Punjab and Haryana High Court grants bail to Congress MLA Sukhpal Singh Khaira in NDPS case

The Punjab and Haryana High Court on Thursday granted bail to Congress leader Sukhpal Singh Khaira in a case under the Narcotics Drugs and Psychotropic Substances (NDPS) Act [Sukhpal Singh Khaira v. State of Punjab].Justice Anoop Chitkara recorded a prima facie satisfaction that the Congress party Member of Legislative Assembly (MLA) was not guilty of the allegations relating to smuggling of drugs.“The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions,” the Court said.Khaira was earlier a leader of the Aam Aadmi Party (AAP) before he was suspended from the party in 2018. He later resigned from AAP and joined the Congress party.In the case dating back to 2015, the State had moved an application in 2017 under Section 319 of Code of Criminal Procedure (CrPC) to summon Khaira as an accused. The application was allowed and the decision of the trial court was later upheld by the Punjab and Haryana High Court . .The Supreme Court in February 2023 set aside the trial court order, taking note of the fact that a Constitution Bench in 2022 held that once the trial judge passes an order of sentence, it does not have the power to pass an order under Section 319 CrPC.Though the trial court in April dropped the proceedings against Khaira on the basis of the top court’s ruling, it permitted the investigating agency to continue with the probe to enable them to file a chargesheet under Section 173 CrPC. Consequently, the Director of Bureau of Investigation in September 2023 constituted another SIT to investigate the FIR and arraigned Khaira and others as additional accused. 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. .Considering the submissions, 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 requires the Court to provide an opportunity of hearing to the Public Prosecutor before a decision in the bail application. It also states that the Court must satisfy itself that reasonable grounds exist for believing that the accused is neither guilty of the offence nor likely to commit the offence while on bail. 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. It contemplates substantial probable causes for believing the accused is not guilty of the alleged offence. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again,” the bench said..Thus, the Court reasoned that the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts.Considering the record, the Court noted that Khaira was made an accused on the basis of calls with “handler from UK”, his Personal Security Officer (PSA) and Personal Assistant (PA), unexplained money and confessional statement of co-accused recorded after the decision on prosecution’s application under Section 319 CrPC.In this backdrop, the Court opined that it cannot take into consideration the evidence collected and produced before the trial court “till the decision of application under Section 319 CrPC.” However, it clarified the evidence collected after the decision can be taken into consideration for deciding the bail application. .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,“It can be inferred at this stage that for the purpose of satisfying the rigors of section 37 of NDPS Act, the petitioner cannot be said to be prima facie guilty for any allegations, and its most likely effect on the final outcome would be sufficient for satisfaction of conditions of Section 37 of NDPS Act.” Accordingly, the Court granted bail to Khaira subject to several terms and conditions including surrender of any weapons..Senior Advocate Vikram Chaudhri with Advocates Keshavam Chaudhri, Parvez Chaudhary, Hargun Sandhu, Digvijay Singh, and Rishab Tiwari represented the petitionerSenior Advocate Harin P. Raval with Advocate General Gurminder Singh, Deputy Advocate General Luvinder Sofat and Assistant Advocate General Shiva Khurmi represented the State[Read Order]