Mumbai: Advocate Ayaz Khan who has handled Fardeen Khan and Bharti Singh’s cases is of the opinion that Aryan Khan’s being in custody for six days gave the Narcotics Control Bureau (NCB) a chance to keep investigating the case.
Speaking to ETimes, he said, in Aryan’s case, the problem is that, although the NCB filed a case initially for consumption, they slapped Sections 27, 28 and 29. Section 28 is attempt to consume, Section 29 is conspiracy to consume and Section 27 is for consumption.
But according to the charges, punishment can only be given for consumption. There is no punishment in Sections 28 and 29, the equivalent to consumption punishment. The NCB got a chance when they got Aryan’s custody. Once they got a chance, they went through his WhatsApp and then there were other things that came out, too. “Also, I guess there were witnesses in the case, too.”
He revealed how he handled things differently with Fardeen and Bharti and how his strategy resulted in both parties getting bail within a few days.
This is what Ayaz Khan told ETimes:
When I was first briefed about Fardeen Khan’s case, the first thing I did was I took the facts of the entire case. What I realised after meeting and speaking to Fardeen during a legal interview with him was that the prosecution said that he was trying to buy one gram of cocaine and Nasir Shaikh, the peddler, had more quantity. Fardeen had punched in Rs 3500 at a bank ATM to purchase that one gram. The money could not be withdrawn as the card got swallowed by the machine.
This was the point we had to work with, and Fardeen’s dad Feroz Khan told me specially, ‘We don’t want any false defence’. That’s how we took that defence forward. Although the case had intermediate quantity, Fardeen’s role was that of attempt to consume, that too just one gram and that is a bailable offence. One gram is a small quantity and the punishment in that case during those days was about 6 months or fine of Rs 10,000 or a sentence of one day to six months.
When I was first briefed about Fardeen Khan’s case, the first thing I did was I took the facts of the entire case. What I realised after meeting and speaking to Fardeen during a legal interview with him was that the prosecution said that he was trying to buy one gram of cocaine and Nasir Shaikh, the peddler, had more quantity. Fardeen had punched in Rs 3500 at a bank ATM to purchase that one gram. The money could not be withdrawn as the card got swallowed by the machine.
There were arguments and Fardeen was in NCB custody for two or three days. We immediately applied for bail and got it soon from NDPS court.
The allegation of the prosecution was, they wanted to check if there was conspiracy because about 9 grams of contraband was found on the peddler Nasir. But the finding of the judge was that, if it is written in the statement Fardeen is consuming, he should be tried for small quantity. We got him out on bail within three days.
We did not give the prosecution a chance to develop the case. Even when they had said that Nasir and Fardeen were talking, my stand was clear, if he is a consumer and is talking to the peddler, he is only talking to him for consumption and that helped our case.
After we got him out, a complaint was drafted, which was very vague stating that it was a case of 9 gms. We went back to court and said that the case against Fardeen wads for one gram. So accordingly the charges that have to be framed in his case have to be fixed for one gram.
This matter went from Sessions Court to High Court and came back to Sessions Court and we got the order in our favour as the evidence against Fardeen suggested it was a case of one gram. There were other lawyers who told Feroz Khan to deny all charges but I was convinced about Feroz Khan’s opinion that we won’t give any false defence. Also, we could not take a false defence as there was an ATM, where Fardeen had attempted to withdraw money and footage from that ATM would show that Nasir the peddler was with him.
We took the defence according to prosecution’s case that Fardeen was a consumer. Fardeen did one de-addiction course, which falls under 64A of the NDPS act. The NDPS act is a reformative act for consumers and there are reliefs under sections 64A and 39 for consumers. So, if you do a de-addiction course, the case is withdrawn against you.
We made an application with the NCB to guide us to a centre where we could do the de-addiction course but we didn’t get any reply from them. We waited for quite some time, then we ourselves signed up with a government organisation. We got the certificate and submitted it to the court and the case was withdrawn.
Our case got over in 2012 only because it travelled from the Sessions Court to High court and trials were not happening. A lot of people were in custody and Fardeen also got busy with his work. And then Feroz Khan also was not keeping well. But, strategically, there was no problem.
Drawing parallels between Fardeen Khan and Aryan Khan’s case
The only point that we can draw between Aryan’s and Fardeen’s cases is that we moved very fast for bail. The first day that Fardeen was produced in court, I filed my bail application, which didn’t happen in Aryan’s case. We filed for bail and the matter came up for hearing the next day the NCB filed a reply, we argued and we were out.
Bharti Singh and Harsh Limbachiyaa case
‘I didn’t want Bharti Singh and Harsh Limbachiyaa to go to NCB’s custody.’
