29 of the Act (conspiracy) is totally not applicable. And the Whatsapp chats were not related to the current case.
Besides, the counsel for Arbaaz merchant submitted that the seizure was a small quantity. And the punishment will be up to 1 year only. Section 37 (non-bailable) of NDPS will kick in when the prison term is 7-years or more.
The mention of commercial quantity in the arrest memo is erroneous, the defence counsel argued.
To drive home the point that NDPS Act Section 67 statement is not sufficient alone to prove the allegations against Khan, former AG Mukul Rohtagi made a submission before the Bombay HC the judgment in the case of Md Nawaz Khan Vs Union of India.
Nawaz Vs Union Of India
Two Bench comprising Justice DY Chadrachud and BV Nagarathna passed a judgement on this case in Sept 2021, where the Additional Solicitor General SV Raju had made a submission that as per Tofan Singh v. State of Tamil Nadu, it was held that a confessional statement made under Section 67 of the NDPS Act will not be admissible as evidence, therefore, he does not seek to place reliance on the statement of the respondent.
Making submission in the same case, the ASG had underlined the circumstances like the seizure of a commercial quantity of contraband, the three accused (in the Nawaz) were travelling together in a vehicle and CDRs revealed that all the three were in constant touch and, thus, are not independent.
What Went For Aryan Khan
Making submission for the NCB, ASG Anil Singh said that, though the quantity of contraband seized from individuals is small, the seizure from the cruise are of commercial quantity.
At this point, Justice Sambre asked, "So you are saying the cumulative seizure as commercial quantity."
ASG argued, 8 persons were arrested. And the cumulative seizure is commercial in nature. As the cruise was booked for 2-days, the intention is the sale of contrabands.
Moreover, ASG Anil Singh submitted that while the SC had ruled Section 67 statement is not admissible, in Salil Shah case, the Bombay HC didn't apply the judgement.
Here again, Justice Sambre said, that is Section 438 of CrPC (Criminal Procedure Code). This section guides the anticipatory bail provision.
Significantly, lead defense counsel Mukul Rohtagi said if the collective seizure has been of commercial quantity, then cases should also be collectively on 1300 people on board.
The Turning Points
As per the judgement passed by Justice DY Chandrachud and BV Nagarathna, though, Section 67 statement is not admissible, circumstances are crucial to assess the involvement.
- Like in the Nawaz Case, here too Aryan and Arbaaz are known to each other.
- Both were travelling on the same cruise, though it is not their private cruise.
- But the seizure from individuals is not of commercial quantity.
- Except for Section 67 statement, no other evidence to prove conscious possession
The Jury Out
As the Whatsapp chats were not linked to the cruise case, also the individual seizures were of small quantity coupled with a lack of other primary evidence to prove the Section 29 (conspiracy), and above all, as the accused have been in jail for 25 days (means the case is not in the initial stage) - all these together have played a crucial role in granting the bail.