MUMBAI: In an internal report, the NCB's SIT has faulted the investigation process in the drugs case, saying Aryan Khan's mobile phone was "voluntarily handed over by him" but it "was not followed by formal seizure procedure".
The report noted,"It is strange to note that in spite of clear cut denial by Arbaaz (Merchant), regarding involvement of Aryan in the procurement and possession of drugs from him, the investigating officer started looking at WhatsApp chats of Aryan without even formally seizing the mobile phone of Aryan."
Courts generally lenient with persons from whom drugs not recovered: SIT
While the SIT's chargesheet submitted on Friday dropped Aryan Khan and five others as accused in the drugs case, Arbaaz Merchant is among the 14 chargesheeted.
"Courts in general are very lenient with persons from whom drugs are not recovered and against whom there is no cogent evidence. It may be relevant to mention here that courts sometimes cast aspersions on the motives of investigating officers if courts believe that the investigating was motivated," the report said.
The report noted in a second voluntary statement of Merchant given before the investigating officer, he stated Khan was aware that he (Merchant) was an occasional consumer. Merchant was also quoted as saying hence, Aryan told him not to carry any hash to the cruise as NCB was very active and they (Merchant and Khan) would be in trouble. "In none of his statements, Arbaaz Merchant from whom the drug was recovered states that drug recovered was meant for Aryan, or Aryan was involved in any way in procuring the recovered drugs," the report said.
It also cited the statement of one of the two independent witnesses present at the time of Khan and Merchant's search. "Prabhakar (Sail) who died recently, stated in his statement recorded on November 11, 2021 that he was asked by Kiran Gosavi (another panch witness) who was present at the time of search to sign on blank papers and he did not witness any drug recovery," it said.
Referring to the panchanama drawn after the search and seizure at the cruise terminal, the report said it mentioned Khan's mobile phone was "voluntarily handed over by him to the investigating officer".
"It is to be noted that such handing over was not followed by formal seizure procedure as laid down in the law," the report said. It also alluded to various WhatsApp chats allegedly recovered from the phone and witnesses and accused who were asked to join the investigations based on the contents , treating the chats as "primary source of evidence".
The report said the Supreme Court has time and again questioned the evidentiary value of WhatsApp chats. "Our excessive reliance on WhatsApp messages will be severely counterproductive during trial of the case, considering the fact integrity of data extracted from the Aryan's phone is questionable as there is no seizure memo...," the report said.
