Lessons from Aryan Khan Bail arguments by Mukul Rohatgi in Mumbai HC
Argument of ex-Attorney general of India Sh Mukul Rohatgi in Aryan Khan's case on 26th Oct 2021 starting at 4:19 PM and finishing at 5:38 PM.
Lessons:
Arguments are structured as
1. Introduction of the case/parties/why they are here. Went to trial court etc.
2. Case facts (No possession, no recovery, no medical test, no phone in panchnama when whatsapp is main evidence)
3. Objections (Arrested by non-police officer)
4. Law point - sections and applicability
5. Citations - read relevant paras etc.
Day 1 Transcript from livelaw:
26 Oct 2021 4:10 PM Serial number 54 now called out.
Commotion outside as certain lawyers from Aryan Khan's team were not allowed inside. Adv Satish Maneshinde goes outside to ensure the juniors are allowed inside.
26 Oct 2021 4:19 PM
Aryan Khan matter taken.
Sr Adv MukulRohatgi : I beg to appear in the first of these matters.
ASG tenders reply to the bail application.
Mukul Rohatgi- I am sorry for this commotion. May I proceed? I appear for A1. He is 23 years of age. Did his undergraduate in Calafornia and returned in March 2020
The entire saga begins from Oct 2. A1 was not a customer, he was invited as a special guest. And invited by a man called Prateek Gaba, acting as an event manager
Gaba knew Khan and Merchant. Based to the advertisement, they arrived on the afternoon of October 2 at the cruise terminal in Mumbai.
NCB was present in some strength at the terminal. They had some information and we're there to apprehend. My client and Arbaaz we're apprehended before they could board the ship.
Nothing was recovered from my client(Aryan Khan) and they have nothing to show he consumed anything either. Rohatgi - There was no occasion to arrest my client, short and simple.
He was arrested on October 3. His statement was recorded.
Court - On third?
Rohatgi- Yes
Rohatgi highlights there was no recovery, no consumption or no medical test done as far as Aryan Khan is concerned.
We have raised the question in several petitions that even though these officers are not police officers...they exercise police powers. So they say they have the power to arrest. But otherwise say they are not police officers.
Rohatgi refers to last year's Supreme Court judgment in "Tofan Singh" case which held that NDPS officers are police officers and confessions given to them are inadmissible in evidence.
Rohatgi- Since there is no recovery or consumption, I am wrongly arrested. Rohatgi narrates how the bail application travelled to the High Court.
Rohatgi : What is put against me is that since I came with Arbaaz and apparently had knowledge of the contraband with him, I have conscious possession. Conscious possession is what is under my control and knowledge. If I am driving the car and something is in the car, there could be conscious possession.
My case is that there is no conscious possession at all. What somebody else had in their Shoe is not my concern. That cannot be my "conscious possession".
Rohatgi cites a judgment. "In an old case involving a minister he was booked for harbouring a terrorist as a servant brought him into the house. SC said that can't be the case".
Rohatgi says its not as if a party was going on. Why my client is targeted?
Rohatgi- Many people having larger and commercial amounts were also arrested.
Rohatgi says that even if conscious possession is taken, the maximum he can charged with is 1 year, for the 6grams.
Rohatgi : So I am not charged under 27A but they are charging me with conspiracy.
It is a general, amorphous vague kind of a situation to indirectly bring 27A of the NDCP Act and then the bar under section 37 of NDPS.
The trial judge has cited, conscious possession, bar under 37 and conspiracy to deny bail.
Rohatgi - WhatsApp chats recovered from my phone. They are not on record but cited. None of those chats relate to the cruise party.
Rohatgi - None of those chats have anything to do with the onset of this saga or...conspiracy if you want to call it that. The chats will have to be tested at the time of trial. But to use a general phrase of conspiracy, there is nothing.
26 Oct 2021 4:44 PM Rohatgi- Now if there are a group of friends who plan to smoke up there is a meeting of minds. But the plan here was aborted. They were arrested before. The penalty is of consumption. Possession of somebody else cannot be my possession unless there is control and knowledge. Rohatgi reading the arrest memo - I have no case either of consumption or of sale or purchase. I don't accuse any officer of NCB. I am not concerned or connected with panch witness no. 1 or 2. (Prabhakar Sail or KP Gosavi).
The Director of NCB yesterday said the affidavit was a result of some political leader. But today the unsavoury controversy is rebounding on me, they are putting it on me. I don't want to sully my case by siding with either the political personality or the panchas. Because I am not connected to anyone.
I have a great case.
In this remand there is no seizure of the mobile phone. Mobile seizure is not even in the panchnama. Court asks then what is the basis for the WhatsApp Chats.
Rohatgi- The Whatsapp Chats have nothing to do with the cruise case. They are all chats with people from before.
Rohatgi- I went there, I did not have anything but I was arrested.
