“Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of the criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum-the district judiciary, the High Courts, and the Supreme Court to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts must be alive to both ends of the spectrum-the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of media, and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”, the Supreme Court had categorically observed in the Arnab Goswami case a year ago. Not only this, but the Apex Court had also reiterated its view that bail should be a rule and jail an exception. “As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression”, the Court had demonstrated the collective judicial approach regarding grant of bail to the accused persons given the presumption of innocence. Unfortunately, the Special NDPS Court of Bombay forgot these jurisprudential principles when it refused bail to Aryan Khan week.
The Special NDPS Court of Bombay has denied bail to Aryan Khan in a case that is based on weak evidence. It is nothing but a complete departure from the Supreme Court’s guidelines laid down in several cases. Admittedly, Aryan Khan’s innocence or guilt can only be proved through a trial. On 2 October this year, Aryan was detained by the Narcotics Control Bureau in a drug bust on a cruise ship even though no drugs were found in his possession. The NCB has not yet collected any substantive evidence against him except the WhatsApp chats. There is no evidence to suggest that he was consuming drugs at the time of his arrest by the NCB. No blood test was conducted. He has no previous criminal history. The NDPS law distinguishes between a drug consumer and peddler and forbids treating the former as hardened criminals. Sadly, the NCB is treating him like a hardened criminal. The NCB has charged Aryan and his friends with “conspiracy” under the NDPS law without any solid evidence on record. Also, to justify his arrest, the NCB has applied a unique theory of “conscious possession” because it recovered 6-gram charas from his friend. How can the NCB shift the liability to Aryan Khan if his friend has possession of drugs? The term “conscious possession” is not defined under the NDPS Act. The Courts hardly believe this jurisprudence of conscious possession. Thus, the whole case of the NCB is based on WhatsApp chats which can be used only in the trial, not in a bail adjudication. The WhatsApp chats are used by the NCB against Aryan Khan without a certificate under Section 65-B of the Evidence Act. This is why the Court should not rely on WhatsApp chats blindly and should give the benefit of doubt to Aryan Khan.
This is not the first time when the NCB arrested a person relying mainly on WhatsApp chats. The NCB has also done it in some other cases. Last year, the NCB had arrested Rhea Chakraborty in a drug case based on WhatsApp chats. After a month, she was released by the Bombay High Court when the NCB failed to convince the Court to reject her bail application. She was booked under Section 27 A of the NDPS Act, being involved in financing drugs and she had faced a severe media trial. “She is not part of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits”, the High Court had categorically observed while releasing her on her bail. Not only this, but the Bombay High Court had also dismissed the NCB’s charges as “highly disproportionate” and “extremely unreasonable”. The High Court did not approve the NCB’s argument that “celebrities” should be treated harshly and made an example of, saying that no actor must “incur any special liability” in the eyes of the law. It seems the NCB did not take any lessons from Rhea Chakraborty’s case and arrested Aryan Khan without sufficient evidence. Many people believe that he is also paying price for being a celebrity and son of a famous Bollywood actor. This is a dangerous trend that undermines people’s faith in the criminal justice system. Keeping a young man in jail merely based on WhatsApp chats is nothing but a gross misuse of criminal law. Aryan Khan belongs to a well-respected family who deserves bail subject to reasonable conditions. He is a young man who needs to be allowed an opportunity to live a dignified life. Putting him in jail will not serve any purpose. He deserves an opportunity to defend his case being a free citizen and the Court should adopt a humane attitude while dealing with his bail application. In an exclusive interview with India Today, former Attorney-General for India Mukul Rohatgi has also opined that Aryan Khan deserves to get bail.
Given the above discussion, it is submitted that criminal law should not be used as a weapon to harass citizens. All citizens should be treated equally and law enforcement agencies should arrest those who commit criminal offences based on solid evidence, not on inconclusive pieces of digital chats, etc. An arrested person faces a difficult situation in Indian society. The Supreme Court has rightly stated in some cases that a great ignominy, humiliation, and disgrace are attached to arrest. Arrest leads to many serious consequences not only for the accused but also for his family and friends. Mostly, the people do not make any difference between arrest at a pre-conviction stage and post-conviction stage. This is why the arresting power must be used cautiously, not according to the whims and fancies of the law- enforcement agencies and the Courts should decide the bail applications expeditiously. The time has come when the judiciary should stand up for protecting the personal liberty of people and the law-enforcement agencies should investigate the cases professionally. Let me conclude this piece with these insightful words of Justice V. R. Krishna Iyer in the Babu Singh case: “The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserve judicial notice. The whole issue, going by decisional material and legal literature has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as on the expression of ‘judicial discretion’. A scientific treatment is the desideratum. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety, and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process…Personal liberty deprived whom bail is the value of our constitutional system recognised under Article 21 that curial power to negate it is a great trust exercisable, not casually but judicially, with a lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble, decisive of a fundamental right. After all, the personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right”.
Lokendra Malik, Sr Advocate, Supreme Court of India
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