Punjab-Haryana High Court
Sukhpal Singh Khaira vs State Of Punjab And Others on 4 January, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:000096
CRWP-9859-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRWP-9859-2023
Reserved on: 12.10.2023.
Pronounced on: 04.01.2024.
Sukhpal Singh Khaira ...Pe oner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Vikram Chaudhri, Sr. Advocate with
Mr. Keshavam Chaudhri, Advocate
Mr. Parvez Chaudhary, Advocate
Ms. Hargun Sandhu, Advocate
Mr. Digvijay Singh, Advocate and
Mr. Kunal Sharma, Advocate
for the pe oner.
Mr. Siddharth Luthra, Sr. Advocate
Mr. Gurminder Singh, AG Punjab with
Mr. Akshat Kumar, Advocate
Mr. Kushagra Raghuvanshi, Advocate
Ms. Rajni Gupta, Advocate
Mr. Saurav Verma, Addl. A.G., Punjab and
Mr. Luvinder Sofat, D.A.G., Punjab
for the respondents.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta2on Sec2ons 35 05.03.2015 Sadar Jalalabad 21, 24, 25, 27, 28, 29, 30 of Narco cs Drugs and Psychotropic Substances Act, 1985; S. 25-A of Arms Act; and Sec on 88 of IT Act, 2000
1. The pe oner, an MLA from Punjab, who had earlier been MLA twice and has remained as a Leader of the Opposi on, has come up before this Court under Ar cles 226 and 227 of the Cons tu on of India read with S. 482 CrPC, precisely seeking the following reliefs:
(a). To determine why and under what circumstances, the Special Court had permi@ed further inves ga on given the order passed by the Hon'ble Supreme Court on 09.02.2023 in Criminal Appeal No. 885 of 2019 (Annexure P).
(b). To declare the orders dated 13.04.2023 (Annexure P-14) and 03.05.2023 (Annexure P-15) is non-est, nullity in the eyes of law, without jurisdic on, and tantamount to contempt of the Hon'ble Supreme Court.1
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(c). To declare the pe oner's arrest and police remand as derogatory and viola ve of Ar cles 21 and 22 (1) & (2) of the Cons tu on of India.
(d). To quash the order dated 28.09.2023 passed by JMIC, Fazilka (Annexure P-16), whereby the pe oner was sent to custody.
2. Facts of the case are being taken from a reply dated 10.10.2023 filed by the concerned Superintendent of Police, which reads as follows: -
"[12]. That the brief background of the ma er is that case FIR No.35 dated 05.03.2015 was registered under Sec$ons 21, 24, 25, 27, 28, 29, 30 of the NDPS Act, 1985, 25 of the Arms Act, 66 of the Informa$on Technology Act, 2000 at Police Sta$on Sadar Jalalabad against 11 accused persons namely Harbans Singh, Subhash Chander, Gurdev Chand, Gurdev Singh, Manjit Singh UK, Sonia, Manjit Singh son of Satnam Singh, Anil Kumar alias Neelu, Shan$ Singh, Nirmal Singh and Kala Singh alias Kali. In this case total 1.8 Kg of psychotropic substances (Heroin) was recovered from the aforesaid accused persons. Further following arms and ammuni$on were recovered: -
(i) 1 Country made Pistol .315 Bore alongwith 2 live cartridges.
1 Revolver .32 Bore along with 25 live cartridges.
[13]. That out of the aforesaid eleven accused, Anil Kumar alias Neelu was declared Proclaimed Offender on 01.12.2015. Trial against remaining 10 accused proceeded with the Judge Special Court, Fazilka. [14]. The Pe$$oner was not arrayed as an accused in the FIR No. 35/2015 dated 05.03.2015 nor was he Chargesheeted. The Chargesheet was originally filed against 10 Accused Persons. Since the Accused Anil was absconding at the $me therefore, the trial was separated. Per$nently, even in the Chargesheet, the inves$ga$on was kept pending qua suspected persons (Trial of Accused Anil is currently at the stage of prosecu$on evidence).
[15]. Even at the $me of ini$al inves$ga$on, the connec$on to the Pe$$oner was found and the same was recorded in-
(i) Zimni No. 4 dated 08.03.2015 (REF@101)
(ii) Zimni No. 5 dated 09.03.2015 (REF @98}
[16]. A SIT was formed on 09.03.2015 to inves$gate the involvement of the Pe$$oner herein and other suspected accused and the SIT submi ed its report with clear findings against the Pe$$oner on 14.03.2016 however, the then DIG sent this report to SSP aIer 17 months ie. 07.08.2017.
