Today, the Punjab and Haryana High Court approved bail for Congress leader Sukhpal Singh Khaira in a case filed under the Narcotics Drugs and Psychotropic Substances (NDPS) Act.
Justice Anoop Chitkara expressed initial satisfaction that the Congress Party Member of Legislative Assembly (MLA) was not guilty of the allegations relating to smuggling of drugs. Khaira was previously associated with the Aam Aadmi Party (AAP) before his suspension from the party in 2018. Subsequently, he resigned from AAP and subsequently became a member of the Congress party.
In a case originating from 2015, the State filed an application in 2017 under Section 319 of the Code of Criminal Procedure (CrPC) to summon Khaira as an accused. The trial court approved this application, a ruling that was subsequently affirmed by the Punjab and Haryana High Court.
In February 2023, the Supreme Court overturned the trial court's decision, citing a Constitution Bench ruling from 2022. The Constitution Bench had clarified that once a trial judge issues a sentence order, it lacks the authority to issue an order under Section 319 of the Code of Criminal Procedure (CrPC).
Even though the trial court dismissed the proceedings against Khaira in April based on the Supreme Court's ruling, it allowed the investigating agency to pursue the investigation further. This allowance would facilitate the agency in preparing a charge sheet under Section 173 of the Code of Criminal Procedure (CrPC).
As a result, in September 2023, the Director of the Bureau of Investigation formed a new Special Investigation Team (SIT) to delve into the First Information Report (FIR). In this process, Khaira and others were added as additional accused parties.
Khaira was arrested on September 28, 2023. Before the High Court, Khaira’s counsel contended that he was arrested only because he had parted ways with the Aam Aadmi Party which is now the ruling party in Punjab. Based on the arguments presented, Justice Chitkara at the outset noted that since the case involves the commercial quantity of contraband, Khaira would have to meet the stringent conditions for bail under Section 37 of the NDPS Act.
Section 37 of the NDPS Act mandates the Court to grant a hearing to the Public Prosecutor before making a decision on the bail application. This ensures that the prosecution's perspective is considered before reaching a verdict on bail in such cases.
The Court opined that satisfying the fetters of Section 37 of NDPS Act was “candling the infertile eggs”.
However, it added that the twin conditions do not create a bar for bail but only create hurdles by placing a reverse burden on the accused.
“The expression “reasonable grounds” means something more than prima facie grounds.'', the Court said.
Certainly, the Court articulated that the decision regarding bail in cases involving possession of commercial quantity under the NDPS Act would depend on the individual circumstances of each case. It emphasized that such determinations would be made based on the unique facts and details presented in each specific situation.
Considering the evidence, absence of any recovery of any incriminating evidence during Khaira’s custodial interrogation and the evidentiary value of a disclosure statement made by a co-accused, the Court said,
The Court granted Khaira bail with conditions, including surrendering any weapons.
Senior Advocate Vikram Chaudhri with Advocates Keshavam Chaudhri, Parvez Chaudhary, Hargun Sandhu, Digvijay Singh, and Rishab Tiwari represented the petitioner
Senior Advocate Harin P. Raval with Advocate General Gurminder Singh, Deputy Advocate General Luvinder Sofat and Assistant Advocate General Shiva Khurmi represented the State
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