The Bombay High Court observed that there was no material on record to prove that Aryan Khan and two others hatched a conspiracy to commit a crime in the cruise ship drugs bust case. Justice Nitin Sambre further observed that there was nothing objectionable in the WhatsApp chats the Narcotics Control Bureau of India relied on while objecting Khan's plea for bail.
The high court's detailed order was made available almost a month after Khan was granted bail on October 28.
Khan, son of Bollywood superstar Shahrukh and his wife Gauri, was arrested by the anti-drug agency on October 3 following a late-night raid on a cruise ship that was en route to Goa.
Seven others including Khan's friends Arbaaz Merchant and Munmun Dhamecha were also arrested by the anti-drug agency. The drugs bust on the cruise ship led to the recovery of 13 grams of cocaine, 5 grams of MD (mephedrone), 21 grams of charas (small quantity), 22 pills of MDMA (ecstasy) (intermediate quantity), and Rs 1,33,000 from the accused at International Cruise Terminal, Mumbai.
Merely traveling together not conspiracy: High Court
To infer an act of hatching a conspiracy, there must be positive evidence against Khan along with Merchant and Dhamecha about an agreement to do an unlawful act or to do a lawful act by unlawful means, and such agreement must precede with a meeting of minds, the court said.
"There is hardly any positive evidence on record to convince this Court that all the accused persons with common intention agreed to commit an unlawful act," the court said.
Referring to the case at hand, the court pointed out that the investigation carried out by the anti-drug agency suggested that Khan and Merchant had planned to travel together, while Dhamecha's plan was independent from that of the duo.
Merely because Khan, Merchant, and Dhamecha were traveling on the same cruise that by itself cannot be a foundation for a conspiracy charge against them, the court said.
The high court said it must be sensitive to the fact that there must be basic evidence to substantiate a conspiracy case while rejecting the anti-drug agency's argument that a high degree of evidence is not required at this stage of the proceedings to establish the case of conspiracy.
Pertinently, the Court observed that there was nothing objectionable in Khan's WhatsApp chats to suggest conspiracy. Relying on the top court's landmark Tofan Singh judgment, the court reiterated that confessional statements made by an accused do not have a binding effect. However, the court said clarified that an investigating agency can consider confessional statements for the investigation purpose only and it cannot use the same "as a tool for drawing an inference" that an accused has committed an offence.