On October 20, special judge V.V. Patil denied bail to Aryan Khan, accused of committing offences under sections of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The facts state that Aryan Khan and his friend were apprehended together by the Narcotics Control Bureau (NCB) at the International Cruise Terminal, with the friend allegedly in possession of 6 grams of charas concealed in his shoes.The bail application was primarily rejected because of two reasons. First, the NCB officials recorded voluntary statements under Section 67 of the NDPS Act, which disclosed Aryan Khan and his friend admitting that they were in possession of the said substance for their consumption and enjoyment. This led the court to hold that Aryan Khan was in ‘conscious possession’ of the said substance or, in other words, had knowledge of the said substance. Second, the WhatsApp chats of Aryan Khan revealed that he contacted several foreign nationals and unknown persons who are suspected to be part of an “international drug racket”.In both these cited reasons, it appears that the court did not follow precedent and established principles of law.Also Read: Aryan Khan Drug Case: Witness Levels Sensational Allegations of ExtortionVoluntary statements have no evidentiary valueCountering the first reason, the court relied upon the statements of Aryan Khan made to the NCB officials. In relying upon these statements, the court did not take into account the principle established in the case of Tofan Singh vs State of Tamil Nadu (2013), wherein it was held that the NCB officials are “police officers” and thus, any confessional statement made to them would be inadmissible in court by virtue of section 25 of the Evidence Act.This principle was invoked even at the stage of grant of bail in the case of Shivaraj Urs vs Union Of India (2020), wherein when the prosecution relied upon the voluntary statements of the accused made to the NCB officials, the court heavily relied upon the case of Toofan Singh and granted bail to the accused, who was also charged under the NDPS Act. Thus, the court could not rely upon the confessional statements of Aryan Khan made to the NCB officials.WhatsApp chats have no evidentiary value Now, moving on to the second reason. The court relied upon the WhatsApp Chats of Aryan Khan with the other persons to hold that he “conspired” with other illegal traffickers, including others accused of committing the offences prescribed under the NDPS Act. Now, the copies of WhatsApp chats are electronic evidence and thus, are categorised as secondary evidence. Section 65B of the Indian Evidence Act engrafts the procedure regarding the admissibility of electronic records. It mandates that a certificate must be submitted along with copies. The purpose of this procedure is to sanctify secondary evidence in electronic form, generated by a computer.Recently, the Supreme Court in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantya (2020) reaffirmed the decision of P.V. vs P.K. Basheer (2014), wherein it was held that the secondary evidence of electronic record would be inadmissible if not accompanied by a certificate stipulated under section 65B of the Indian Evidence Act, 1872.Now talking about the stage of grant of bail, the Punjab and Haryana high court in the case of Rakesh Kumar Singla vs Union of India (2020) had extended the requirement of submitting a certificate along with electronic evidence while deciding a bail application. It was held that without such a certificate, the evidence would not hold any value in the eyes of law. However, again, the court didn’t follow this evidentiary mandate and proceeded to rely upon these conversations.NCB zonal director Sameer Wankhede. Photo: PTINo evidence of conspiracy by Aryan KhanRelying upon the WhatsApp chats which has no evidentiary value, the court concluded that just because he conversed in the past with unknown drug suppliers and peddlers and named the supplier who had supplied charas to them during interrogation, all these facts prima-facie show that the accused acted in conspiracy with each other.While making this observation, the court went beyond the scope of the meaning of ‘conspiracy’. The term ‘conspiracy’ is not defined under the NDPS Act. The Indian Penal Code defines ‘conspiracy’ as an agreement wherein two or more persons agree to commit an illegal act.Now, section 29 of the NDPS Act punishes a person if he or she either abets or becomes a party to a criminal conspiracy to commit an offence. Does it mean that if two or more persons agree to commit an offence under NDPS Act, then they are both liable under Section 29 of the Act? Well, if they are, then nearly all persons charged under this Act would be covered under this provision because of the reason that the act of acquiring the contraband does not happen in isolation. There is always a seller and a buyer.Moreover, it appears that the court has accumulated the past acts of the accused to hold that he is liable for conspiracy. Every act must be seen in isolation until it is alleged that past acts are connected with the present act and all the accused were aware of such conspiracy. Surely, this is not the case in Aryan Khan’s case. All the past acts constitute separate offences and must be prosecuted separately. Unfortunately, for the past acts, the NCB has only WhatsApp chats, which again have no evidentiary value.Further, the court has not pointed out any single fact which connects the accused with the other accused persons in forming the conspiracy. To prove the offence of conspiracy, it is an essential condition to prove that all the accused persons agreed together to commit an offence or had the common intention to commit such an offence. Just because some separate offences were being committed at one place does not indicate at all that all the persons conspired together. Surprisingly, the NCB did not find any single WhatsApp chat which can prove the conspiracy with other accused persons. Despite this, the court held that the prosecution has a prima facie case against Aryan Khan that he was party to the conspiracy. This was observed despite the fact that the prosecution has not put forth single evidence of conspiracy with other accused persons.Also Read: Aryan Khan Says NCB ‘Misinterpreted’ WhatsApp Chats to Implicate Him in Drugs CaseMost importantly, the court in para 28 of the order mistakingly relied upon the case of Showik Chakraborty vs Union of India (2020) for invoking Section 29 of the NDPS Act in the present case. The court held that the Showik case has identical facts and thus, section 29 can be invoked in the present case. In Showik, the accused was found to be in connection with a co-accused i.e., Anuj Keshwani who was found to be in possession of commercial quantity. However, in the case of Aryan Khan, the court did not point out any connection he had with the co-accused who was found to be in possession of commercial quantity.Since all the accused persons are charged under Section 29 of the NDPS Act and one of the accused was apprehended with commercial quantity, it made the court invoke the wrath of Section 37 against all the accused persons. This section states that if any person is apprehended with commercial quantity, then he shall not be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. There have been only speculations about the involvement of the accused in conspiracy and abetment, but they are not supported by any evidence that has evidentiary value.It is important to curb the illicit use and misuse of narcotics and drugs, but this aim cannot be achieved by flouting the principles of the criminal justice system. Wilhelm Reich had said, “You think the end justifies the means, however vile. I tell you: the end is the means by which you achieve it.” Whether Aryan Khan is guilty or not, justice will only be served if the means to achieve justice are fair.Ravi Singh Chhikara is a lawyer who practices in the Supreme Court and the Delhi high court. Prakruthi Jain is a student at NALSAR University.
