Read Order: Simerjit Kaur v. State of Punjab and Others

Monika Rahar

Chandigarh, April 23, 2022: The Punjab and Haryana High Court has recently transferred the investigation being conducted by the Amritsar Police to the Punjab Bureau of Investigation, in an NDPS Act matter against the petitioners who alleged that they had been falsely implicated based on a grudge held by one MLA on account of help extended by the petitioner to AAP candidate in Municipal Committee and Nagar Panchayat election while being on poll duty. 

While given this decision, the Court placed reliance on the Supreme Court in Babubhai vs. State of Gujarat and others, reported as 2010(12) SCC 254 wherein it was held that a vitiated investigation is the precursor for miscarriage of criminal justice and that the investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily. 

The Bench of Justice Vikas Bahl opined, 

“This Court is sanguine of the fact that a transfer of investigation is not to be done in a routine matter at the behest of the accused. However, considering the totality of the facts and circumstances noticed hereinabove, this Court is of the opinion that in order to do substantial justice and so as to ensure that the real truth comes before the Court, both the petitions deserves to be allowed and are thus, allowed and the investigation with respect to FIR… registered under Sections 21 and 29 NDPS Act at Police Station Sultanwind, District Amritsar, is directed to be transferred to the Punjab Bureau of Investigation.”

Essentially, in this case, the two petitioners were arrayed as accused in an FIR registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) at Police Station Sultanwind, District Amritsar. They approached the Court with two Section 482 Cr.P.C. petitions for seeking direction from the Court for conduct of impartial and fair investigation by an independent agency like the Crime Branch or any other agency. 

The petitioners were alleging foul play on part of the investigating agencies in conducting investigation in this case. As per the case of the petitioners, the husband of the petitioner (Varinderjit Singh @ Goldy- the accused) was working as a government teacher and thus was given charge of election duties. While being on duty, the accused received a call from one Sanjeev Kumar, who was known to the husband of the petitioner and whose wife Mrs. Rama Rani was contesting elections from Ward no. 9 of Tehsil Patti, District Tarn Taran as a candidate of the Aam Aadmi Party. 

The call was to seek help from the husband of the petitioner to identify the voters who left the ward due to shifting of their house, death, marriage etc. as the said candidate was fearing that the ruling party would use those candidates to cast bogus votes in their favour to win the elections. When the petitioner was helping the said person with such identification, the information of the same reached the candidates of the other parties who, being annoyed with the petitioner on the said account, falsely implicated the husband of the petitioner in the present case. 

It was further averred that on the fateful day when both the petitioners were entering the parking lot, a few police officials illegally detained the husband of the petitioner and Harpeet Singh from the parking compound in a car and at the said time, the police officials were in plain clothes. The petitioners were thereafter falsely implicated in the said FIR in which it was alleged that the recovery of 300 grams of heroin was effected from them and they were arrested. 

In the present case, specific allegations were made against the investigating team, i.e. the sixth to ninth respondents. It was also submitted that when the present matter came up for hearing on July 02, 2021, a coordinate Bench of the High Court directed that final report under Section 173 Cr.P.C. be not presented before the competent court. Thereafter, the two accused filed two criminal miscellaneous petitions under Section 439 Cr.P.C. for the grant of regular bail in the FIR in question in which similar allegations, as have been made in the present petition, were made. A further direction was given to the District and Sessions Judge, Amritsar, to see the CCTV footage of the parking lot and to then submit his report. 

The District and Sessions Judge, Amritsar, in pursuance of the said order, submitted his report and after considering the said report and the entire material on record, it was found that there were specific allegations against the police officials and there was a possibility of false implication in the case.

It was thus vehemently prayed that the investigation in the present FIR be transferred to any independent agency for instance, the Punjab Bureau of Investigation. It was also submitted that once the police officials in questions were found to be involved in falsely implicating the accused, then the said police officials should not be permitted to carry out the investigation in the said matter and in fact, even the same department should also not be involved in the investigation process as the colleagues of the said investigating officers, in order to justify the FIR, would proceed with a biased mind. It was also argued that justice should not only be done but should also be seen to be done. 

After considering these averments, the Court opined that it was undisputed that in response to the bail pleas of Varinderjit Singh @ Goldy and Harpreet Singh, the High Court, after considering the contentions raised by both the parties as well as the report submitted by the District and Sessions Judge, Amritsar with respect to the CCTV footage granted bail to the petitioners. 

The Court perused the bail orders and opined that specific allegations were made on behalf of the two accused that they were falsely implicated on account of Varinderjit Singh @ Goldy helping the husband of the candidate of the Aam Aadmi Party and that the entire incident depicting as to how the said Varinderjit Singh @ Goldy and Harpreet Singh were apprehended from the parking lot was also detailed.

The Court also noted that the High Court itself even compared and traced correspondence between the report submitted by the District and Sessions Judge, Amritsar with the averments made in paragraph 8 of the regular bail petition and found that there were several arguable points in favour of the petitioners, which, if proved during the course of the trial, would indicate that the petitioners have been falsely implicated in the FIR in question.

Further, after considering the evidence on record, the Court concluded that there were specific allegations leveled against the police officials who were involved in the investigation of the present FIR. The said allegations, the Court remarked, when seen in the light of the report of the District and Sessions Judge, Amritsar, cannot be ignored.

Further, on the transfer of investaigtion, the Court opined that it is a matter of settled law, as observed by the Supreme Court in Babubhai’s case (supra) that “a vitiated investigation is the precursor for miscarriage of criminal justice” and that “the investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily”.

Thus, the Court noted that in the present case, a coordinate Bench of this Court directed the final report under Section 173 Cr.P.C. to be not presented before the competent Court and resultantly, the investigation is not complete. 

In this light the Court opined that it is sanguine of the fact that a transfer of investigation is not to be done in a routine matter at the behest of the accused, however, considering the totality of the facts and circumstances noticed hereinabove, the Court opined that in order to do substantial justice and so as to ensure that the real truth comes before the Court, both the petitions deserves to be allowed and thus, the Court directed the investigation with respect to the registered under Sections 21 and 29 NDPS Act at Police Station Sultanwind, District Amritsar, to be transferred to the Punjab Bureau of Investigation.

The Court also directed that the investigating officer who was investigating into the present FIR to hand over the investigation papers/record to the new investigating agency, i.e. The Punjab Bureau of Investigation and the said agency, was directed to carry out further investigation in the said FIR, in accordance with law. 
“The Director of Punjab Bureau of Investigation would mark the present FIR to a competent investigating officer of the Punjab Bureau of Investigation and the said investigating officer would also ensure the smooth transfer of investigation from the present investigating officer to the Punjab Bureau of Investigation and thereafter, would carry out fair and thorough investigation into the said FIR, in accordance with law”, held the Court. 

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