Vide order No. 3227-31/Reader dated 09.03.2015 an SIT was cons$tuted by IGP/Bathinda Range, Bathinda which comprised of DIG/Ferozepur, SSP, Fazilka and SP/D, Ferozepur. The SIT clearly men$oned that Gurdev Singh, Ex Chairman used to give proceed/profits of Narco$c/Drug Trade since 1997. He used to fund the elec$ons contested by Sukhpal Singh Khaira. He indulged in trafficking of narco$c drugs and psychotropic substances as he was protected and sheltered by Sukhpal Singh Khaira. Hence, Gurdev Singh, Ex Chairman indulged in the drug business for his handlers opera$ng from U.K., under the guidance/patronage of Sukhpal Singh Khaira. When Gurdev Singh absconded in February 2015, Sukhpal Singh Khaira a empted to protect him by using his poli$cal and personal links. Apart from this cartel, 2 2 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 Sukhpal Singh Khaira and Gurdev Singh have close associa$on with Ranjit Singh alias Dara resident of Muthada, who is absconding in cases registered against him in Districts Fatehgarh Sahib and Pa$ala.
The technical details like movement and Call Detail Records and conversa$on between Gurdev Singh, Charanjit Kaur, Major Singh Bajwa and Sukhpal Singh Khaira shows nexus amongst the members of the drug cartel. The SIT recommended inves$ga$on of suspicious role of Sukhpal Singh Khaira and submi ed its report on 14.03.2016 to IGP/Bathinda Range, Bathinda who accepted this report to take further necessary ac$on in the ma er. However, DIG/Ferozepur sent this report to SSP, Fazilka on 07.08.2017 ie aIer a delay of 17 months.
[17]. That subsequently, vide order No. 5952/C dated 06.11.2017 SIT was formed by SSP, Fazilka comprising of SP/D, Fazilka, DSP/Sub Division, Jalalabad and SHO, PS Sadar Jalalabad. This SIT submi ed its report to DIG/Ferozepur on 25.06.2021 through SSP. Fazilka. However, this report was not accepted and was kept pending by DIG, Ferozepur. In this report, there is no men$on of other 9 co-accused men$oned alongwith their roles in the ini$al findings of previous SIT. This SIT did not summon or arrest the co accused including Sukhpal Singh Khaira even aIer 04 years of inves$ga$on. It did not appreciate the evidence brought on record against Sukhpal Singh Khaira in the chargesheet filed on 06.09.2015 against aforesaid 09 accused and supplementary chargesheet filed against one accused on 31.08.2019 (It is relevant to men$on here that accused Anil Kumar alias Neelu who was declared Proclaimed Offender was arrested on 16.04.2019 and chargesheet was filed against him on 31.08.2019).
Due to the incomplete report of that SIT, Departmental Ac$on has been taken against Members of that SIT, vide le er No. 3996- 3997/Crime/Inv. 5 dated 03 10.2021.
Out of the 10 accused who faced trial before the Id. Court, 09 accused were convicted except Kala Singh alias Kali, who was acqui ed by the Id. Judge Special Court, Fazilka on 31.10.2017. [18]. Per$nently, the Supplementary chargesheet filed on 31.8.2019 against the Proclaimed Offender in this case (FIR No.35), Anil Kumar @Neelu who was apprehended & during his ques$oning revealed that Ex Chairman-Gurdev Singh @ Debi told him that if he is trapped in the drug smuggling case, then Sukhpal Singh Khaira would be protec$ng them. The Inves$ga$ng Officer presen$ng this supplementary challan notes in therein that the SL.P 9063 (by Sukhpal Singh Khaira) of 2017 & 9150 (by Joga Singh) of 2017 is pending in the Supreme Court. As and when this ma er is disposed off and aIer comple$on of inves$ga$on pending before the SIT, the supplementary challan against Sukhpal Singh Khaira & Joga Singh would be presented in the appropriate Court under sec$on 173(8) CPC.
[19] Therefore, the Further inves$ga$on qua the Pe$$oner was kept pending due to the interim protec$on granted to the Pe$$oner by Supreme Court vide Order dated 01.12.2017.
[20] That during the pendency of the trial arising out of aforesaid case FIR No. 35/2015, an applica$on dated 21.09.2017 was moved under Sec$on 319 of the Code of Criminal Procedure, 1973 to summon Joga Singh, PSO of Sukhpal Singh Khaira, Sukhpal Singh Khaira, Manish, PA, Charanjit Kaur and Major Singh Bajwa.
33 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 [21]. The aforesaid applica$on was moved, inter alia, on the following grounds
(i) During inves$ga$on of the case, accused Gurdev Singh, Ex Chairman, revealed that he had family rela$ons with Sukhpal Singh Khaira. He has been told by Sukhpal Singh Khaira that if he is trapped in any case of drug trafficking he would be protected by Sukhpal Singh Khaira (Case Diary No. 04 dated 08.03.2015 recorded by SI Jaswant Singh, SHO, PS Sadar Jalalabad).
