AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 1548
X X X X Extracts X X X X
X X X X Extracts X X X X
....ead with S. 482 CrPC, precisely seeking the following reliefs: (a). To determine why and under what circumstances, the Special Court had permitted further investigation 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 jurisdiction, and tantamount to contempt of the Hon'ble Supreme Court. (c). To declare the petitioner's arrest and police remand as derogatory and violative of Articles 21 and 22 (1) & (2) of the Constitution of India. (d). To quash the order dated 28.09.2023 passed by JMIC, Fazilka (Annexure P-16), whereby the petitioner 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 matter is that case FIR No.35 dated 05.03.2015 was registered under Sections 21, 24, 25, 27, 28, 29, 30 of the NDPS Act, 1985, 25 of the Arms Act, 66 of the Information Technology Act, 2000 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rdev Singh absconded in February 2015, Sukhpal Singh Khaira attempted to protect him by using his political and personal links. Apart from this cartel, Sukhpal Singh Khaira and Gurdev Singh have close association with Ranjit Singh alias Dara resident of Muthada, who is absconding in cases registered against him in Districts Fatehgarh Sahib and Patiala. The technical details like movement and Call Detail Records and conversation between Gurdev Singh, Charanjit Kaur, Major Singh Bajwa and Sukhpal Singh Khaira shows nexus amongst the members of the drug cartel. The SIT recommended investigation of suspicious role of Sukhpal Singh Khaira and submitted its report on 14.03.2016 to IGP/Bathinda Range, Bathinda who accepted this report to take further necessary action in the matter. However, DIG/Ferozepur sent this report to SSP, Fazilka on 07.08.2017 ie after 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 submitted its report to DIG/Ferozepur on 25.06.2021 through SSP. Fazilka. However, this report was not ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....resaid application was moved, inter alia, on the following grounds (i) During investigation of the case, accused Gurdev Singh, Ex Chairman, revealed that he had family relations 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 investigation, accused Gurdev Singh revealed that he had family relations with Sukhpal Singh Khaira. Accused Gurdev Singh provided funds and vehicles to Sukhpal Singh Khaira during elections or whenever so required by Sukhpal Singh Khaira. 3. The other accused, from whose possession the police had initially recovered a massive quantity of drugs, gold, and weapons, were prosecuted before Special Court, Fazilka. Before filing a police report under Section 173 Code of Criminal Procedure, 1973 [CrPC], on May 8, 2015, the petitioner had filed CWP No.8999 of 2015 in this Court, seeking an investigation by CBI and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as the power under Section 319 CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. 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 after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable. [40]. (II) Whether the trial court has the power under Section 319 CrPC for summoning additional 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....April 13, 2023, the trial Court (Special Judge, Fazilka) passed the following order: - "8. Resultantly, the application having been filed by the applicants stands disposed off with the following directions: - a) The proceedings of this case arising out of the summoning order dated 31.10.2017 under Section 319 Cr. P.C. pronounced by learned predecessor of this Court, stand disposed without prejudice to the right of State/investigating agency/SIT to carry out any investigating/inquiry with regard to the involvement of the applicants and other suspects in the smuggling of drugs or to present charge sheet under Section 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. After that, on May 3, 2023, the trial Court made the following observations: - "[1]. Main file has been received with the record of trial arising out of FIR No.35 dated 05.03.2015 under Sections 21, 24, 25, 27, 28, 29, 30 NDPS Act, Section 25/54 Arms Act and Section 66 IT Act 2000 which has been per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estigate FIR No.35 of 2015. On September 28, 2023, vide rapat no.5, the SIT added offenses under Section 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-petitioner, Joga Singh (PSO of the petitioner) and Munish Kumar (PA of petitioner) as additional accused. The petitioner, Sukhpal Singh Khera, was arrested the same morning. 