Devender Kumar Vs. State of H.P. Cr.MP No.1735 of 2020 in Cr. Appeal No. 193 of 2025 Reserved on 16.06.2025 25.06.2025 Present: M/s Vijender Katoch and Shivanshu Attri, Advocates, for the applicant/appellant. Mr. Jitender Sharma, Additional Advocate General, for the respondent/State. Cr. MP No.1735 of 2025 The applicant/appellant was convicted by the learned Trial Court for the commission of an offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for five years, pay a fine of ₹ 20,000/- and in default of payment of fine to further undergo imprisonment for one year. 2. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal before this Court, which is pending consideration. The present application has been filed to seek the suspension of the sentence awarded by the learned Trial Court. It has been asserted that the applicant has a prima facie arguable case in his favour and the appeal is likely to be allowed. He was on bail during the trial, and he never misused the liberty granted to him. The appeal is not likely to be heard soon, and in case the sentence is not suspended, the very purpose of filing the appeal would be frustrated. Therefore, it was prayed that the present application be allowed and the sentence imposed by the learned Trial Court be suspended during the pendency of the appeal before this Court. 3. The application was opposed by filing reply taking a preliminary submission regarding the lack of maintainability. It was asserted that the applicant was found in possession of 45.03 grams of heroin. He was rightly convicted and sentenced by the learned Trial Court. The narcotics are impacting the younger generation severely, and no leniency should be shown to the applicant. Therefore, it was prayed that the present application be dismissed. 4. I have heard M/s Vijender Katoch and Shivanshu Attri, learned counsel for the appellant/accused, and Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent/State. 5. Mr. Vijender Katoch, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the applicant. There was a violation of Section 50 of the NDPS Act, which is fatal to the prosecution's case. Therefore, he prayed that the present application be allowed and the sentence imposed on the applicant by the learned Trial Court be suspended. 6. Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent/State, submitted that the applicant had himself written on the memo that he wanted to be searched by the police and Section 50 of the NDPS Act was duly complied with; therefore, he prayed that the present application be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. The record of learned Trial Court shows that the recovery was effected from the right pocket of the lower worn by the accused; therefore, it was a case of personal search. As per the prosecution, the police told the applicant that he had a right to be searched before a Magistrate or Gazetted Officer. However, the accused opted to get himself searched by the police party. It is not explained on record as to how the accused could have opted to be searched by the police when he had only been told to be searched before the Magistrate or the Gazetted Officer. This aspect, prima facie, makes it suspicious that there was proper compliance with Section 50 of the NDPS Act. In similar circumstances, it was held by the Division Bench of this Court in State of Himachal Pradesh Vs. Jai Kishan 2025:HHC:4380, that Section 50 of the NDPS Act was not complied with. Keeping in view this aspect, the present application is allowed and sentence imposed by learned Trial Court is ordered to be suspended during the pendency of the appeal, subject to deposit of fine, if not deposited earlier, and on furnishing of personal bonds in the sum of ₹ 50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court with an undertaking to appear before this Court as and when directed to do so and receive the sentence in case of dismissal of the present appeal. 9. Learned Trial Court is directed to transmit the bail bonds, so furnished by the applicant before it, for placing the same on record. 10. A copy of the order be sent to the learned Trial Court through FASTER. 11. Parties are permitted to produce a copy of this order downloaded from the webpage of the High Court of Himachal Pradesh before the authorities concerned, and the said authorities shall not insist on the production of a certified copy, but if required, may verify passing of the order from Website of the High Court. Cr. Appeal No.193 of 2025 The record has been received. List the matter for hearing in due course. (Rakesh Kainthla) Judge June 25th, 2025 (rupsi) Digitally signed by KARAN SINGH GULERIA Date: 2025.06.25 22:38:29 IST