(ii) It is recorded in Case Diary No. 5 dated 09.03.2015 recorded by Sh. Ajmer Singh, DSP, Sub-Division Jalalabad that during inves$ga$on, accused Gurdev Singh revealed that he had family rela$ons with Sukhpal Singh Khaira. Accused Gurdev Singh provided funds and vehicles to Sukhpal Singh Khaira during elec$ons or whenever so required by Sukhpal Singh Khaira.
3. The other accused, from whose possession the police had ini ally recovered a massive quan ty of drugs, gold, and weapons, were prosecuted before Special Court, Fazilka. Before filing a police report under Sec on 173 Code of Criminal Procedure, 1973 [CrPC], on May 8, 2015, the pe oner had filed CWP No.8999 of 2015 in this Court, seeking an inves ga on by CBI and other reliefs. On July 14, 2016, the State informed the Court that the pe oner had no cause of ac on to maintain and con nue with this writ pe on as the pe oner was not an accused in this case, and the trial was already going on in which two witnesses had already been examined. Subsequently, on Mar 16, 2017, due to subsequent events, the pe oner withdrew the CWP, without prejudice, to approach again if the need arose.
4. The trial against ten accused persons against whom Challan had been presented commenced in the Court of Special Judge Fazilka. At the final stage of the first trial, the State moved an applica on under Sec on 319 CrPC to summon the pe oner as an accused. The State filed this applica on based on the tes monies of PW4, PW5, and PW13. On October 31, 2017, Special Judge Fazilka convicted and sentenced nine accused to various terms men oned in the judgment and acqui@ed one accused, whereas the accused, namely Anil (A-11), has already been declared a proclaimed offender. AKer pronouncing the judgment of convic on, the Sessions Judge also allowed the applica on filed by the Inves gator under Sec on 319 CrPC and issued non-bailable warrants against the pe oner. The State's counsel had supplied a photocopy of the judgment, and I have also gone through the same. Counsel for the pe oner submits that, per his informa on, all the convicts have challenged the convic on by filing separate appeals pending adjudica on.
5. The pe oner challenged the non-bailable warrants, and the order passed in the applica on under Sec on 319 CrPC by filing CRR No.4070 of 2017. On November 17, 4 4 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 2017, a Co-ordinate Bench of this Court dismissed the revision pe on but quashed non-bailable warrants.
6. Aggrieved by the dismissal of the revision pe on, the pe oner filed SLP(Crl) No.9063 of 2017 before the Hon'ble Supreme Court. On May 10, 2019, in Sukhpal Singh Khaira v. The State of Punjab, 2019 (6) SCC 638, a two-member Bench formulated a ques on of law and referred the ma@er to a Larger Bench.
7. On December 05, 2022, a Cons tu onal Bench of Hon'ble Supreme Court, In Sukhpal Singh Khaira v. The State of Punjab, decided the reference in the following terms: -
"[38]. For all the reasons stated above, we answer the ques$ons referred as hereunder.
[39]. (I) Whether the trial court has the power under Sec$on 319 CrPC for summoning addi$onal accused when the trial with respect to other co-accused has ended and the judgment of convic$on rendered on the same date before pronouncing the summoning order?
The power under Sec$on 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of convic$on of the accused. In the case of acqui al, the power should be exercised before the order of acqui al is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposi$on of sentence in the case of convic$on. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either aIer the order of acqui al or imposing sentence in the case of convic$on, the same will not be sustainable.
[40]. (II) Whether the trial court has the power under Sec$on 319 CrPC for summoning addi$onal accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
The trial court has the power to summon addi$onal accused when the trial is proceeded in respect of the absconding accused aIer securing his presence, subject to the evidence recorded in the split- up (bifurcated) trial poin$ng to the involvement of the accused 5 5 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial $ll its conclusion."
8. On February 9, 2023, a two-member Bench of Hon'ble Supreme Court passed the following order: -
"[1]. Indisputably, in the present cases the order under Sec$on 319 Cr.P.C. was passed by the learned High Court aIer the learned Trial Judge had pronounced the order of convic$on and sentence against the accused, who were being tried by the learned Trial Judge.
[2]. The order passed under Sec$on 319 Cr.P.C. against the present appellants was challenged before the learned Single Judge vide judgment dated 17th November, 2017 of the High Court by way of revision pe$$ons. The learned Single Judge rejected the revisions. Aggrieved thereby present appeals were filed.
