Pankaj Thakur vs State of H.P. Cr. Appeal No. 276 of 2025 Reserved on 06.06.2025 24.06.2025 Present: M/s Piyush Rathore and Mr. Pranav Sharma, Advocates, for the applicant/appellant. Mr. Prashant Sen, Deputy Advocate General, for respondent-State. Cr.MP No. 2304 of 2025 The applicant (accused before learned Trial Court) was convicted by learned Special Judge, Shimla (learned Trial Court) for the commission of an offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and was sentenced to undergo rigorous imprisonment for a term of four years, pay a fine of ₹ 25,000/- and to undergo further simple imprisonment for three months in case of failure to pay the fine. Aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal before this Court. 2. The applicant has filed the present application, asserting that he has a very strong case in his favour. The appeal is likely to be allowed. The conviction of the applicant is without any evidence. He would abide by all the terms and conditions which the Court may impose. He is a young boy of 23 years. He has many opportunities to live his life and achieve various goals. He is the only son in his family. He was studying in 2 Chandigarh and had to discontinue his studies. His appeal is likely to take some time for its disposal. Hence, the present application. 3. I have heard M/s Piyush Rathore and Pranav Sharma, learned counsel for the applicants and Mr. Prahsant Sen, learned Deputy Advocate General for the respondent-State. 4. Mr. Pranav Sharma, learned counsel for the applicant, submitted that the applicant/appellant was on bail throughout the trial and he never misused the condition of bail. The independent witnesses did not support the prosecution's case. More than seven witnesses were given up. There are material contradictions in the statements of the prosecution’s witnesses. These discrepancies were ignored by the learned Trial Court. Therefore, he prayed that the present application be allowed and the sentence imposed by the learned Trial Court be suspended. 5. Mr. Prashant Sen, learned Deputy Advocate General, submitted that the applicant was found in possession of heroin, which is a heinous offence. He has been sentenced to undergo rigorous imprisonment for four years, and the sentence can be suspended if the applicant shows that he has a fair chance of acquittal. 3 Minor contradictions in the statements are not sufficient to discard the prosecution's case; therefore, he prayed that the present application be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was submitted that the applicant was on bail during the trial and he did not misuse the liberty extended to him; therefore, he is entitled to bail as a matter of right. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in State of Haryana v. Hasmat, (2004) 6 SCC 175: 2004 SCC (Cri) 1757: 2004 SCC OnLine SC 741 that the mere fact that the accused was on bail during the trial and he had not misused his liberty is no reason to suspend the sentence. It was observed at page 177: “8. The learned Sessions Judge, Gurgaon, by a judgment dated 24-10-2001, had found the accused-respondent guilty. Criminal Appeal No. 100- DB of 2002 was filed by the respondent. The fact that during the pendency of the appeal, the accused-respondent was on parole goes to show that initially the accused-respondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole, the accused has not misused the liberties does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court was whether reasons existed to suspend the 4 execution of the sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view. 8. It was held in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123: 2023 SCC OnLine SC 551 that the Court should consider the gravity of the offence while considering an application for bail under Section 389 of Cr. P.C. It was observed: “21. Suspension conveys postponement or temporarily prevents a state of affairs from continuing. According to Black's Law Dictionary (Seventh Edition), the word “suspend” means, inter alia, to interrupt; postpone; or defer. Black's Law Dictionary (Seventh Edition) describes the word “suspension” to mean, inter alia, an act of temporarily delaying, interrupting or terminating something. Attributing the same meaning to the word “suspend” as pointed out above, the New Oxford Dictionary of English (1998 Edition) describes suspending as temporarily preventing from continuing or being enforced or given effect or deferring or delay an action, event or judgment. 22. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders. 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 competent jurisdiction. Once the accused is found guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then 5 the presumption of innocence gets further fortified. 24. From a perusal of Section 389 CrPC, 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 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) CrPC. 9. It was further held that while deciding the application for suspension of the sentence, the Court should consider whether the applicant has a fair chance of acquittal. It was observed: 33. Bearing in mind the aforementioned principles of law, the endeavour on the part of the court, therefore, should be to see 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 abovesaid 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 takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has a fair chance of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very 6 apparent or gross on the face of the record, based on 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 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 10. Similarly, it was held in (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC 724: (2021) 2 SCC (Cri) 704: 2021 SCC OnLine SC 178, that while granting bail under Section 439 Cr.P.C., the Courts are liberal and apply the principle that bail is a rule and jail is an exception; however, in case of post-conviction bail, there is a finding of guilt and the question of presumption of innocence does not arise. The bail cannot be granted in NDPS cases lightly. It was observed: “10. At this stage, we will refer to the decision of a two-judge Bench of this Court in Preet Pal Singh v. State of U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645: (2020) 3 SCC (Cri) 897] where Indira Banerjee, J., speaking for the Court, observed as follows : (SCC p. 655, para 35) “35. There is a difference between the grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and the grant of bail, post-conviction. In the earlier case there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and 7 jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception, once there is a conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong, compelling reasons for the grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.” 11. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v. Rajesh [State of Kerala v. Rajesh, (2020) 12 SCC 122 : (2020) 4 SCC (Cri) 147]. The High Court, unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) CrPC was established. The order granting suspension of sentence under Section 389(1) CrPC is unsustainable and would accordingly have to be set aside.” 