Aryan Khan's Bail Under Shadow Of 2018 SC Judgement On  A Criminal Case In Odisha

Bollywood Superstar Shahrukh Khan's son Aryan Khan had gone for a 'blast' on the sails, but the twist, like in any bollywood flicks, is Aryan has eventually been 'blasted off' to prison cell.

As the Starkid is fervently waiting for the judgement day (Oct 20), the quirky tale is the SC judgement on a 2018 criminal case in Odisha is making his road to bail bumpy. Since Aryan Khan has been charged with 'conspiracy' by the Narcotics Control Bureau in the Mumbai cruise drug saga, the State of Orissa Vs Mahimananda Mishra case may cast a shadow over his bail plea.    

The prosecution has invoked section 29 of NDPS (Narcotic Drugs and Psychotropic Substances) Act against Aryan Khan. This section deals with punishment for abetment and criminal conspiracy.  

Countering the arguments put forth by the defending counsel in the NDPS court that Section 29 is not applicable against Aryan, ASG Anil Singh said there is no restriction on applying the Section.

"It is not a correct position. As far as charges are concerned, investigating agency can invoke any sections. And as the investigation progresses further, it has to collect evidence," he argued.

The Odisha Bump

When citing Section 37 of the NDPS Act, the prosecution argued against granting bail to Aryan Khan, the defence counsel argued against the non-applicability of Sections 29 and 37.

During the arguments in the case, AK's lawyer (senior advocate Satish Maneshinde and his team) picked up the grey areas like non-recovery of any drugs/psychotropic substances from AK, lack of any evidence to show AK's role in 'conspiracy'.

But demolishing the glare put on the grey areas, ASG said, "I have come with a case of conspiracy. In one case if there are 15-20 people involved and it is case of conspiracy and possession with one accused, then section 37 kicks in." And then stringent conditions against the grant of bail will apply, he argued.

Fortifying his cause, the ASG then cited many SC/HC judgements.  Bulldozing the 'lack of evidence' argument made by the defence counsel to prove conspiracy charge against AK, ASG cited here the 2018 case of  State of Orissa Vs Mahimananda Mishra, where SC had set aside the bail granted to the accused by Orissa HC.

The bench comprising Justices L Nageswara Rao and Mohan M. Shantanagoudar in Sept 2018, while setting aside the grant of bail by Orissa HC, ruled that "It is common knowledge that generally direct evidence may not be available to prove conspiracy, in as much as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. Therefore, the court (Orissa HC) need to rely on the indirect (circumstantial) evidence available before considering the prayer for bail."

In the same case, the Apex court had further observed that, while exercising its discretion, a court needs to do so in accordance with the basic principles governing the grant of bail - which is clearly enunciated in the 2014 SC Judgement in Neeru Yadav Vs State of Uttar Pradesh case.

The Core Law

As per the SC, the basic principles governing grant of bail are the following.

• Existence of prima facie case against accused.
• Gravity of allegation.
• Position and Status of Accused.
• Likelihood of fleeing and repeating the offence.
• Possibility of tampering with the evidence and obstructing the Courts.
• Criminal antecedents of the accused.

Core Law And Aryan Khan

Strengthening the prosecution cause, ASG then said the following.

• While granting bail, Court has to consider the following how stringent are NDPS provisions
• As per international conventions, drug trafficking and abuse has to be taken seriously.
• Court may consider the bail prayer at a later stage, but not at this stage. The agency is yet into the task of unravelling the plot of connection between the accused.

Flashback: State of Orissa Vs Mahimanand Mishra

Industrialist Mahimananda Mishra was arrested by Odisha police in 2016 from Thailand on the charges of masterminding (conspiracy) the murder of Mahendra Swain (Manager of a stevedoring company in Paradeep).  Orissa HC granted bail to Mishra in May 2017. The Court then overruled the plea of the State of Orissa that the accused is an influential person and may tamper evidence if granted bail.

However, hearing the case, the Apex court in 2018 had set aside the HC ruling.