[3]. Since the Bench hearing the ma er in this Court found that it involves an important issue, the ma ers were referred to a Larger Bench. The Cons$tu$on Bench vide its judgment dated 05.12.2022 rendered in Sukhpal Singh Khaira v. The State of Punjab, reported in (2022) 17 SCC 246, has held that once the learned Trial Judge passes an order on sentence, the Court become functus officio and it is not within its jurisdic$on to pass an order under Sec$on 319 Cr.P.C.
[4]. Indisputably, in the present case, the orders under Sec$on 319 Cr.P.C. has been passed aIer the accused, who were facing trial, were convicted and sentenced.
[5]. In view of the law laid down by the Cons$tu$on Bench in Sukhpal Singh Khaira (Supra) these appeals are allowed. The order passed by the learned Trial Judge under Sec$on 319 Cr.P.C. against the appellants as well as by the learned Single Judge of the High Court are quashed and set aside."
9. AKer this, the pe oner, as an outcome of the order dated 09.02.2023 passed by the Hon'ble Supreme Court of India, Sukhpal Singh Khaira, and his PA, Munish Kumar, filed an applica on before the Ld. Judge Special Court, Fazilka, with a prayer to drop the proceedings.
10. On April 13, 2023, the trial Court (Special Judge, Fazilka) passed the following 6 6 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 order: -
"8. Resultantly, the applica$on having been filed by the applicants stands disposed off with the following direc$ons: -
a) The proceedings of this case arising out of the summoning order dated 31.10.2017 under Sec$on 319 Cr.P.C. pronounced by learned predecessor of this Court, stand disposed without prejudice to the right of State/inves$ga$ng agency/SIT to carry out any inves$ga$ng/inquiry with regard to the involvement of the applicants and other suspects in the smuggling of drugs or to present charge sheet under Sec$on 173 Cr.PC.
b) The passports of both the applicants Sukhpal Singh Khaira and Manish Kumar be released to them forthwith against proper receipt and while retaining the photocopies of those passports on the file for further reference."
11. AKer that, on May 3, 2023, the trial Court made the following observa ons: -
"[1]. Main file has been received with the record of trial arising out of FIR No.35 dated 05.03.2015 under Sec$ons 21, 24, 25, 27, 28, 29, 30 NDPS Act, Sec$on 25/54 Arms Act and Sec$on 66 IT Act 2000 which has been perused and considered.
[2]. By way of separate detailed orders dated 13.04.2023 and 17.04.2023 respec$vely, proceedings of this case against addi$onal accused Sukhpal Singh Khaira, Manish Kumar and Joga Singh have been dropped in view of the order dated 09.02.2023 passed by Hon'ble Supreme Court of India in Criminal Appeals No. 885 and 886 of 2019 on the basis of ra$o of judgment dated 05.12.2022 of Hon'ble Supreme Court of India in $tled as Sukhpal Singh Khaira versus The State of Punjab. By way of ra$o decidendi of this judgment, it has been held by the cons$tu$onal bench of Hon'ble Supreme Court that "once the trial judge passes an order on sentence, the court become functus officio and it is not within its jurisdic$on to pass an order under sec$on 319 Cr.PC."
[3]. Admi edly, it was on the basis of ra$o decidendi of judgment in Sukhpal Singh Khaira's case (Supra), that add$onal accused Sukhpal Singh Khaira, Manish Kumar and Joga Singh have been exonerated from these proceedings vide orders as men$oned in para 1 of this order. Since, addi$onal accused Charanjit Kaur and Major Singh Bajwa were also summoned under sec$on 319 7 7 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 Cr.PC by way of same order dated 31.10.2017 vide which the above said accused Sukhpal Singh Khaira, Manish Kumar and Joga Singh were summoned as addi$onal accused, no further proceedings against addi$onal accused Charanjit Kaur and Major Singh Bajwa can be carried out on the basis of such summoning order dated 31.10.2017 in view of guiding principal laid down in Sukhpal Singh Khaira's case (supra). Hence, the proceedings of this Criminal Miscellaneous Pe$$on, so far as these arose out of the summoning order dated 31.10.2017 under Sec$on 319 Cr.PC stands dropped against addi$onal accused Charanjit Kaur and Major Singh Bajwa also. Before par$ng with this order, it is made clear that the dropping of these proceedings shall be without prejudice to the right of State/ inves$ga$ng agency/ SIT to carry out any inves$ga$on/ inquiry with regard to the involvement of these accused and other suspects in the smuggling of drugs or to present charge sheet under Sec$on 173 Cr.PC. Proceedings stands dropped accordingly. File be consigned to record room."
