STATE OF PUNJAB versus GURNAM @ GAMA ETC.

(1) The appellant-State of Punjab is before this Court impugning the judgment of the High Court by which the criminal appeals filed by the respondents were allowed and the judgment of the Trial Court convicting the respondents was set aside. It relied upon the judgment of this Court in the case of Mohan Lal v. State of Punjab wherein it was held that fair investigation, which is the foundation of fair trial, postulates that the informant and investigator must not

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be the same person. (2) We may analyze the facts in brief. A secret information was received on 20th September, 2009 that poppy husk was being transported in a truck. A truck bearing registration No.PIX 0146 was stopped. Gurnam Singh alias Gama was found to be sitting on the stack of bags in cargo portion of the truck, while Jaswinder Singh was driving the truck. Both are the respondents in these two appeals. On search, 750 kilograms of poppy husk was found along with two motorcycles. First Information Report (FIR) No.221 of 2009 was registered. After trial, the respondents were convicted and vide judgment dated 11th December, 2010, they were directed to undergo RI for a period of 12 years and to pay a fine of ₹ 1,00,000/-

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(Rupees one lakh) each. (3) Aggrieved against the judgment of the Trial Court, the respondents preferred Criminal Appeal Nos.D-12-DB of 2011 and D-786-DB-2011 before the High Court. When the appeals were taken up for hearing, relying upon the judgment of this Court in the case of Mohan Lal’s case (supra) and without discussing the merits of the controversy, the same were allowed. The conviction of the respondents was set aside. (4) The aforesaid common judgment of the High Court is under challenge

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before this Court by the appellant-State of Punjab. (5) Learned counsel for the appellant submitted that after the judgment of this Court in Mohan Lal’s case (supra), in the case of Varinder Kumar v. State of H.P. , a three Judge Bench of this Court clarified the position, as was held in Mohan Lal’s case (supra), that all pending criminal prosecution, trials and appeals prior to the law laid down in Mohan Lal’s case (supra) shall continue to be governed by the individual facts of the case. In the case in hand, the appeals were pending before the High Court prior to the law laid down in Mohan Lal’s case (supra). In fact, the appeals were decided on 11th December, 2018 i.e. after the aforesaid judgment was delivered on

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16th August, 2018. (6) She has further referred to a Constitution Bench judgment of this Court in the case of Mukesh Singh v. State (Narcotics Branch of Delhi) , delivered on 31st August, 2020, reference was made to a larger Bench regarding correctness of the judgment of this Court in Mohan Lal’s case (supra). The opinion expressed by the Constitution Bench of this Court was that there is no reason to question the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant had investigated the case. The submission is that in the case in hand, the acquittal by the High Court was solely on the ground that investigator and the prosecutor

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was the same person. (7) Referring to the credentials of the respondents, learned counsel for the appellant has produced a list of cases in which the respondent (Gurnam @ Gama) in Criminal Appeal No.2836 of 2025 was involved. In some of them, he was convicted, whereas in some, he was acquitted. Trial in few cases is still pending. It was argued that there were two FIRs against Gurnam @ Gama prior to the registration of the FIR in question whereas 11 FIRs were registered after that, out of which 7 were under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) whereas 4 were under other different statutes such as Indian Penal Code, 1860 and the Punjab Good Conduct Prisons Temporary Release Act, 1962. He was convicted in 5 FIRs, acquitted in 3 and trial in 2 FIRs is still pending. From the list, it is evident that 2 FIRs in which the trial is pending were in fact registered after the acquittal in the case in question. Both are under the NDPS Act. The list as furnished by her is extracted below: CRIMINAL ANTECEDENTS OF THE RESPONDENT – GURNAM @ GAMA S.No. FIR Details Relevant Recovery Status

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Sections

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FIR 467 dated 15 of NDPS - - 01.12.2003 at PS Act, 1985 Jhajjar, Haryana

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FIR 75 dated 15 of NDPS 69 Kg Poppy Acquitted on 06.05.2008 at PS Act, 1985 Husk 30.11.2010 Noor Mehal District Jalandhar, Punjab

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FIR 221 dated 15 of NDPS 730 Kg Convicted on 20.09.2009 at PS act, 1985 Poppy Husk 11.12.2010 Division 08, District by Judge Jalandhar Punjab Special Court, Jalandhar, Acquitted and released on 11.12.2018 by Hon’ble High Court

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FIR 16 dated 15 of NDPS 240 Kg Acquitted on 18.02.2012 at PS act, 1985 Poppy Husk 09.11.2015 Noor Mehal District Jalandhar Punjab

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FIR 95 dated 8(2), 9 - Convicted on 22.12.2012 at PS Punjab Good 22.10.2014 Noor Mehal District Conduct Jalandhar Punjab Prisons act Temporary Release Act,

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FIR 166 dated 15 of NDPS 1200 Kg Convicgted on 20.06.2013 at PS act, 1985 Poopy Husk 28.07.2016 Phguillaur District Jalandhar Punjab

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FIR 86 dated 15 of NDPS 08 Kg 500 g Convicted on 10.09.2013 at PS act, 1985 Poppy Husk 09.11.2015 Noor Mehal District Jalandhar Punjab

