18 Jan 2024 8:22 AM GMT
The Supreme Court on Thursday (January 18) dismissed the petition filed by the State of Punjab against the bail granted to Congress MLA Sukhpal Singh Khaira in connection with a case registered under the Narcotic Drugs and Psychotropic Substances Act and the Arms Act.
A bench of Justices Bela M Trivedi and KV Viswanathan was hearing a special leave petition filed by the State of Punjab, challenging a January 4 order of the Punjab and Haryana High Court granting Khaira bail in the international drug trade case.
The hearing today largely revolved around a constitution bench verdict on the question of summoning new accused persons in a trial after the judgment is delivered. This case arose out of the summonses issued against five new people, including Khaira, on the same day as the judgment by a sessions court in this NDPS case. In December 2022, the top court, while providing crucial clarifications on the ambit of powers under Section 319 of the Code of Criminal Procedure, ruled that powers under the said provision could only be invoked before the pronouncement of the order of sentence in cases of conviction or before the order of acquittal in cases of acquittal.
"There was an earlier round of litigation when he was sought to be summoned under Section 319, even though at that stage the trial was concluded. The issue was on a technical point and it ended there," Senior Advocate Sidharth Luthra admitted at the outset. Advocate General Gurminder Singh and he were representing the Punjab government.
"When the matter ended there, how could the special judge grant permission for further investigation?" Justice Trivedi asked.
Senior Advocate PS Patwalia (briefed by Advocate-on-Record Nikhil Jain), appearing for Khaira, interjected, saying, "After his Section 319 case got decided and when the matter went back to the trial judge, immediately after this he was arrested. He challenged these orders by filing a writ petition in the high court, which was rejected. We were trying to get our special leave petition in the Supreme Court listed, but the State has bigger might."
Luthra explained that in the previous round of litigation, a stay was granted by the Supreme Court, which is why the authorities did not overreach the court's order and the investigation did not proceed further. He added, "In this case, the only issue was whether Section 319 CrPC could be invoked at the stage where the trial against the others is over. The court said that to that extent, the section could not be invoked. That is where the matter ends. But there was no consideration on the merits of the case or the material before the court."
"So nothing remains. And accordingly, they should not have gone to the special court seeking a clarification," Justice Trivedi reasoned after Luthra took the court through the constitution bench's December 2022 judgment. The judge also asked the senior counsel, "Even if Khaira was involved right from the beginning, why did you not include him in the chargesheet? He was only impleaded after the entire trial was concluded."
"There was no question of closure of further investigation. Was there further investigation pending? Yes, there was. Did we act against him? No, we did not, out of deference for this hon'ble court," Luthra argued.
Once again, Justice Trivedi repeated that with the constitution bench ruling, the matter had ended. However, the senior counsel disagreed. He insisted that quietus had been granted only to the aspect surrounding the powers of a trial court under Section 319 of the Code of Criminal Procedure, but this verdict did not preclude further investigation in the drug trade case.
Justice Trivedi replied, "Where was permission granted to the special judge? Sorry, Mr Luthra. The allegations are serious but given the circumstances, we are not inclined."
At this juncture, the senior counsel attempted to persuade the bench to cancel Khaira's bail by arguing that the high court had not taken into consideration the investigating agency's apprehensions about witness intimidation by the politician, or the subsequent evidence collected from the Enforcement Directorate, which has also registered a case against him arising out of the same set of circumstances. However, despite his fervent appeals, the bench refused to interfere with the high court order granting bail to the Congress MLA and dismissed Punjab government's SLP against this order.
Declining Luthra's request to grant a stay on the order, Justice Trivedi added, "You should have been more careful, more vigilant and filed the chargesheet at the beginning on finding that he was involved. Sorry."
Background
The legal battle stems from the January 4 decision of the Punjab and Haryana High Court granting bail to Sukhpal Singh Khaira in connection with a 2015 international drug trade case. In 2015, a first information report (FIR) was lodged against 11 persons invoking various provisions of the Narcotics and Psychotropic Substances Act, 1985, the Arms Act, 1959, and the Information Technology Act, 2000. This resulted in a 2017 ruling by a sessions court convicting nine of the accused and acquitting two. On the same day when this judgment was delivered, the trial court summoned five new people for inquiry in this case, including Khaira. After several rounds of litigation, Khaira, who was then the opposition leader in the Punjab legislative assembly, reached the Supreme Court in appeal against the summons. A constitution bench in December 2022 finally ruled that Section 319 CrPC powers must be invoked before the pronouncement of the order of sentence in cases of conviction or before the order of acquittal in cases of acquittal.
Despite this verdict, Khaira was arrested on September 28, 2023 in connection with the massive heroin trade case. He was added to additional prosecution proceedings for allegedly having connections with one of the accused, after the initial arrest of other accused persons. Khaira, however, maintained that his arrest was politically motivated, given his departure from the Aam Aadmi Party (AAP), which is now the ruling party in Punjab. While granting him bail, the high court observed that Khaira "cannot be said to be prima facie guilty of any allegations." Justice Anoop Chitkara, presiding over the case, emphasised that satisfying the stringent conditions of Section 37 of the NDPS Act is comparable to "candling the infertile eggs" The court must be convinced that the accused is not likely to commit any offence while on bail and that there are reasonable grounds to believe they are not guilty. In its order, the single-judge bench noted -
"Both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the public prosecutor, enabling them to take a stand on the bail application. The second stipulation is that the court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such an offence and is not likely to commit any offence while on bail. If either of these conditions is not met, the bar on granting bail operates."
Despite the January 4 bail order, Khaira faced fresh charges and subsequent arrest in another case filed by the wife of a key witness in the 2015 drugs case, accusing him of criminal intimidation. However, he secured bail in the second case from a Kapurthala court on January 15.
Case Details
State of Punjab v. Sukhpal Singh Khaira | Special Leave Petition (Criminal) No. 529 of 2024