12. Subsequently, vide order dated September 4, 2023, the Director, Bureau of Inves ga on, Punjab, cons tuted another SIT to inves gate FIR No.35 of 2015. On September 28, 2023, vide rapat no.5, the SIT added offenses under Sec on 27-A and 27- B of NDPS Act and also arraigned Gurpreet Singh @ Gopi, Kashmir Singh @ Billa, Major Singh Bajwa, Charanjit Kaur, Sukhpal Singh Khaira-pe oner, Joga Singh (PSO of the pe oner) and Munish Kumar (PA of pe oner) as addi onal accused. The pe oner, Sukhpal Singh Khera, was arrested the same morning.
13. Feeling aggrieved, the pe oner filed the present pe on to declare the arrest illegal and in viola on of Ar cle 21 of the Cons tu on of India and Sec ons 41 & 80 CrPC, 1973. In the writ pe on, the pe oner had also challenged his arrest as void ab ini o on the grounds of illegality and viola on of Supreme Court judgments passed in this FIR itself, in which the applica on filed by the State Government under Sec on 319 CrPC for summoning the pe oner was refused by the Hon'ble Supreme Court, although it had been allowed by the Sessions court and affirmed by the High Court.
14. During the pendency of the present writ pe on, the counsel for the pe oner brought to the no ce of this Court their inten on to file a regular bail pe on, and they wanted the same to be filed before this Court for the reason that the writ pe on challenging the illegality of the arrest was being argued before this Court. AKer arguing extensively, the pe oner's counsel submi@ed that he is also seeking interim bail under 8 8 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 Sec on 482 CrPC, 1973, and he may be permi@ed to withdraw the said prayer and file a separate bail pe on under Sec on 439 CrPC, 1973, straightway to this Court. The pe oner's counsel further clarified that they would not claim any prejudice for losing an opportunity before Sessions Court by coming straightway to this Court.
15. Although Sessions Court and High Courts have concurrent bail jurisdic on, as a prac ce, the bail pe ons are ini ally filed before the Sessions Court and, aKer that, in the High Court. It is advantageous and beneficial to the accused for the reason that even if the Sessions court rejects the bail, they can s ll get an opportunity to raise the same facts and refer the same judicial precedents before the High Court, in addi on to new points, without wai ng for the change in the circumstances. On the contrary, whenever an accused files bail straightway to the High Court, they lose this second inbuilt opportunity to get their ma@er reviewed within the highest court of the said State.
16. Vide order dated Oct 11, 2023, this Court permi@ed the pe oner to file a separate pe on for bail before this Court, not rou ng it through the Sessions Court.
17. AKer the liberty granted by this Court, the pe oner had also filed a bail pe on in this Court under sec on 439 of the Code of Criminal Procedure, 1973 [CrPC].
REASONING:
18. I have heard Mr. Vikram Chaudhary, Sr. Advocate, Ld. Counsel for the pe oner, Mr. Siddharth Luthra, Sr. Advocate, and Mr. Gurminder Singh, Ld. Advocate General for the State of Punjab and other counsel for the par es at length on various dates and gone through the record. The following paragraphs will reflect the arguments and counter arguments addressed by the par es and its outcome.
19. The present FIR, in which the police arrested the pe oner on September 28, 2023, traces back to March 05, 2015. The Inves gator had received secret and excep onally reliable informa on that an interna onal drug mafia was opera ng at the Pakistan border, and one person named Harbans Singh, who owned land at the border of India and Pakistan was facilita ng the drug smuggling, taking advantage of the proximity to Pakistan border. AKer comple ng the procedural requirement, a substan al number of police officials raided the premises and recovered massive amounts of Heroin, gold, and pistols from various accused. AKer comple on of the inves ga on, the Inves gator filed a police report under Sec on 173(2) CrPC against ten accused. Since the 11th accused, Anil Kumar, could not be traced, he was men oned as a proclaimed offender. The pe oner was neither named as an accused in the FIR nor the report under Sec on 173 CrPC.
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20. During the inves ga on, co-accused Gurdev Singh (A-6) [an Ex-chairman of the Market Commi@ee, Dhilwan, and Ex-Sarpanch of Village Lakhan Ke Padde, falling in Bholath cons tuency], had disclosed his proximity to the pe oner, and the Inves gator gathered evidence of family rela ons between him and the pe oner. Accused Gurdev Singh had disclosed to the Inves gator that the pe oner had assured him of all help and protec on in case he was trapped in any drug trafficking ma@er. In return, Gurdev Singh (A-6) would provide funding to the elec ons of the pe oner and money as and when he needed it. Now, it has been conveyed on behalf of the State of Punjab that they are considering gran ng him a pardon and are exploring the op ons to make him an approver.