Rohatgi says that Aryan Khan had gone there with Arbaaz. That's all. 'They are some boys..the law provides that for small quantities the maximum punishment is one year. And there is also immunity from prosecution after they go to a rehabilitation centre' - Rohatgi.
Rohatgi reading section 20b (ii) of NDPS Act to say that the legislative intent is clear. Maximum is 1 year and minimum is nothing.
Rohatgi says that there is nothing against Aryan Khan. Section 27A is financing any activities of cultivation of coca plant or opium or indulging in production. Aryan is not charged with this but Rohatgi says it still won't apply.
Rohatgi : I have not financed anyone for drug trafficking.
Rohatgi : If you apply the offences of conspiracy and abetment to Section 8(c), 20(b) and 27, then only the punishment is nothing more than 1 year.
Rohatgi : The legislative intent is that if you consume or caught with possession of small quantity and if you go in for rehabilitation there is immunity from prosecution.
Rohatgi : In US and some parts of the world, cannabis is legal.
Rohatgi refers to a chat prepared showing the arrests and quantity recovered. Says that maximum is Aryan Khan can be connected to Arbaaz Merchant and A17(Aachit Kumar) as per the prosecution.
Rohatgi : But Aachit was not on the cruise, he was arrested from his home...There is no meeting of minds between the accused
Court - Even in the chart, there is some connection to A17. Rohatgi repeats what he said earlier.
Desai (Aryan's Advocate in sessions court) - Can I explain A17? He is also a young college kid. He was the person with whom A1(Aryan) was playing poker. And the chats were before 12- 14 months and that is being cited in the WhatsApp. Today lots of gaming is happening online. During the lockdown lots of children were playing. It is also being considered by courts.
Rohatgi- So there is no material that my client was financing illicit traffic.
Rohatgi : He mentioned gaming. My lords remember rummy? SC has said it is a game of skill.
Amit Desai submits that the Whatsapp Chats between Aryan Khan and Aachit were about online poker. "There was nothing beyond communication about Poker"
Rohatgi : At the end of the day the other side will rely on chats which I don't have. But I want to say they are unconnected events.
Rohatgi citing certain judgments : I have a better case than all these cases I am citing because there is no recovery from me.
Rohatgi now cites the judgement of Supreme Court Ragini Dwivedi vs State of Karnataka.
Rohatgi refers to para 7 of the Ragini Dwivedi judgment in which the SC granted bail. No drugs were found and the applicant was arrested on a conspiracy charge, he says.
Rohatgi says that the Supreme Court held in Ragini Dwivedi's case that the bar for bail under 37 of NDPS Acr would not apply.
Rohatgi - Ragini's case the SC held that at best it was a case of consumption.
Rohatgi is now referring to Bombay High Court's judgement in Prajesh Vaghani vs State of Maha on conscious possession.
Rohatgi- There is no question of conscious possession. Arbaaz is not my servant, he is not in my control. I have no control over what is found in Arbaaz's shoe.
26 Oct 2021 5:33 PM Rohtagi - This case has attracted public and media gaze because of his parents. Unsavory controversy between political personalities and NCB cannot rub off on me.
Rohatgi says he denies all allegations in the NCB's reply. "I deny everything. I am not making allegations against any officer or anybody", he says
Rohatgi : I filed a rejoinder saying that I am not making any allegations against the officers or panchas & I have no connection with them.
26 Oct 2021 5:38 PM
Rohatgi concludes his arguments saying "I respectfully submit that this case is for bail".
An advocate says he has filed an intervention to object the bail. He objects to the bail applications being taken up on priority.
Adv Subhash Jha : No denial of the fact that people are languishing in jail. I am appear for a public servant.
Rohatgi : I object to the intervention.
Justice Sambre : Mr Jha, you appear in my court, everyday. I do not rise without completing my board. Whosoever comes to court gets a hearing.
26 Oct 2021 5:45 PM
Adv Amrish Sharma also files an intervention. Says it is on similar grounds of preference given to this matter. Justice Sambre says says whoever has any other urgent matters can mention them. Judge says he sits till even 7 PM being sensitive to the concerns of the bar. Justice Sambre now calls other remaining matters. Calls item 59.
ASG Anil Singh argues that while no recovery was made from Aryan Khan, he may still be booked under section 8c under the NDPS, for “conscious possession”.
“The scope of section 8(c) is very wide. Therefore there may be a case that the person has not consumed the drug but is found in possession, 8(c) will apply,” he said, as per LiveLaw.
“We have argued conscious possession in the sessions court as well. That if two people are travelling together, and the first person is knows the drug is with the other and it is for their consumption...Though the person may not be in actual physical possession, he may be in "conscious possession," he added.
ASG Singh, while referring to a Supreme Court judgement for an NDPS case says that “custody is the rule, bail is the exception".
