Why Aryan Khan and Rhea drug cases are so similar in many ways

In July this year, a Supreme Court bench comprising Chief Justice N V Ramana and two other judges ruled that Whatsapp messages cannot be used as evidence in court and that the author of Whatsapp messages cannot be tied directly to them.

“What is the evidential value of Whatsapp messages these days? Anything can be created and deleted on social media…we don’t attach any value to Whatsapp messages,” said the apex court bench.

Despite the SC’s clear observations, a Mumbai court on October 20 rejected the bail pleas of Aryan Khan, Arbaaz Merchant and Munmun Dhamecha in the drugs-on-cruise case, relying on Aryan Khan’s Whatsapp chats. The NCB had submitted the chats in the court, which prima facie “reflected that he was indulging in illicit drugs activities” as well as “dealing in illicit drug activities for narcotic substances on a regular basis.” The court observed that the trio was part of a larger network, and drew from the Bombay High Court’s order in Showik Chakraborty case (Rhea Chakraborty’s brother) which argued that even though no contraband was found on Showik, the case of each of the accused cannot be considered in a stand-alone manner since they were all part of a conspiracy.

Also read: NCB officials visit homes of Shah Rukh Khan and Ananya Pandey

On the face of it, there are several similarities in the way Narcotic Control Bureau (NCB) handled the Rhea Chakraborty and Aryan Khan cases. Both the accused have Bollywood links and have been charged under sections of the stringent NDPS law. The NCB could not recover any contraband either from Rhea or Aryan. No immediate blood test was carried out in either case to determine consumption of drugs. Neither Aryan nor Rhea had any previous criminal antecedents attached to their names.

The NCB seems to have relied heavily upon, and in some parts, solely, on Whatsapp chats of the accused(s), to prove that they were a part of a larger conspiracy and nexus to deal and finance illicit drug trafficking. The agency argued in court on Wednesday (October 20) that this was not the first time Aryan Khan was involved in drug trafficking. “There is ample evidence in the form of Whatsapp chats of accused no.1 (Khan) with foreign national and unknown persons dealing in drugs,” said the Assistant Solicitor General, appearing on behalf of NCB, adding that the Whatsapp chats recovered by them also had a reference of hard drugs and bulk quantity with unknown persons who are suspected to be a part of an international drug racket.

This is the same argument put forth by the investigating agency in Rhea’s case. Referring to her Whatsapp chats, the NCB had then said that Rhea was an “active member of a drug syndicate” and that she used to store drugs at her house. In both cases, the NCB first detained the two suspects, accessed their mobile phones, and recovered deleted Whatsapp messages on the basis of which they were arrested later.

In Rhea’s case, the Whatsapp chats were handed over to the NCB by the Enforcement Directorate (ED), which, along with the CBI, was probing her alleged role in the suicide of actor Sushant Singh Rajput. In Aryan’s case, the role of Whatsapp chats is slightly different. The NCB had argued that Whatsapp messages were exchanged between Khan and Merchant—from whom six grams of charas was allegedly recovered by the NCB on the cruise — which showed that Khan used to purchase drugs from Merchant and his sources. The investigating agency said there was “material placed on record” i.e. Whatsapp chats, to show that Khan was in touch with some people abroad who “appeared” to be a part of an international drug network for illicit procurement of drugs.

The NCB also argued that although no contraband was found on Khan’s body, he had knowledge about the six grams of charas allegedly hidden in and recovered from Merchant’s shoe. Therefore, the NCB said in the court that Khan and Merchant were in “conscious possession” of small amount of the contraband.

Khan’s counsel argued that Whatsapp chats without a certificate of Sec 65 (b) of the Indian Evidence Act cannot be looked into, while Merchant’s lawyer questioned how the NCB got their hands on the alleged Whatsapp chats when there is no ‘panchnama’ indicating the recovery of mobile phones from Khan and Merchant.

The court went through the documents submitted by the NCB and said that both Khan and Merchant had voluntarily surrendered their mobiles to NCB officers at the time of interrogation, and hence, their Whatsapp chats were admissible.

In Aryan’s case, the NCB has told the court that celebrities are “role models” and hence must exhibit a greater degree of responsibility. In Rhea’s case, the agency had argued that celebrities should be treated in a harsher manner than others in order to set an example—something that the Bombay HC dismissed while granting bail to Rhea, stating that “everybody is equal before the law.” The HC also said that Whatsapp chats needed to be corroborated in order for them to hold water.

Also read: Five things to know about Aryan Khan drugs case

Earlier this week, the Bombay HC granted bail to a duo charged under NDPS, who was arrested by the police during a raid at a bungalow in Igatpuri (Nashik). It (the court) urged authorities to consider reformation in drug cases where the accused were young, stating that “adolescent and youth are the phases of a lifetime, where the making of irrational and impulsive decisions may be favored by some.” The arrested accused in this case were 27 years old and 34 years old respectively. Khan and Merchant both are in their early twenties.

Even the treatment meted out to Aryan and Rhea by the lower courts—by consistently denying them bail and keeping them in either judicial or police custody—bears common imagery. Khan’s appeal for bail was listed for urgent hearing at the Bombay HC on Thursday (October 21) morning after it was rejected by the NDPS court on Wednesday. The matter will now be heard in the HC next Tuesday (October 26)

Lastly, it seems like Aryan’s case is heading in the direction of Rhea’s case with the NCB targeting Bollywood actors as part of its investigation. On Thursday, after Shah Rukh Khan visited his son in the Arthur Road prison, the NCB went to Khan’s residence, “Mannat”, to carry out some paperwork. Later, it raided actor Ananya Pandey’s home and summoned her for questioning—purportedly based on WhatsApp chats between her and Aryan.