21. Mr. Vikram Chaudhri, the pe oner's counsel, submi@ed that without any new evidence, the State decided to arrest him despite clear observa ons of the Cons tu onal Bench of the Hon'ble Supreme Court that the evidence has been tendered in the criminal trial not be taken against the pe oner. However, the State counsel submits that aKer the comple on of the trial, the State has collected sufficient new evidence based on which they had arrested the pe oner, and an inves ga on is going on; out of 07 accused, some are on the run, and their custodial interroga on would surface more evidence connec ng their links with the interna onal cartel, Pakistani and United Kingdom.
22. Counsel for the pe oner further submi@ed that the Cons tu onal Bench of the Hon'ble Supreme Court did not grant any leave or liberty to the State of Punjab to carry out the further inves ga on, and without filing any applica on to recall such orders, the inquiry was conducted, and the pe oner was arrested. On this, State counsel submi@ed that the Cons tu onal Bench of the Hon'ble Supreme Court had observed that the evidence that was proved before the first trial would not be considered. The bare reading of the said order makes it clear that the inves ga on was not closed, and that the inten on of the Hon'ble Supreme Court would have been to base a cut order closing all inves ga ons against the pe oner. S ll, they did not do so, and as such, the State has statutory and legal rights to conduct further inves ga on and to arrest the pe oner, and such arrest is legal and within the parameters of law. The pe oner's fundamental rights have not been violated, and it is only a tac c to put pressure on the Government so that the inves gator does not file a report under Sec on 173 CrPC against the pe oner.
23. Mr. Vikram Chaudhary, Sr. Advocate, Ld. Counsel for the pe oner referred to the pe on and argued that the pe oner had been arrested because he parted ways 10 10 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 with the Aam Aadmi Party (AAP), now the ruling party in Punjab. He further stated that it is regime revenge by fabrica ng, padding, and crea ng false evidence. He further referred to por ons of the pe on to substan ate his submission. On this, Ld. Advocate General for the State of Punjab, Mr. Gurminder Singh, vehemently denied such allega ons and termed them as false, baseless, and figments of imagina ons, and further stated that FIR was registered when the present ruling party (AAP) was not even in power; as such, the allega ons are simply to divert a@en on from the pe oner's involvement in the heinous crime and his connec on with Pakistani smugglers and foreign handlers. An analysis of these submissions leads to an outcome that the allega ons and counter-allega ons need evidence, and at this stage, this Court cannot comment on the same; as such, the Court is refraining from making any comments on these arguments.
24. The pe oner's counsel's next submission is that the arrest itself was illegal and has referred to various por ons of the grounds of the writ pe on. On this, Ld. Advocate General, Punjab countered the said submission and referred explicitly to the affidavit of Sukhpal Singh Khaira dated 12.09.2016 filed in CWP No.8999 of 2015 in which he had explicitly made the following statement which reads as follows: -
"[5]. That the period of 1 year 9 months of no ac$on against the deponent has not derailed the inves$ga$on in any manner and has not caused any prejudice to anyone. The deponent is not reques ng the Hon'ble Court to restrain the Respondent-State to inves gate the ma er against him but is only beseeching the court to grant him one month me if the inves ga ng agency finally decides to arraign the deponent as an accused in the FIR. The $me is sought only for the purpose of availing legal remedies to the deponent. The State can demonstrate the nature of evidence and allega$ons as collected against the deponent at the $me of arguments while availing those legal remedies, but, if the deponent is arrested on any day all of a sudden the same shall cause serious viola$on of Ar$cle 21 of the Cons$tu$on of India. As the deponent is a poli$cal figure and elec$ons are going to be conducted in the State of Punjab within 6 months, the fear and apprehension of geTng involved in this case would seriously hamper the deponent's poli$cal campaign as required during the elec$on process. The Hon'ble High Court many a $mes before has rescued the persons situated alike as the deponent having fear of false implica$on due to poli$cal vende a."
(Emphasis supplied) 11 11 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023
25. Pe oner's counsel further submits that there is no new legal ground to proceed against Sh. Sukhpal Singh Khaira, given the judgment of the Hon'ble Supreme Court, as such, his arrest, as well as the order gran ng permission to conduct further inves ga on, i.e., Annexures P-14 & P-15, are illegal. On the other hand, State counsel argued that this argument is not correct because in the SLP filed by the pe oner tled "Sukhpal Singh Khaira vs. The State of Punjab," while deciding the reference had stated as follows:
"The trial court has the power to summon addi$onal accused when the trial is proceeded in respect of the absconding accused aIer securing his presence, subject to the evidence recorded in the split- up (bifurcated) trial poin$ng to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial $ll its conclusion."
