Neutral Citation No. ( 2025:HHC:18367 ) 1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No. 1960 of 2025 in Cr. Appeal No. 403 of 2023 Decided on: 17.06.2025 _____________________________________________________ Devi Ram …..Appellant/applicant. Versus State of Himachal Pradesh ……Respondent/non-applicant. _____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? _____________________________________________________ For the applicant: Ms. Shikha Chauhan, Advocate. For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, with Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Additional Advocates General, and Mr. J.S. Guleria, Deputy Advocate General. Sushil Kukreja, Judge. (Oral) This order shall dispose of application, filed by the applicant/appellant Devi Ram, under Section 430(1) of The Bharatiya Nagarik Suraksha Sanhita, 2023, seeking suspension of sentence awarded by the learned Special Judge, Sundernagar, District Mandi, H.P., in NDPS Trial No. 25/2018, vide judgment of conviction and order of sentence, dated 06.05.2023, for the commission of offence punishable under Section 20 of the Narcotic 1 Whether reporters of Local Papers may be allowed to see the judgment? Neutral Citation No. ( 2025:HHC:18367 ) 2 Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and releasing him on bail. 2. The learned Counsel for the appellant/applicant contended that the appellant/applicant has got a very good arguable case on merits, as the evidence relied upon by the learned Trial Court is shaky, thus not tenable in the eyes of law. She also contended that the prosecution has failed to comply with the mandatory provisions of the Act, which castes a doubt qua the alleged recovery from the conscious possession of the appellant/applicant. She further contended that there are material contradictions in the statements of the prosecution witnesses, which the learned Trial Court has lightly brushed aside and there is no evidence at all which shows that the appellant/applicant had any connection with the alleged contraband. She also submitted that as the applicant has already undergone sentence of more than four years and eight months, as against the total sentence of twelve years awarded to him and the appeal is not likely to be decided in near future, therefore, in view of the peculiar facts and circumstances of the case, the sentence imposed upon the appellant/applicant by the learned Trial Court be suspended in the interest of justice and fair play. 3. Per contra the learned Additional Advocate General Neutral Citation No. ( 2025:HHC:18367 ) 3 contended that the appellant/applicant is not entitled for suspension of sentence, as huge quantity of contraband, i.e., 2 kgs 08 grams of charas, was recovered from the exclusive and conscious possession of the appellant/applicant and the learned Trial Court had found him guilty. It is further contended that after the judgment of conviction, there is no presumption of innocence in favour of the appellant/applicant and the instant application, being devoid of merits, deserves to be dismissed. 4. We have heard the learned counsel for the applicant/appellant as well as learned Additional Advocate General and have also gone through the material available on record. 5. The perusal of the record reveals that learned Special Judge, Sundernagar, District Mandi, H.P., vide judgment of conviction and order of sentence, dated 06.05.2023, convicted the applicant/appellant Devi Ram under Section 20 of the NDPS Act and sentenced him to undergo rigorous imprisonment for a period of 12 years and to pay fine of Rs.1,10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year for his alleged involvement in possessing 2 kgs 08 grams of charas. 6. Before adverting to the rival contentions raised by the learned counsel for the applicant/appellant as well as learned Neutral Citation No. ( 2025:HHC:18367 ) 4 Senior Additional Advocate General for the non-applicant/State, it would be beneficial to refer to the settled legal position, to the effect that when the appellant/accused is convicted by the competent Criminal Court, the initial presumption of innocence is no more available to him. In case Sidhartha Vashisht alias Manu Sharma vs. State (NCT Delhi), reported in 2008(5) SCC 230, it has been observed in paragraphs 19, 29 & 30 as under: "19. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant. 17 to 29 xxx 29. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to be an `innocent person' until the final decision is recorded by the superior Court in his favour. 30. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, (2000) 6 SCC 461, Vijay Kumar v. Narendra & Ors., (2002) 9 SCC 364 : JT 2004 Supp (1) SC 60, Ramji Prasad v. Rattan Kumar Jaiswal & Anr., (2002) 9 SCC 366 : JT 2002 (7) SC 477, State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6, Kishori Lal v. Rupa & Ors., (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (4) SC 461. In the above cases, it has been observed that once a person has been convicted, normally, an appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302, IPC, the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.” Neutral Citation No. ( 2025:HHC:18367 ) 5 7. In a recent judgment by the Hon’ble Apex Court in Om Prakash Sahni vs. Jai Shankar Chaudhary and Another, (2023) 6 Supreme Court Cases 123, it has been held that once the accused is held guilty, the presumption of innocence gets erased. The relevant portion of the aforesaid judgment reads as under: “23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of the competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified. 24. From perusal of Section 389 of the Cr. PC, it is evident that save and except the matter falling under the category of sub-Section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre- conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the Cr. PC. 25 to 32 xxx 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr. PC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 8. Taking into consideration the position of law, as can be gathered from various judgments of the Supreme Court, it is very Neutral Citation No. ( 2025:HHC:18367 ) 6 clear that discretion at the time of considering the plea of the accused for suspension of sentence pending final hearing of appeal has to be exercised judiciously and not as a matter of course as once the conviction is recorded, the presumption of innocence is no longer available to the appellant. A perusal of Section 430 of The Bharatiya Nagarik Suraksha Sanhita, 2023, would show that suspension of sentence during pendency of appeal is not the absolute right of the convict. The discretion to suspend the sentence vests in the court and it is required to be exercised judicially keeping in view all facts and circumstances and the nature of offence. The Court has to exercise this discretion with utmost care and caution, balancing one's right and liberty on one hand and the interest of the society on the other. 9. In the instant case, the nature of allegations against the appellant/applicant is serious and he had been convicted by the learned trial Court for the commission of the offence under Section 20 of the NDPS Act. The quantity of charas involved in the instant case is 2 kgs and 08 grams, which is commercial quantity. The learned counsel for the appellant/applicant highlighted some contradictions in the statements of prosecution witnesses and also contended that the prosecution had failed to comply with the mandatory provisions of the NDPS Act, which castes a doubt qua Neutral Citation No. ( 2025:HHC:18367 ) 7 the alleged recovery from the conscious possession of the appellant/applicant. However, the contentions raised by the learned counsel for the appellant/applicant cannot be accepted at this stage, as the same cannot be gone into in detail at the stage of deciding the present application for suspension of sentence and will be dealt with at the time of final disposal of the appeal. This Court cannot reappreciate the evidence at the stage of deciding the application under Section 430 of The Bharatiya Nagarik Suraksha Sanhita, 2023, and try to pick up few lacunas or loopholes here or there in the case of the prosecution as held by the Hon’ble Apex Court. 10. It may be pertinent to mention here that the similar application was earlier filed by the applicant for suspension of sentence (Cr.MP No. 3240 of 2023), which was dismissed, vide order dated 23.11.2023 passed by this court. It is a settled law that while entertaining such subsequent application, the Court has a duty to consider the reasons and grounds on which the earlier application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the application afresh and to take a view different from the one taken in the earlier application. 11. However, this Court is of the view that after the Neutral Citation No. ( 2025:HHC:18367 ) 8 dismissal of the earlier application, there is no substantial change in the circumstances which would entitle the applicant for suspension of his sentence. Therefore, in absence of any changed circumstances, the present successive application for suspension of sentence cannot be entertained. 12. In view of the above discussion and keeping in mind, the nature of conviction and sentence imposed by the learned Trial Court, that too, after a full-fledged trial, we are not inclined to suspend the sentence of the applicant/appellant at this stage. The application for suspension of sentence is, therefore, dismissed and stands disposed of accordingly. ( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 17th June, 2025 (virender)