THAT THE NARCOTICS Control Bureau gave a clean chit to Aryan Khan in the drugs-on-cruise case on May 27 has severely damaged the agency’s image. Aryan, the son of actor Shah Rukh Khan, had spent 26 days in jail last year. And though there has been a course correction—charges against six persons have been dropped—accountability, or the lack of it, is the elephant in the room.
The Supreme Court has repeatedly advised law enforcement agencies to understand the distinction between having the powers to arrest someone and using them. Law enforcement agencies can only rush to arrest someone if there is reasonable evidence to believe that the accused would obstruct the regular course of collecting further evidence, is a habitual offender who may commit a similar offence or would abscond. On the other hand, if police officers are abusing the powers of arrest, they should be held accountable, too.
The NCB, in its internal inquiry, has chastised its own unit for procedural and investigation lapses that left many in the bureau red-faced. Indian Revenue Service officer Sameer Wankhede was heading the NCB’s Mumbai unit when it arrested several people in the case, including Aryan. In the internal report, which THE WEEK has seen, the NCB found the evidence collected “questionable, motivated and judicially weak”. Reads the report: “Though there were 20 accused in this case, for some reason or the other, the investigation revolved around Aryan Khan.”
Former Rajya Sabha member and criminal lawyer Majeed Memon said the NCB has informed the NDPS (National Drugs and Psychotropic Substances Act) court that there was no evidence against Aryan and five others. “This raises a curious question,” he said. “Did any evidence exist against Aryan when he was arrested? If yes, did it evaporate into thin air? The act of opposing the bail resulted in an innocent languishing in jail for 26 days.”
Last October, the NCB had received information that Aryan and others were going on the cruise liner Cordelia on October 2 from Mumbai Port. The information said that these people would participate in an event as guests and would be carrying drugs, concealing them in their baggage, clothes and accessories. The NCB team reached the spot and recovered six grams of charas from Arbaaz Merchant. Aryan was travelling with Merchant, but nothing was found on him. “Arbaaz accepted that he kept charas inside his shoes, but did not say that the drug was meant for any other person, including Aryan,” noted the NCB. Merchant is one of the 14 accused in the NCB charge-sheet.
The NCB inquiry is also looking into how witnesses that Wankhede’s team identified on the spot were allegedly asked to sign on blank papers, even though they did not see any drug recovery. “Despite denial by Arbaaz regarding the involvement of Aryan... the investigating officer started looking at WhatsApp chats of Aryan without formally seizing the phone,” said the report.
The data extraction from Aryan’s mobile reportedly threw up various chats with different people alluding to consumption of weed, hashish, etc. But the NCB’s special investigation team, looking into the lapses in the case, alluded to several Supreme Court rulings to say that WhatsApp chats could not be treated as a primary source of evidence.
The bigger blunder, found the inquiry, was that Aryan was slapped with charges of possession and consumption of drugs. A key element of the NDPS Act is the “doctrine of conscious possession”, which defines the offence as directly possessing the drug or carrying it at the behest of the consumer or drug dealer who wants to evade liability.
Niharika Karanjawala, part of Aryan’s legal team in Mumbai, said there was incorrect application of this principle as the NCB agreed that no drug was found on him. The internal report also admitted that the NCB had no proof that Aryan was medically examined for consumption of any drugs. “There are problems in the system we need to address so that this does not happen again in other cases,” said senior advocate Satish Maneshinde, who represented Aryan. “Despite pointing out all the lacunae in investigation, they kept him in custody for 26 days denying bail.”
Said former NCB director general B.V. Kumar: “The NCB’s own charter of functions mandates the agency to investigate commercial quantity of drugs that are part of an international drug cartel.” Given the recent large drug hauls, the latest being the one at Mundra port in Gujarat, it is high time the NCB gears itself for its responsibilities, he added. Instead, the bureau seems to have zeroed in on Bollywood, starting with the case filed against Rhea Chakraborty in 2020 after the death of actor Sushant Singh Rajput.
The shoddy investigation in the Aryan Khan case had prompted the NCB to transfer Wankhede out of the bureau. After the internal inquiry, the Centre stepped in by transferring him to the office of Directorate General of Taxpayers’ Services in Chennai. Too little too late? “The NCB has instituted a vigilance inquiry and investigation,” NCB Director General S.N. Pradhan told THE WEEK. “We have done due diligence, after the lapses were found, without anyone telling us to do so. If the fingers point conclusively towards any officials and there is incriminating evidence to support it, we will take strict action.”
The NCB has said that its excessive reliance on WhatsApp messages will be severely counterproductive during trials and has warned its field units against such practices. A strong directive has also gone to all NCB offices across the country to focus only on “cases with international linkages involving commercial quantity of drugs”.
The biggest directive involves investigation. “If the NCB finds in its preliminary inquiry that the NDPS case involves a local drug cartel, it will hand over the case to the state police,” said Pradhan. “When the bureau goes after the entire case, it creates a problem.”
The NCB seems to have learnt some hard lessons, but Wankhede is fighting back. “The zonal director is not the only one who is involved in an operation,” he told THE WEEK. “Also, the zonal director is not the arresting authority, it is the investigating officer. The public is with me. People know the facts. I know I have done no wrong. I followed the NDPS Act in letter and spirit.”
He also questioned why only his name has cropped up in the case. “There have been several instances when the medical examinations have not been carried out by the Delhi team as well,” he said. “If the investigation was not done [properly], why are 14 others charge-sheeted in the case?”
Along with the NCB and Bollywood, there was politics around the case, too. Maharashtra Minister and NCP leader Nawab Malik and Wankhede had exchanged allegations of wrongdoing; the state government had slammed Wankhede for “framing” Aryan; the Shiv Sena called it an attempt to “ruin a young man’s life”; a Congress leader called it an effort to discredit Mumbai and Bollywood; and the BJP remained largely silent.
With the clean chit, many people in the state’s political circles say that Malik has won. He is, however, currently under the Enforcement Directorate scanner in a money laundering case.
All said and done, not only will it take time for the NCB to resurrect its damaged reputation, but the increased federal mistrust generated by the case will also take time to fade away.
—With Pooja Biraia Jaiswal