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Whatsapp Chats And The Facade Of Conspiracy: Decoding Aryan Khan Bail Order

On October 28, 2021, Justice Nitin Sambre granted the trio bail. The order was made available in its entirety. They've been charged under the NDPS Act's Section 8(c) read with Section 20(b), Sections 27, 28, 29, and 35.

"Having regard to the material brought on record by the Respondent (NCB) on the issue of conspiracy, this court prima facie has not noticed any positive evidence against the Applicants on the said issue. This Court is of the opinion that the claim put forth by the Respondent that Applicants should be considered to have the intention to commit an offense under the NDPS Act, having found in possession of commercial quantity, in the backdrop of case of hatching conspiracy is liable to be rejected."

NCB argued that because Section 29 of the NDPS Act, which deals with conspiracy, as applicable, the conditions for bail under Section 37 of the NDPS Act would apply, and the total amount recovered should be taken into account.

The court stated that in order to prove conspiracy, there must be positive proof of an agreement to commit an illegal act, which must precede a meeting of minds. And, in the matter at hand, it is a fact that Khan and Arbaaz were traveling together, although Dhamecha had her own travel plans, according to the court.
  • Conspiracy isn't revealed in WhatsApp chats
    The court also stated that there is nothing in Aryan Khan's WhatsApp communications that suggests a conspiracy between him, Arbaaz Merchant, and Munmun Dhamecha: Bombay High Court.

    "Nothing unpleasant could be found in the WhatsApp chats recovered from Applicant/Accused no. 1's(Khan) phone to imply that Applicant nos. 1 & 2(Arbaaz Merchant) or all three applicants, along with other Accused individuals in agreement, have formed a conspiracy to conduct the offense in question."

    Traveling on the same ship is a great way to meet new people. There isn't enough evidence to prove that there is a conspiracy. The court stated that the mere fact that Aryan Khan, Arbaaz Merchant, and Munmun Dhamecha were on the same cruise could not be used to support a conspiracy charge.

    "There is practically any positive evidence on record to satisfy this court that all the accused persons with common intent decided to do criminal activities," the court concluded, dismissing the NCB's contention that the cases of all the accused should be considered together.

    "This court is compelled to be sensitive to the fact that basic material in the form of evidence must be present in order to sustain the case of conspiracy against the applicants," the court continued. Simply because the petitioners were on the cruise does not constitute a sufficient basis for using the provisions of Section 29 (of the NDPS Act for conspiracy) against them."
  • Claims made by ASG during the course of the hearing pertaining to Section 29:
    During the hearing, the ASG claimed, "My argument is that we have detained 20 people so far, four of them are drug dealers. One of them was discovered to have a commercial quantity". Shivraj and Achit were narcotics dealers. The reason I bring this up is that in a conspiracy case, it is not required that a commercial amount or an intermediary quantity be discovered with all of the accused; if Section 29 of the NDPS Act applies, then there is a conspiracy. When Section 29 is used, the person who is accused of the crime is charged with the same crime as the conspirator."
  • Can communication like as WhatsApp chats/messages or call recordings in which a person discusses purchasing, selling, or consuming not be used as evidence?
    It can be utilized in a court of law if the dialogue is supported by proof. For example, if a person sends a message ordering a medicine, there must be proof that the drug was delivered. " A person can place an order and then cancel it at the last minute, preventing the medications from being delivered. A person may just be bragging to a friend that he or she has done drugs. Small-time criminals have been known to brag about murdering someone even though they were not involved. "The discussions alone may not be enough to prove drug use, or any crime for that matter, without verification,"
  • Earlier order of Special Judge VV Patil of NDPS Court while granting bail to Aachit Kumar:
    Aachit Kumar was granted bail by the Special NDPS Court on October 30, 2021. While granting bail to Aachit Kumar last week in the drugs-on-cruise case, Special Judge V.V. Patil, designated to hear cases related to the Narcotics Drugs and Psychotropic Substances (NDPS) Act, said that based solely on WhatsApp chats, it cannot be concluded that he supplied drugs to co-accused Aryan Khan, the son of Bollywood superstar Shah Rukh Khan, and Arbaaz Merchant, as pronounced by Special Judge V.V Patil
  • To conclude, the Arguments by Learned Senior. Advocate Mukul Rohatgi during the course of the hearing pertaining to Whatsapp Chats was key to note:
    The discussions between Aryan and Arbaaz where there is any reference of ganja took place in 2018, not in conjunction with the texts about having a blast, as senior lawyer Mukul Rohatgi pointed out during arguments for Aryan Khan in the Bombay High Court. Random phone searches and chat history searches can't provide context for personal discussions, and utilizing them to investigate criminal offenses is a massive infringement of privacy.

    The Karnataka High Court's verdict in Virender Khanna versus State of Karnataka on March 12, 2021, provided some recognition for this. The court stated that smartphones have grown in importance in recent years and that a person's phone is now "the essential device for handling the person's affairs." The court, therefore, decided that the provisions of the Code of Criminal Procedure (CrPC) governing searches of a person's property would have to apply to searches of their smartphone. The police can ask someone to open their phone or give them access to their email account, even though a formal notice under Section 91 of the Criminal Procedure Code, but they do not have the right to compel them to do so if they refuse.

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