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Sanjeev Kumar Patro

News Highlights

  • The defense counsel today referred to as many as five judgements delivered by the Apex court and other HCs in the country over the years.

Will the argument by senior advocate Amit Desai today that 'Law is - bail is the rule and jail is an exception" ride off star kid Aryan Khan into the Sunset on Thursday? The Bombay High Court Judge NW Sambre will hear the case tomorrow after 2:30 PM.

As the court assembles today to hear SRK son's bail plea, senior counsel Amit Desai was on his legs. He took off from where exactly senior advocate and former AG Mukul Rohtagi had left.

When during the hearing in the sessions court, ASG Anil Singh had referred to SC judgement on Mahimananda Mishra Vs State of Orissa to argue against granting the bail to Aryan Khan, the defense counsel today referred to the granting of the first bail to two Odisha youths - Manish Rajgharia and Avin Sahu -   in the Mumbai Cruise Drug bust case.

The defense counsel today referred to as many as five judgements delivered by the Apex court and other HCs in the country over the years. While one Judgement quoted was on NDPS matter, the others pertain to observations of the top court on the definition of conspiracy and on section 41 of criminal procedure code (power of Police to Arrest without Warrant).

Defense Hypothesis

The arguments before the single bench judge of Bombay HC by the defense counsel for Aryan Khan rested on the following hypotheses.

  • The sessions court while rejecting the bail plea had ruled that Aryan Khan was in 'conscious' possession' of drugs, and moreover, the slapping of conspiracy charges (sec 29 of NDPS Act) - both had together proved the bumps on road to bail.
  • Mukul Rohtagi, therefore, first tried to demolish the 'conscious possession' order, when he made a submission in Bombay HC that "What somebody else had in their Shoe is not my concern… Possession of somebody else cannot be my possession unless there is control and knowledge."
  • The former AG to pull down the 'conspiracy section' had submitted that if three unconnected persons coming for the same purpose that is not a conspiracy.
  • Senior Advocate Amit Desai today cited the Judgement of State Vs Nalini in the Rajiv Gandhi Assassination Case, where the order had elaborated the definition of conspiracy.
  • The order said two or more persons conspired together to commit an actionable wrong thing or an offence is a conspiracy
  • The defense counsel submitted that the three here are unconnected, so no conspiracy.

Odisha Connection

The defense counsel of Aryan Khan today referred to the bail granted to two Odisha youths, despite the seizure of contrabands from them. Counsel Amit Desai said, "Two people from Orissa with an identical reply have been granted bail."

The Reply By Odisha Youths

As per the NCB arrest memo, both the youths were slapped with sections for consumption, possession and conspiracy (section 29). But the same sessions court that denied bail to Aryan Khan granted bail, despite NCBs stout opposition.

Reasons for Bail ---

  • Counsel for Avni Sahu argued that no seizures were made from him. He was arrested for smoking twice on the cruise.
  • NCB had not conducted any blood test to verify consumption. (Medical test not done on Aryan Khan too)
  • However, unlike Aryan Khan, he had no Whatsapp chats. And he didn't disclose supplier names.
  • While Rajgharia's counsel submitted that no quantity of contrabands was seized from him, 2.4gm charas was handed over to NCB by cruise ship security.
  • Criminal conspiracy section is not applicable here because, unlike Aryan Khan, the seizures are independent.
  • He has no connection with the other arrestees.
  • The submission was this Applicant's conduct cannot be connected with co-accused (Aryan Khan and co) when the Applicant was apprehended on 4th October and separately.

When senior counsel quoted this judgement, Judge Sambre asked, "Who accompanied them?"

At this Desai, hastened to submit that they are two independent people. But in the Aryan Khan case, Arbaaz and Aryan are connected with each other.

Inference: The above statements show why the conspiracy section stuck with Aryan Khan.

The Evidence

 As per the NCB arrest memo, in order to draw the conspiracy hypothesis against Aryan Khan, they had produced the Whatschap chats as evidence. But defense counsel today submitted arguments to discard the digital evidence.

  • Mukul Rohtagi submitted that the NCB didn't prepare the panchnama as per the criminal procedure code.
  • They hid the seizure list from the arrestee.
  • The memo didn't mention seizure of mobile.
  • Amit Desai argued that the chats are 1-3 months back.
  • Without a 65 b certificate, the evidence is not admissible in court.

By The Book

As per State Vs Navjot Sandhu, electronic evidence is admissible without a 65B certificate. But the same was overruled by the Kerala court in the PV Vs PK Basheer case.

But the twist was when in the previous case, there has been no suspicion over the authenticity of the electronic evidence, in the second case the electronic evidence produced was not the original electronic evidence.

 Jury Still Out?

While the defense counsel tried all elbow room available in the legal corridor to move their argument far and deep, the ASG will make submission tomorrow. As of now, the impression is the Aryan Khan drug bust case is not open and shut.

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