The Bombay High Court would on Wednesday continue hearing on bail applications of Bollywood actor Shah Rukh Khan's son Aryan Khan and two other persons arrested by the NCB following alleged drug seizure from a cruise ship off the Mumbai coast earlier this month.
Aryan (23), meanwhile, distanced himself from an allegation of extortion attempt against the NCB's zonal director Sameer Wankhede who had supervised the raid on the ship on October 2.
Aryan's lawyers Mukul Rohatgi and Satish Maneshinde argued before Justice N W Sambre that the Narcotics Control Bureau (NCB) had no evidence against him.
"Aryan has no complaints whatsoever against any officer of the NCB including its zonal director Sameer Wankhede. Aryan is not concerned with these unsavoury controversies. He completely denies any relation to this," senior counsel Rohatgi also told the court.
The NCB and Wankhede on Monday had said the allegations were part of vendetta by a political leader whose son-in-law had been arrested by the NCB in the past, the lawyer said.
"But today, the NCB is putting this on Aryan Khan and saying he is tampering with witnesses. This is affecting my client's case," Rohatgi argued.
He contended that the "legislative intent" behind the Narcotic Drugs and Psychotropic Substances (NDPS) Act under which Aryan and others were arrested was reformation in cases involving small quantities of drugs. The Act intends that young persons be treated as victims and not as accused, he added.
Aryan Khan is a "young boy with no prior antecedents," Rohatgi added.
"The legislative intent of the NDPS Act is clear about this. Section 64A of the Act provides immunity to those persons who have been accused of possessing small quantities.
"If these persons are agreeable to be sent to rehab then that should be allowed. Aryan's case is not even of possession or consumption," Rohatgi said, adding he cannot be held responsible for some other person's alleged possession of drugs.
The 23-year-old has been wrongly arrested and kept in jail for over 20 days, he said.
The case was being blown out of proportions by some people who have vested interests and the media was paying attention to it because of some unsavoury controversies, otherwise it was a simple case, he added.
"There is no evidence of consumption, no recovery of drugs and absolutely no evidence to show his participation in this so-called conspiracy and abetment as alleged by the NCB," Rohatgi said.
After Rohatgi completed his arguments, the high court said it would continue hearing on the bail pleas of co-accused Arbaaz Merchant and Munmun Dhamecha on Wednesday.
He will also hear the arguments of Additional Solicitor General Anil Singh, the NCB's lawyer, on Wednesday, the judge said.
During his argument, Rohatgi also pointed out that Aryan was not subjected to any medical examination to show that he had indeed consumed drugs.
The senior counsel assailed the order of the special NDPS Act court refusing Aryan bail on the ground that he was aware that his friend Arbaaz Merchant had drugs and hence Aryan was guilty, prima facie, of "conscious possession".
"Conscious possession means something that is under my control. What somebody has in their possession or not is not in my control. Arbaaz Merchant is not my servant and what he has is not in my control," Rohatgi argued.
Even if it counted as possession (on Aryan's part), the quantity was only six grams of charas which is considered as 'small quantity' under the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the punishment for the same is only one year, he added.
The NCB also wrongly relied on WhatsApp chats of Aryan Khan as they had no connection with the present case, Rohatgi said.
"The chats are of 2018, 2019 and 2020 and it has absolutely no connection with this cruise party. The chats are with some random persons including some foreigners about drugs. This would relate to alleged consumption in the past," he said.
Aryan Khan did not even know the other accused barring Arbaaz Merchant and Aachit Kumar with whom he got acquainted with while playing online poker, Rohatgi said, questioning the NCB's charge that Aryan was part of conspiracy and abetment.
This was not a case where people were caught by the NCB while smoking and consuming drugs during a party, and most of the arrested accused were not even on the cruise ship, Rohatgi said, adding that Aryan himself had not boarded the ship at the time of arrest.
Aryan had also retracted the statement allegedly given by him to the NCB after his arrest, the lawyer said.
Aryan was arrested on October 3 along with his friend Arbaaz Merchant and fashion model Dhamecha by the NCB, along with others. While Aryan and Merchant are now lodged at the Arthur Road prison, Dhamecha is at the Byculla Women's Prison.
A special court for NDPS cases had refused to grant them bail, noting that they were, on the face of it, part of conspiracy and Aryan Khan apparently had a nexus with drug peddlers and indulged in "illicit drug activities on a regular basis".
Earlier in the day, the NCB opposed Aryan's bail plea in an affidavit filed before the HC, alleging that he was not just a consumer of drugs, but also involved in illicit drug trafficking.
The agency also claimed that Aryan Khan and Pooja Dadlani, Shah Rukh Khan's manager, were tampering with the evidence and influencing witnesses.
Aryan Khan's lawyers, on the other hand, submitted an "additional note" to the HC, stating that he had nothing to do with the allegations against Sameer Wankhede.
The NCB said that Aryan Khan's attempt to influence witnesses was "evident from the contents of a purported affidavit of one Prabhakar Sail" (who has accused Wankhede of attempted extortion), and Dadlani "appears to have influenced panch witnesses when the investigation is ongoing".
The agency said prima facie investigation revealed that Aryan Khan used to procure drugs from Arbaaz Merchant and was in touch with "some persons abroad who appear to be part of an international drug network".
The affidavit further said though drugs were not recovered from Aryan Khan, he "participated in the conspiracy".