26. Ld. Advocate General contended that the inves ga on against Anil (A-11) was going on, and while filing the police report against the ten accused, it was explicitly men oned that further inves ga on was carried out. The evidence collected during the further inves ga on, other than that which is part of the first criminal trial, has highlighted and brought to the surface that Gurdev Singh is a poli cal acquaintance and supporter of the pe oner, and they had illicit dealings. In a nutshell, the Inves gator found further evidence about the exchange of calls between Gurdev Singh (A-6), Charanjit Kaur, and Major Singh Bajwa, who was the handler of a drug cartel and pe oner. The prosecu on referred to the inves ga on conducted in this regard by Ravinder Pal Singh, who has also tes fied as PW-13 in the first session trial tled 'State of Punjab vs. Harbans Singh and others.' As such, arrest and orders Annexure P-14 & P- 15 are correct, were passed in accordance with the law, and thus are legally sustainable. On the other hand, counsel for the pe oner submits that the evidence that was adduced during the first trial has to be read in the light of the observa ons made by the Hon'ble Cons tu onal Bench (Supra), and the fact remains that the State referred to the cartel and at that me, they did not arraign the pe oner as an accused, and as such, this evidence was also within their no ce and knowledge.
27. Ld. AG referred to the reply and further submi@ed that Gurdev Singh used to give the proceeds of the drugs to Sukhpal Singh Khaira since 1997 and was funding the elec ons of Sukhpal Singh Khaira, and in return, Sukhpal Singh Khaira would assure protec on from the drug detec ons squads. Gurdev Singh was working as per the dictates of his handler opera ng from the United Kingdom. Apart from this cartel, 12 12 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 Sukhpal Singh Khaira and Gurdev Singh had close associa on with Ranjit Singh alias Dara, a resident of Muthada, who is absconding in cases registered against him in Districts Fatehgarh Sahib and Pa ala. The said Ranjit Singh @ Dara was wanted in the famous Bhola Drug case. The technical details about the movement and Call Detail Records and the conversa on between Gurdev Singh, Charanjit Kaur, Major Singh Bajwa, and Sukhpal Singh Khaira confirmed his involvement and depicted the nexus among the members of the drug cartel. The SIT recommended an inves ga on of the suspicious role of Sukhpal Singh Khaira and submi@ed its report on 14.03.2016 to IGP Bathinda. Despite such a report and its acceptance, he could successfully avoid lawful inves ga on into the crime.
28. The main argument of counsel for the pe oner is that the phone calls made between Gurdev Singh, the pe oner, etc., are done in the ordinary course of business and cannot be a@ributed as having been made for the drug trade. He submits that even if these call records are not intercepted for tapping, mere records of receiving phone calls do not disclose the conversa on. The en re evidence against the pe oner revolves around these specific phone calls, which are actually between Gurdev Singh, the pe oner, etc. Evidence about these call records was available with the Inves ga ng Agency way back in 2015. While filing the police report under Sec on 173 (2) CrPC against 10 accused, they did not name the pe oner as an accused, and this is the main categoric submission to this Court in the writ pe on that the pe oner filed. He further submits that, thus, prac cally speaking, there is no new evidence that the Inves gator has collected against the pe oner, and as such, on this ground alone, the ac on of arrest and subsequent proceedings are liable to be quashed.
29. The founda onal submission made by Ld. AG for the State of Punjab is that summoning an accused under Sec on 319 CrPC and further inves ga on by the SIT are separate and dis nct aspects of the criminal jus ce system. In the first charge sheet submi@ed by the police in this case, it was very clearly men oned that further inves ga on against the suspects is s ll underway, along with an inves ga on against the named accused absconding. AKer the arrest of absconding accused Anil Kumar @ Neelu, a chargesheet was presented against him on 31.08.2019, in which his name was men oned along with the fact that in the mean me, the court has exercised power under Sec on 319 of the CrPC based on evidence recorded in court, which was made subject ma@er of challenge and as SLP was pending, the police had reserved the right to further inves ga on and filed a supplementary chargesheet under Sec on 173 (8) of the CrPC against one of the accused, Anil. There is no bar to move an applica on under Sec on 319 of CrPC during the trial's pendency if further evidence comes up against any 13 13 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 other person or accused. On the same analogy, there is no bar on the police to inves gate further the crime against the accused who have not faced trial earlier. The trial against Anil Kumar alias Neelu is in progress with the competent court at Fazilka, and an inves ga on is ongoing. The pe oner was never put up before the ld. Trial Court for its adjudica on. I am in agreement with this argument, and there is nothing to disagree with this jurisprudence.
