‘Fardeen was out on bail within three days’
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 The money could not be withdrawn as the card got swallowed by the machine.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.
It was a small offence and there was a new notification that quantity up to 2 gms was considered small quantity. Looking at the circumstances of the case we took the defence that it is the prosecution’s case. Fardeen was taking one gram of cocaine, which is small quantity. We want bail in such cases, you cannot keep them in jail although the prosecution argued that Fardeen was consuming drugs for a really long time, but my defence was, if he has been consuming drugs for a long time, even then he still remains a consumer.
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.
‘The NCB got a chance to keep investigating the case because Aryan was in custody for 6 days’
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, equivalent of 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.
They got a chance to keep investigating the case because he remained in custody for six days. This gave the NCB a lot of time and now they are saying in court, when Aryan was abroad he was talking to some peddlers. It also depends what statement has Aryan has given to them or what statement the NCB has knocked out from him. That statement is not admissible in court but the NCB gets the right to investigate. 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.
‘I didnt want Bharti Singh and Harsh Limbachiyaa to go to NCB’s custody’
In Bharti Singh and her husband Harsh Limbachiyaa’s case the NCB found 80 gms of contraband in their office and home. It was much more than what Aryan’s friend Arbaaz Merchant had on him. What I did in their case as well was that I did not allow them to go to NCB custody. They were produced in court on Sunday, I immediately applied for jail custody, although the NCB wanted to take custody. Not for Bharti but they were insisting on Harsh’s custody. They could’ve investigated a lot through Harsh, so I made sure I got them jail custody on the first day, so that they are out of NCB custody. Getting them into JC meant we could get bail the next day, now the case is pending. I didn’t want either of them in NCB custody, because you don’t know what angles can open up in the investigation. Sometimes you can fabricate evidence, sometimes you can plant evidence, sometimes you can knockout statements. Right or wrong can only be proved after the trial.