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FIR 101 dated 15 of NDPS 1120 Kg Acquitted on 14.10.2015 at Act, 1985 Poppy Husk 09.11.2016 PS Bilga District Jalandhar Punjab

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FIR 43 dated 379, 411 of - Acquitted on 27.03.2013 at PS IPC, 1860 05.03.2016 Adampur District Jalandhar Punjab

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FIR 248 dated 353, 186, - Convicted on 29.08.14 at PS 332 of IPC, 06.10.2016 Phillaur, District 1860 Jalandhar {unjab

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FIR 14 dated 15 of NDPS 270 Kg. Under Trial 03.02.2017 at PS Act, 1985 Poppy Husk 01.07.2017 Khamano District Fatehgarh Sahib Punjab

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FIR 116 dated 52 A Prison - Convicted on 02.06.2016 at PS Act 22.09.16 Kotwali District Kapurthala, Punjab

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FIR 143 dated 21(c) NDPS - Lodged in 23.10.2020 at PS Act, 1985 Hoshiarpur Chabbewal, District Jail Hoshiarpur, Punjab

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FIR 20 dated 21(a), 22(b), 4g Heroin, Under Trial 25.03.2021 at PS 29 of NDPS 170 08.07.2021 Noor Mehal District Act, 1985 Intoxicant Jalandhar Punjab Tablets (8) The submission is that seeing the conduct of the respondent (Gurnam @ Gama) he did not deserve any concession from the Court purely on technicalities. (9) As far as the respondent (Jaswinder Singh) in Criminal Appeal No.2837 of 2025 is concerned, the submission is that she does not have any information/details about his antecedents after the FIR in question was registered. (10) On the other hand, learned senior counsel for the respondents submitted that the judgment in Mohan Lal’s case (supra) was delivered on 16th August, 2018 and it was the law on that day and relying upon the same, the High Court had acquitted the respondents vide impugned judgment dated 11th December, 2018. Any subsequent opinion by the Court cannot have retrospective operation. Hence, the acquittal of the respondents cannot be turned down. (11) He raised serious objections to the production of antecedents of the respondent - Gurnam @ Gama by the learned counsel for the appellant in Court stating that the same has not been furnished along with any affidavit. Hence, these cannot be referred to and relied upon. (12) Heard learned counsel for the parties and perused the material placed on record. The facts of the case are not required to be given in detail, as perusal of the impugned judgment of the High Court by which the respondents were acquitted shows that the evidence led before the Trial Court was not considered or appreciated. The acquittal was solely on the principle of law laid down by this Court in Mohan Lal’s case (supra). (13) The judgment in Mohan Lal’s case (supra) was delivered by this Court on 16th August, 2018. The High Court judgment in favor of the respondents is dated 11th December, 2018. Thereafter, the Special Leave Petitions were filed with delay. However, the delay was condoned and the leave was granted. After the judgment of the Mohan Lal’s case (supra), a three-Judge Bench of this Court in Varinder Kumar’s case (supra) clarified the position with reference to Mohan Lal’s case (supra) in paragraph 18 of the judgment. The same is extracted below: “18. The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it unidirectional exercise. A proper administration of the criminal justice delivery system, therefore, requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal is not allowed to become a springboard for acquittal in prosecutions prior to the same, irrespective of all other considerations. We, therefore, hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal shall continue to be governed by the individual facts of the case.” (14) A perusal of the aforesaid opinion expressed by this Court shows that the rights of the accused and the prosecution are required to be balanced and the judgment in Mohan Lal’s case (supra) could not be allowed to be a springboard for acquittal in prosecutions prior to the same, irrespective of all other considerations. It was held that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal’s case (supra) shall continue to be governed by the individual facts of the case. It is not in dispute that in the case in hand the appeals were pending before the judgment in Mohan Lal’s case (supra) was delivered. Thereafter, the matter was taken to this Court where the same is pending. (15) Further, we may add that the opinion expressed in Mohan Lal’s case (supra) was doubted and the matter was referred to the Constitution Bench (Mukesh Singh’s case (supra)) where the opinion expressed by this Court in Mohan Lal’s case (supra) was held to be not a good law and overruled. Para 12.(II) whereof is extracted below: “12.(II) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case-to-case basis. A contrary decision of this Court in Mohan Lal v. State of Punjab and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.” (emphasis supplied) (16) We may notice the argument raised by the learned senior counsel for the respondents that any judgment will not have retrospective effect. In our opinion, nothing hinges on that. Courts only interprets law and do not enact law. In the case in hand, the judgment of Mohan Lal’s case (supra) prevailed when the High Court decided the appeals. However, thereafter, the matter is pending in this Court and since appeals are continuation of proceedings, the law as available today is to be applied. The acquittal of the respondents in the present case was merely on technical ground in view of Mohan Lal’s case (supra) which was diluted in Varinder Kumar’s case (supra) and then overruled subsequently by the Constitution Bench of this Court in Mukesh Singh’s case (supra). (17) Hence, in our opinion, the appeals deserve to be allowed. Ordered accordingly. The impugned judgment of the High Court is set aside and the matter is remitted back to the High Court for consideration on merits. (18) Keeping in view that the appeals pertain to the year 2010, High Court is requested to expedite the hearing thereof. (19) Pending applications, if any, shall also stand disposed of. Result of the case: Appeals allowed. Headnotes prepared by: Ankit Gyan

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