30. Ld. AG further submits that the inves ga on was con nuing, and it was explicitly men oned in the police report under Sec on 173 CrPC that one person was an absconder, and an inves ga on was going on. It cannot be said that the remaining would be absolved simply because prosecu on was launched against some of the accused. He further submits that the Inves ga ng Agency was previously siding with the pe oner. Despite the availability of the clinching evidence, they chose not to prosecute him as an accused. He submi@ed that crime never dies, and now the present regime, which is making all-out efforts to curb the drug menace and control corrup on in government employees, has launched all-out ini a ves against these mafias, corrupt government officials, and their supporters. Ld. Advocate General, Punjab further argued that the pe oner is not en tled to any relief solely for the reason that ini ally, at his instance and due to his clout, the Inves ga ng Agency sided with him, and now, in case this Court grants even interim relief, there is a likelihood of pe oner hampering the evidence and influencing the trial. He further submits that even per call details, the pe oner was constantly in touch with the co-accused, who operates from the United Kingdom. This, coupled with the recovery of the Pakistani SIM card, establishes an interna onal connec on, and the convic on of other accused by the Special Court establishes the involvement. He submits that the pe oner is the kingpin because he had given patronage to the mafia and has massive assets that are dispropor onate to the known source of income, corrobora ng the majority of such assets and drug money that he received as a share in helping in dealing with the interna onal drug mafia. He further submits that the fresh evidence collected by the Punjab Police is corroborated by the Enforcement Directorate, which has launched a separate prosecu on against the pe oner for money laundering and uncounted wealth.
31. The other primary submissions are the evidence against the order of the Hon'ble Supreme Court of India, whereby the order was passed by ld. The trial judge under Sec on 319 CrPC was quashed and set aside, which does not create any bar or impediment on the police/inves ga ng agency to further inves gate the case on its merits.
32. The record reveals that the pe oner has been arraigned, arrested, and 14 14 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 interrogated on the prima facia evidence of calls with the handler from UK, PSO, and PA; unexplained money that points out its source to the drug trade; and confessional statement of co-accused. Further, the evidence already collected ll the me of the pronouncement of the judgment has to be read in the light of the judgment passed by the Cons tu onal Bench of Hon'ble Supreme Court on December 05, 2022, in Sukhpal Singh Khaira vs. The State of Punjab. There is evidence of the calls exchanged between the pe oner and his PSO, PA, and the handler from the UK; the dispropor onate money for which the Enforcement Directorate has already seized; the admissible evidence under PMLA in the shape of disclosure statement, the other admissible material during such disclosure admissible under S. 27 of Indian Evidence Act, 1872, and the fresh incrimina ng evidence, and some leads during the pe oner's custodial interroga on; and the eviden ary value of a disclosure statement made by a co-accused, who has been granted pardon, and the absence of any other evidence connec ng the pe oner, has to be appreciated separately for deciding the bail. However, to declare the inves ga on as void and to disrupt the inves ga on and consequent filing of the police report, for that the parameters are en rely different.
33. An analysis of the pleadings, arguments, and discussions above, it is crystal clear that the inves ga ng agency was able to collect fresh material, which is other than the material that forms part of the first criminal trial, and that the inves ga on in the FIR was never closed, and was con nuing even aKer filing the first police report against ten accused. The Cons tu onal Bench of the Hon'ble Supreme Court had neither barred further inves ga on nor had the subsequent two-member bench of the Hon'ble Supreme Court given any clean chit to the pe oner or stopped any further inves ga on. Thus, further inves ga on and the pe oner's arrest were neither illegal nor did they violate any order men oned above of the Hon'ble Supreme Court.
34. Thus, the pe oner also fails to make a case for surviving prayers in the writ. The apprecia on of evidence collected by the inves gator aKer the first trial might be a skeleton in nature for sa sfying the records of Sec on 37 of the NDPS Act, but to declare the order passed by the Sessions Court, as well as the remand order passed by the Judicial Magistrate, is concerned; the material is sufficient.
35. It is clarified that when the prosecu on files the police report (if any), they shall do so strictly in the light of the observa ons made by the Cons tu onal Bench of Hon'ble Supreme Court in Sukhpal Singh Khaira Versus State of Punjab (Supra). It is further clarified that at the charge stage, the concerned Special Judge shall keep in mind that the evidence prohibited by the Cons tu onal Bench of the Hon'ble Supreme Court is 15 15 of 16 ::: Downloaded on - 04-01-2024 23:14:14 ::: Neutral Citation No:=2024:PHHC:000096 CRWP-9859-2023 not considered for the remaining charges. In addi on to that, the pe oner shall be at liberty to raise all the legal points at the charge stage as far as the prayers made in the present pe on are concerned, primarily for the reason that the evidence has been collected by the inves gator because even if one evidence or one fact have come which was not part of the evidence of the first trial, that alone would be sufficient to legalize the pe oner's arrest and subsequent police remand.
36. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
Pe22on dismissed. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
04.01.2024
Jyo - II/ Jyo Sharma
Whether speaking/reasoned: Yes
Whether reportable: YES.
Neutral Citation No:=2024:PHHC:000096
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