Senior lawyers have hit out at the government’s claim that Shah Rukh Khan’s son Aryan had “conscious possession” of drugs because his friend, Arbaaz Merchant, was carrying a small quantity with him when they were arrested.

"What is conscious possession? There is nothing like that. This is all a play of words,” says senior well-known defence lawyer Rebecca Mammen John.

The two friends were arrested at a terminal when they were about to go on a cruise ship party. Khan, Merchant, and several others were detained under laws “related to possession, consumption and sale of illegal substances.” The charges against Khan include purchase, possession and use of banned substances, the Narcotics Control Board (NCB) has said.

A special court in Mumbai on Wednesday rejected Khan’s bail application after the NCB argued before the court that he was in “conscious possession” of illegal drugs, despite the fact that he had nothing on him when he was arrested. The NCB built its case on the fact that Merchant had charas in his shoe and that the accused allegedly admitted to investigators that they intended to use the drug for “consumption and enjoyment.”

“There is no such thing as a vicarious liability in criminal law,” adds another lawyer, pointing out that the government would have to add the charge of criminal conspiracy under Section 120 of the Indian Penal Code.

“Even for conspiracy, the law in India is that it must be based on verifiable, cogent evidence. You can’t have a fairytale and say, ‘This is a conspiracy,’” says John.

“Although no possession is found from the accused number 1, 6gm of charas was found from accused number 2 (Merchant) of which Aryan had the knowledge and thus it can be said that it was in conscious possession of both the accused,” the judge said in a detailed order.

The court also took note of WhatsApp messages between Khan and Merchant and said: “Perusal of Whatsapp chats reveals that there are chats of accused number 1 (Khan) about drugs with unknown persons.”

The court extended the judicial custody of Khan, Merchant and another friend, Munmun Dhamecha, till October 30. The case was heard before the special court of sessions under the Narcotic Drugs and Psychotropic Act (NDPS Act).

Aryan’s appeal to the Bombay High Court is scheduled to be heard on October 26.

Earlier, the Additional Chief Metropolitan Magistrate R. M. Nerlikar had rejected the bail application by the three on the grounds that only the NDPS special court was authorised to hear the plea.

The amount of charas allegedly involved is of a “minuscule quantity''. The Bombay High Court has just released somebody on bail who was in possession of something like 400gm. That is a reported judgement,” said Dushyant Dave, a senior lawyer.

Normally any quantity of charas below 100 gm is considered a small quantity, lawyers said.

“A grave injustice is being done,” Dave said. “You’re taking away this young boy’s liberty for the last 18 days for no reason whatsoever. Who can compensate for it? How is his mind? How is his psyche? It’s really wrong. I really feel this is not the way we should function. Every constitutional right of this young man has been violated by the state,” he said.

The lawyers said text messages may be considered as evidence during a trial but not in a bail hearing. “While opposing bail they have improved their story again and again. That’s not permissible,” one lawyer noted. “On the first day, the question is whether his arrest was legal or not. On the day he was arrested October 2, the arrest was absolutely unconstitutional, forget illegal,” the lawyer said.

“Your liberty can be deprived under Article 21 only by following the procedure established by law. You can’t just pick up people. The magistrate the day he was produced should have released him straight away,” the lawyer said. The magistrate should have said, “‘What is this? There is nothing on him. And he is not a criminal. He has never been involved in criminal activity in the past.’” the lawyer said.

Khan’s lawyer noted in the initial bail application that the punishment for possession of such a small quantity of charas would be a maximum six months imprisonment or fine, and that section 64A of NDPS Act allows for immunity from prosecution and bail ought to be granted.

The court on Wednesday said there was preliminary evidence to suggest that Khan was part of a “larger network” involving foreign nationals and drug dealers who appeared to be part of an international drug network and that granting bail would hamper the investigation.

A team from the NCB went to Shah Rukh Khan’s Mumbai house on Thursday for what they told reporters was “paperwork”. The team told reporters their visit was “not a search or a raid”.

Crucially, there’s no concept of ‘conscious possession’ in criminal law and even the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) under which the case is being tried, does not mention it.

But the courts have, in different judgements, in India found it necessary to look at the circumstances of each case, to figure out whether, if two or more people are together, a case of ‘conscious possession’ can be made out.

For instance, if two or more people are in a car carrying a large quantity of drugs can all the people be said to have “conscious possession” of the narcotics or can only one person be charged?

Section 35 of the NDPS Act says there can be a presumption of a “culpable mental state”. That then pushes the onus of proving his or her innocence onto the accused person.

Crucially, however, Section 35 (2) adds firmly that, “A fact is said to be proved only when the court believes it to exist beyond a reasonable doubt.” It adds firmly: “And not merely when its existence is established by a preponderance of probability.”

In other words, the court can make a presumption but it must be shown to be backed by extremely strong evidence, “beyond a reasonable doubt”.

“Although no possession is found from the accused number 1 (Khan), six gm of charas was found from accused number 2 (Merchant) of which Aryan had the knowledge and thus it can be said that it was in conscious possession of both the accused,” the judge said in the detailed order.