The Bombay High Court, in its detailed order granting bail to actor Shah Rukh Khan's son Aryan Khan and two others in the drugs-on-cruise case, has said that prima facie it has not found any positive evidence against the accused to show that they had conspired to commit an offence.
A single bench of Justice N W Sambre had on October 28 granted bail to Aryan Khan, his friend Arbaaz Merchant and a fashion model Munmun Dhamecha in the case on a personal bond of Rs one lakh each. A detailed copy of the order was made available on Saturday.
The court said that perusal of the WhatsApp chats extracted from the phone of Aryan Khan shows that nothing objectionable was noticed to suggest that he, Merchant and Dhamecha along with other accused in the case have hatched a conspiracy of committing the offence in question.
It also held that the confessional statement of Aryan Khan recorded by the NCB under section 67 of the NDPS Act can be considered only for investigation purposes and cannot be used as a tool for drawing an inference that the accused have committed an offence under the NDPS Act.
"There is hardly any positive evidence on record to convince this court that all the accused persons with common intention agreed to commit unlawful acts," the court said while rejecting the Narcotics Control Bureau's (NCB) argument that the case of all the accused ought to be considered together.
Rather the probe carried out till date suggests that Aryan Khan and Arbaaz Merchant were travelling independently of Munmun Dhamecha and "there was no meeting of minds' on the alleged offence, the 14-page order said.
"So as to infer the case of conspiracy against the applicants also, there is absence of material on record of them having such meeting of minds with the other accused, who were named in the offence in question," the order said.
The court further noted that the trio had already suffered incarceration for almost 25 days and the prosecution had not even conducted a medical examination on them so as to determine if they had consumed drugs.
Aryan Khan, Merchant and Dhamecha were arrested by the NCB on October 3 and were booked under relevant sections of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for conspiracy, possession, sale, purchase and illicit trafficking of banned substances.
The court in its order noted that Aryan Khan was not found in possession of any objectionable substance and this fact has not been disputed. Merchant and Dhamecha were found to be in illegal possession of drugs, the quantity of which is considered a small quantity.
"The court, in such cases, is first required to ascertain whether there is enough material on record to prima facie infer that the applicants (Aryan Khan, Merchant and Dhamecha) have hatched a conspiracy and that the prosecution was justified in invoking provisions of section 29 (criminal conspiracy) of the NDPS Act," the order said.
It added that to infer so, there has to be positive evidence about an agreement to do an unlawful act and such agreement must precede with meeting of minds.
Justice Sambre further said that the court needs to be sensitive to the fact that there has to be presence of basic material in the form of evidence so as to substantiate the case of conspiracy against the accused persons.
"Merely because the applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of section 29 (conspiracy) of the NDPS Act," the court said.
Justice Sambre further said that even if the case of the prosecution is considered, the maximum punishment is not more than one year for such an offence.
Aryan Khan had walked out of the Arthur Road prison on October 30. As per the bail conditions imposed by the high court, he is required to appear before the NCB office in south Mumbai every Friday to mark his presence and shall not indulge in similar offences or tamper with evidence in the case.
Aryan Khan, Merchant and Dhamecha have also been directed to not leave the country without permission from the trial court and to inform the NCB if they intend to leave Mumbai.