Neutral Citation No. ( 2025:HHC:22062 ) 1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No. 1749 of 2025 in Cr. Appeal No. 08 of 2023 Reserved on: 09.07.2025 Decided on: 10.07.2025 ____________________________________________________ Tikkam Ram …..Applicant/Appellant. Versus State of Himachal Pradesh ……Non-applicant/Respondent. ____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? No. _____________________________________________________ For the applicants: Mr. Ajay Kochhar, Senior Advocate, with Mr. Anubhav Chopra and Ms. Swati Sharma, Advocates. For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, with Mr. Navlesh Verma, Mr. Sushant Kaprate, Additional Advocates General, Mr. J.S. Guleria and Mr. Raj Negi, Deputy Advocates General. Sushil Kukreja, Judge. This order shall dispose of an application filed by the applicant/appellant under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking suspension of sentence awarded by learned Special Judge-II, Kinnaur at Rampur Bushahr, H.P., vide judgment of conviction, dated 27.10.2022, and order of sentence, dated 31.10.2022, in CIS Regd. No. 13 of 2022, 1 Whether reporters of Local Papers may be allowed to see the judgment? Neutral Citation No. ( 2025:HHC:22062 ) 2 for the commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the NDPS Act”). 2. The learned Senior counsel for the applicant/appellant contended that the appeal is likely to succeed in all probabilities as the appellant/applicant has got a very good arguable case on merits and have a fair chance of acquittal. He further contended that the appellant/applicant is 42 years old having two minor children and an ailing mother and he is the sole bread earner of the family. He also contended that the appellant/applicant has already undergone the sentence of about three years and ten months, as against the total sentence of ten years 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 and he may be released on bail. 3. On the other hand, learned Senior Additional Advocate General contended that the applicant/appellant is not entitled to be released on bail during the pendency of the present appeal, as he has been convicted in a serious offence after a full-fledged trial. 4. We have heard the learned Senior counsel for the applicant/appellant as well as learned Additional Advocate General Neutral Citation No. ( 2025:HHC:22062 ) 3 for the non-applicant/State and have also gone through the material available on record. 5. The learned Trial Court convicted the appellant/applicant under Section 20 of the NDPS Act for allegedly possessing 1.135 kg charas and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of two years. The perusal of the record further reveals that the co-accused, namely, Hetram and Nitturam were also convicted by the learned Trial Court under Section 29 of the NDPS Act and they were sentenced to undergo simple imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/- each and in default of payment of fine to further undergo simple imprisonment for a period of two years. 6. The perusal of the record reveals that on 18.02.2021 1.135 kgs of charas was allegedly recovered from one Toyota vehicle, which was being driven by the applicant/appellant Tikkam Ram. Thereafter, as per the case of the prosecution, the recovered contraband was sealed with nine seals of seal impression ‘T’ and the same was taken into possession, vide memo Ex. P2/PW-1. After that an application was presented before the learned ACJM Rampur Bushahr for certifying the Neutral Citation No. ( 2025:HHC:22062 ) 4 inventory under Section 52A of the NDPS Act. Vide order dated 18.08.2021, learned ACJM, Rampur Bushahr certified the inventory of the contraband and the bag containing the contraband was put into a parcel, which was sealed with nine seals of seal impression ‘TEHSILDAR RIYASAT MAHASU’. As per the case of the prosecution, the contraband was sent to SFSL through Constable Susheel (PW-2), but the same was received at SFSL, Junga, Shimla, sealed with seal impression ‘TAHSILDAR RAMPUR MAHASU H P’. Thus, there is a change in the seal impression when the contraband reached SFSL, Junga, Shimla. The prosecution has failed to explain as to how the seal impression ‘TEHSILDAR RIYASAT MAHASU’ was changed to ‘TAHSILDAR RAMPUR MAHASU H P’, when the contraband reached SFSL, Junga. The aforesaid discrepancy in the prosecution case is so glaring that it may affect the core of the prosecution case and prima facie in the opinion of this Court, due to the change of seal, possibility of tempering of the case property cannot be ruled-out. 7. After hearing the learned Senior counsel for the applicant/appellant, learned Senior Additional Advocate General for the respondent/State and after going through the entire evidence on record, which has been considered prima facie for the purpose of adjudicating the instant application, we are of the opinion that Neutral Citation No. ( 2025:HHC:22062 ) 5 the applicant/appellant has made out a case for suspension of sentence imposed upon him. The Hon’ble Supreme court in the case of Bhagwan Rama Shinde Gosai vs. State of Gujrat (1999) 4 SCC 421 held that when a convicted person is sentenced to a fixed period of sentence and when he filed an appeal under any statutory right, suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. The relevant portion of the aforesaid judgment is reproduced as under: “3. When a convicted person is sentenced to a fixed period of sentence and when he filed an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is an different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavor should be made to dispose of the appeal on merits more so when a motion of expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.” 8. Admittedly, the appellant/applicant is now 42 years old and he is stated to be having two minor children and an ailing mother and he is also stated to be the sole bread earner of his family. As per the records, the appellant/applicant has already undergone sentence of more than three and half years, as against Neutral Citation No. ( 2025:HHC:22062 ) 6 the total sentence of 10 years awarded to him by the learned Trial Court. The perusal of the record also reveals that the instant appeal is of the year 2023 and the same is not likely to be decided in near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/appellant, therefore, he cannot be made to suffer further incarceration on such evidence led by the prosecution. 9. Hence, keeping in view the aforesaid background of the present case, this Court is of the opinion that it is a fit case for suspension of sentence of imprisonment. Therefore, in view of the peculiar facts of this case, the substantive sentence imposed upon the applicant/appellant Tikkam Ram by learned Special-II, Kinnaur at Rampur Bushahr, District Shimla, H.P., in CIS Regd. No. 13 of 2022, vide judgment of conviction, 27.10.2022, and order of sentence, dated 31.10.2022, shall remain suspended till final disposal of the appeal, however, subject to the applicant’s furnishing personal bond in the sum of Rs.2,00,000/- with two sureties in the like amount to the satisfaction of learned Trial Court and also subject to deposit of fine amount, if not already deposited. On furnishing the requisite bail bonds, he be released forthwith, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the appeal, the Neutral Citation No. ( 2025:HHC:22062 ) 7 applicant/appellant will surrender before the Court. 10. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of. ( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 10th July, 2025 (virender)