New Delhi: Congress MLA Sukhpal Khaira’s political choices appear to be inextricably linked with the progression of the drugs case that led to his arrest Thursday.
The case was filed in 2015 at Punjab’s Jalalabad Police Station. At the time, 11 people — not including Khaira — were named in the case for alleged offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the Arms Act, 1959, and the Information Technology Act, 2000.
The case reportedly stemmed from the recovery of 2kg heroin, gold biscuits, a countrymade pistol, and two Pakistani SIM cards from the accused.
In 2015, Punjab was under the Shiromani Akali Dal (SAD)-Bharatiya Janata Party (BJP) government, and Khaira was a state Congress spokesman.
Khaira was made an accused in the case in 2017 — allegedly after his name came up as the matter was investigated further.
By then, the Congress was in office in the state, and Khaira had switched to the Aam Aadmi Party (AAP), and was the Leader of the Opposition in the assembly.
Now that he has been arrested by the Punjab Police, he is in the Congress while the AAP is in power.
Khaira’s arrest from his residence in Chandigarh triggered a political slugfest between the Congress and the AAP, which are partners in the Opposition’s INDIA alliance.
While the Congress termed Khaira’s arrest “abuse of power and vengeance”, the AAP said he was made an accused in the case when the Captain Amarainder Singh-led Congress government was ruling Punjab.
Addressing a press conference, AAP Punjab spokesperson Malvinder Singh Kang said Khaira’s arrest was a “significant” development in the Bhagwant Mann government’s “war against drugs”.
The BJP also waded into the controversy, saying Khaira’s arrest amounted to “misuse of the Punjab Police”. BJP leader Manjinder Singh Sirsa said if the police felt that Khaira had a role in the crime, attempts should have been made to summon him to join the investigation.
Khaira’s arrest comes seven months after the Supreme Court — citing procedural issues — set aside a lower court’s summons to him, issued in 2017.
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What the case is
When Khaira was served the summons to join the investigation in October 2017, he had lashed out at Amarinder Singh, Congress leader Rana Gurjit Singh and SAD’s Sukhbir Singh Badal and Bikram Singh Majithia for “framing” him in the case.
The AAP leadership had remained mum on the issue, while some party MLAs demanded his resignation from the post of Leader of the Opposition.
As he was arrested Thursday — an episode streamed live by Khaira’s son Mehtab Singh on his father’s Facebook page — the Congress MLA referred to the SC order on setting aside the summons.
ThePrint went through the judicial records and found that the lower court had issued summons to him under Section 319 of the CrPC on 31 October 2017.
Under this section, if “in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed”.
On the same day, the Fazilka sessions court convicted and sentenced nine people in connection with the case (one is on the run and the other acquitted).
During the trial stage, which lasted over two years, Khaira’s name did not figure in the two chargesheets based on which the nine accused were convicted and sentenced.
On 21 September 2017, the prosecution filed an application invoking Section 319 of CrPC for summoning five additional accused, including Khaira.
The application alleged that Khaira was in regular touch with one of the accused in the case, Gurdev Singh, and spoke to him 65 times between 27 February 2015 and 8 March 2015.
“All these persons with criminal intentions were making calls to each other to avoid electronic surveillance,” the application added.
On 31 October 2017, the judge of the Fazilka court announced the conviction and sentencing of the nine accused, while also allowing the prosecution’s application to summon Khaira and the four others.
Khaira challenged the court order in the High Court of Punjab and Haryana, which dismissed the plea on 11 November 2017. He then moved the SC, where the petition was referred to a Constitution bench.
Khaira’s counsel argued in court that “when the trial is pending, the court can add an accused under Section 319 of CrPC but the moment the trial concludes and judgment is pronounced, then no proceedings remain before the court”, according to the 5 December 2022 judgment of the SC Constitution bench.
The Punjab advocate general countered this, saying that additional accused can be summoned on the day a trial is being concluded if evidence comes up that necessitates it.
The Centre’s counsel went a step further “to contend that the power under Section 319 of CrPC can be invoked at any stage even after the sentence is pronounced since the involvement of an accused may come to light at a later stage”.
However, the SC Constitution bench concluded that “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,” it added.
Based on the order of the Constitution bench, on 9 February, 2023, a bench of justices B.R. Gavai and Vikram Nath “quashed and set aside” the summons issued to Khaira.
Days later, during the Congress’ plenary session in Chhattisgarh on 25 February, Khaira tweeted, “God is great i was humbled to share dais with top @INCIndia leadership at Chhattisgarh AICC session while those who tried to finish my political career thru (sic) ED & Fazilka NDPS case were one amongst thousands present in the Pandal. Lesson-you’ll reap what you sow-Khaira.”
(Edited by Sunanda Ranjan)