13. Feeling aggrieved, the petitioner filed the present petition to declare the arrest illegal and in violation of Article 21 of the Constitution of India and Sections 41 & 80 CrPC, 1973. In the writ petition, the petitioner had also challenged his arrest as void ab initio on the grounds of illegality and violation of Supreme Court judgments passed in this FIR itself, in which the application filed by the State Government under Section 319 CrPC for summoning the petitioner 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 petition, the counsel for the petitioner brought to the notice of this Court their intention to file a regular bail ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....who owned land at the border of India and Pakistan was facilitating the drug smuggling, taking advantage of the proximity to Pakistan border. After completing the procedural requirement, a substantial number of police officials raided the premises and recovered massive amounts of Heroin, gold, and pistols from various accused. After completion of the investigation, the Investigator filed a police report under Section 173(2) CrPC against ten accused. Since the 11th accused, Anil Kumar, could not be traced, he was mentioned as a proclaimed offender. The petitioner was neither named as an accused in the FIR nor the report under Section 173 CrPC. 20. During the investigation, co-accused Gurdev Singh (A-6) [an Ex-chairman of the Market Committee, Dhilwan, and Ex-Sarpanch of Village Lakhan Ke Padde, falling in Bholath constituency], had disclosed his proximity to the petitioner, and the Investigator gathered evidence of family relations between him and the petitioner. Accused Gurdev Singh had disclosed to the Investigator that the petitioner had assured him of all help and protection in case he was trapped in any drug trafficking matter. In return, Gurdev Singh (A-6) would provide fun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fabricating, padding, and creating false evidence. He further referred to portions of the petition to substantiate his submission. On this, Ld. Advocate General for the State of Punjab, Mr. Gurminder Singh, vehemently denied such allegations and termed them as false, baseless, and figments of imaginations, and further stated that FIR was registered when the present ruling party (AAP) was not even in power; as such, the allegations are simply to divert attention from the petitioner's involvement in the heinous crime and his connection with Pakistani smugglers and foreign handlers. An analysis of these submissions leads to an outcome that the allegations and counter-allegations 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 petitioner's counsel's next submission is that the arrest itself was illegal and has referred to various portions of the grounds of the writ petition. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Ld. Advocate General contended that the investigation against Anil (A-11) was going on, and while filing the police report against the ten accused, it was explicitly mentioned that further investigation was carried out. The evidence collected during the further investigation, other than that which is part of the first criminal trial, has highlighted and brought to the surface that Gurdev Singh is a political acquaintance and supporter of the petitioner, and they had illicit dealings. In a nutshell, the Investigator 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 petitioner. The prosecution referred to the investigation conducted in this regard by Ravinder Pal Singh, who has also testified as PW-13 in the first session trial titled '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 petitioner submits that the evidence that was adduced during the first trial has to be read in the light of the observat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Investigator has collected against the petitioner, and as such, on this ground alone, the action of arrest and subsequent proceedings are liable to be quashed. 29. The foundational submission made by Ld. AG for the State of Punjab is that summoning an accused under Section 319 CrPC and further investigation by the SIT are separate and distinct aspects of the criminal justice system. In the first charge sheet submitted by the police in this case, it was very clearly mentioned that further investigation against the suspects is still underway, along with an investigation against the named accused absconding. After the arrest of absconding accused Anil Kumar @ Neelu, a chargesheet was presented against him on 31.08.2019, in which his name was mentioned along with the fact that in the meantime, the court has exercised power under Section 319 of the CrPC based on evidence recorded in court, which was made subject matter of challenge and as SLP was pending, the police had reserved the right to further investigation and filed a supplementary chargesheet under Section 173 (8) of the CrPC against one of the accused, Anil. There is no bar to move an application under Section 319 of CrPC du....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jab Police is corroborated by the Enforcement Directorate, which has launched a separate prosecution against the petitioner 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 Section 319 CrPC was quashed and set aside, which does not create any bar or impediment on the police/investigating agency to further investigate the case on its merits. 32. The record reveals that the petitioner has been arraigned, arrested, and 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 till the time of the pronouncement of the judgment has to be read in the light of the judgment passed by the Constitutional 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 petitioner and his PSO, PA, and the handler from the UK; the disproportionate money for whic....