Court points out that the judgements being cited are under 438 of CrPC(anticipatory bail)
Former Attorney General, Mukul Rohatgi, makes rejoinder statements on behalf of Aryan Khan. He also said there is no material to allege conspiracy.
“Their case is if it is not a coincidence, but a conspiracy. There has to be meeting of minds. Say a telephone call between all 8. So apart from Arbaaz, none of these chaps have anything to do with me,” he said as per LiveLaw.
“I can understand if even all ten were friends. Apart from the people mentioned in the chart, there were two other people one is Manav and Gaba(who invited me). They were not arrested,” Rohatgi added.
Court grants bail.
- “Out of the twin conditions for bail, Section 37 does not apply because 27A has no application. Section 64A has immunity from prosecution if you are prosecuted under Sec 27 and you go to rehab." Mukul further questioned Aryan’s time in jail for the last 20 days mentioning that neither possession nor consumption was proven.
- “I am arguing a case that is actually not there against me. My case is not of possession or consumption. In the US and some parts of the world, cannabis is legal. With this compendium of facts, what I am saying is that there is no case. There is no consumption, no possession... Why this boy has been sent 20 days in jail?" he said.
- The NCB and Wankhede on Monday had said the extortion allegations were part of vendetta by a political leader whose son-in-law had been arrested by the NCB in the past. In its reply, NCB stated that bail should be rejected to Aryan Khan on those grounds, alone.
- "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 told the court. "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.
Aryan Khan’s legal counsel stated that the conversation between Aryan Khan and Achit Kumar, another accused person who was arrested by the NCB later, was not about drugs, but about online poker. “There is some conversation about some winnings that is now being shown as a transaction,” Desai stated. Adding further, Rohatgi said, “Financing is a very defined use of a phrase. But here there is no financing, even if there are some chats, it is more than a year old. There was an old case of rummy. So, the Supreme Court has said it is a game of skill. Even horse racing is considered a game of skill, as one has to study the horses”.
4. ‘Treat him as victim and not as accused’
Mukul Rohatgi, the legal counsel for Aryan Khan contended that the "legislative intent" behind the Narcotic Drugs and Psychotropic Substances (NDPS) Act, under which Aryan Khan 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," said.
"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," he said, adding he cannot be held responsible for some other person's alleged possession of drugs.
5. ‘Case being blown out of propotion’
Rohatgi argued that the 23-year-old has been wrongly arrested and kept in jail for over 20 days 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.
One of the bail condition was to regularly visit police station every friday. Aryan khan did that for 6 weeks before approaching high court for removing the need to visit PS as condition for bail. These 10 points were put as argument:
- He assiduously and scrupulously complied with all bail conditions mentioned.
- He visited the NCB office every Friday as was directed by the High Court in the order stating conditions. He visited the office on November 5, 12, 19, 26 and December 3 and 10, 2021.
- He responded to the summons of the Special Investigation Team, NCB New Delhi by visiting the Kharghar office of the NCB Mumbai zonal unit.
- No further statement was recorded since November 12 after the case was taken over by the Special Investigation Team, NCB New Delhi.
- There is no likelihood for the Mumbai office to interrogate him and as a consequence, no point for his attendance to their office every Friday.
- He has been followed by a large number of media personnel, extensively photographed and questioned while visiting the NCB office.
- In order to maintain a law and order situation, a large number of police officials are deployed. However, if the bail condition is relaxed then, that can be dispensed with.
- Grounds for parity with co-accused Manish Rajgadiya whose weekly presence was dispensed with.
- He will appear as and when summoned.
- He is a student from a reputed family and wants to lead an honourable and dignified life.
Ref links:
- https://www.barandbench.com/news/litigation/aryan-khan-bail-hearing-mukul-rohatgi-to-argue-live-updates-from-bombay-high-court [Day 1]
- https://www.livelaw.in/top-stories/aryan-khan-arbaaz-merchant-munmun-dhamecha-bombay-high-court-bail-hearing-live-updates-184316?infinitescroll=1 [Day 1]
- https://www.livelaw.in/top-stories/aryan-khan-case-live-updates-from-bail-hearing-in-bombay-high-court-arbaaz-merchant-munmun-dhamecha-184422 [Day 2]
- https://www.barandbench.com/news/litigation/aryan-khan-bail-hearing-live-updates-bombay-high-court [Day 2]
- https://www.outlookindia.com/website/story/entertainment-news-bombay-hc-to-listen-to-aryan-khans-bail-petition-today-five-new-arguments-by-mukhul-rohatgi/398855
- https://www.outlookindia.com/website/story/entertainment-news-will-aryan-khan-get-bail-today-all-thats-happened-so-far/398757
- https://www.news18.com/news/india/aryan-khan-drugs-case-srks-son-sought-exemption-from-appearance-before-ncb-on-these-10-grounds-4543178.html
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