11. This position was reiterated in Shivani Tyagi v. State of U.P., 2024 SCC OnLine SC 842, wherein it was observed: 8 3. Section 389 of the Code of Criminal Procedure (for short the “Cr. PC”) deals with the suspension of execution of sentence pending the appeal against conviction and release of appellant(s) on bail. The said provision mandates for recording of reasons in writing leading to the conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. The said requirement thus indicates the legislative intention that the appellate Court, invoking the power under Section 389, Cr. P.C., should assess the matter objectively, and such assessment should reflect in the order. 4. We will briefly refer to some of the relevant decisions dealing with Section 389, Cr. P.C. In the case of short-term imprisonment for conviction of an offence, suspension of sentence is the normal rule, and its rejection is the exception. (See the decision in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421). However, we are of the considered view that the position should be vice-versa in the case of conviction for serious offences when the invocation of power under Section 389 is invited. This Court, in the decision in Kishori Lal v. Rupa (2004) 7 SCC 638, held in paragraphs 4 and 5 thus:— “4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering the suspension of execution of the sentence or order appealed against. If he is in confinement, the said Court can direct that he be released on bail or his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects, and the order directing suspension of sentence 9 and grant of bail should not be passed as a matter of routine. 5. The appellate Court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of an allegation of misuse of liberty during the earlier period when the accused-respondents were on bail.” 5. In the decision in Anwari Begum v. Sher Mohammad (2005) 7 SCC 326, this Court in paragraphs 7 and 8 held thus: — “7. Even on a cursory perusal, the High Court's order shows complete non- application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a Court dealing with the bail application should be satisfied as to whether there is a prima facie case, but an exhaustive exploration of the merits of the case is not necessary. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 8. There is a need to indicate in the order the reasons for prima facie concluding why bail was being granted, particularly where an accused was charged with having committed a serious offence. It is necessary for the Courts dealing with applications for bail to consider, among other circumstances, the following factors before granting bail, they are: 10 1. The nature of the accusation and the severity of punishment in case of conviction, and the nature of supporting evidence; 2. Reasonable apprehension of tampering with the witness or apprehension of a threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Rama Govind Upadhyay. Sudarshan Singh(2002) 3 SCC 598, Puran v.Rambilas(2001) 6 SCC 33 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528.” 12. It was further held that the suspension is to be granted by recording the reasons, and it is impermissible to release the accused simply because the appeal was not likely to be heard soon. It was observed: “9. We have already referred to the mandate under Section 389 Cr. P.C. that the order passed invoking the said provision should reflect the reason for coming to the conclusion that the convicts are entitled to get suspended their sentence and consequential release on bail. In the decision in State of Haryana v. Hasmat (2019) 5 SCC 373: 2019 INSC 377, this Court held that in an appeal against conviction involving a serious offence like murder punishable under Section 302, IPC the prayer for suspension of sentence and grant of bail should be considered with reference to the relevant factors mentioned thereunder, though not exhaustively. On its perusal, we are of the opinion that factors like the nature of the offence held to have been committed, the manner of their commission, the gravity of the offence, and also the desirability of releasing the convict 11 on bail are to be considered objectively and such consideration should reflect in the consequential order passed under Section 389, Cr. P.C. It is also relevant to state that the mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power under Section 389 Cr. P.C. without referring to the relevant factors. We say so because there cannot be any doubt with respect to the position that disposal of appeals against conviction (especially in cases where life imprisonment is imposed for serious offences), within a short span of time, may not be possible in view of the number of pending cases. In such circumstances, if it is said that disregarding the other relevant factors and parameters for the exercise of power under Section 389, Cr. P.C., the likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable. That certainly cannot be the legislative intention, as can be seen from the phraseology in Section 389 Cr. P.C. Such an interpretation would also go against public interest and social security. In such cases, giving preference over appeals where the sentence is suspended, in the matter of hearing or adopting such other methods, making an early hearing possible could be resorted to. We shall not be understood to have held that, irrespective of inordinate delay in consideration of the appeal and long incarceration undergone, the power under the said provision cannot be invoked. In short, we are of the view that each case has to be examined on its own merits and based on the parameters, to find out whether the sentence imposed on the appellant(s) concerned should be suspended during the pendency of the appeal and the appellant(s) should be released on bail.” 13. Therefore, the applicant can be released on bail if it is shown that his appeal is likely to succeed on merits. 12 14. It is apparent from the judgment passed by the learned Trial Court that the applicant was found guilty of commission of an offence punishable under Section 21 of the NDPS Act for possessing heroin, which shows that the offence is heinous. 15. It was submitted that the prosecution has not examined seven witnesses, and this makes the prosecution’s case doubtful. This submission is not acceptable. It was laid down in Hukam Singh v. State of Rajasthan (2000) 7 SCC 490 that the public prosecutor is not obliged to examine all the witnesses, and the adverse inference cannot be drawn from non- examination of the witnesses. This position was reiterated in Pohlu v. State of Haryana, (2005) 10 SCC 196, Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434, Rajesh Yadav v. State of U.P., (2022) 12 SCC 200. Therefore, the submissions that the prosecution's case has become doubtful because of the non-examination of the prosecution’s witnesses cannot be accepted. 16. ASI Ambi Lal (PW-2) stated that the minute-to-minute proceedings were not recorded by him. It was submitted that the failure to videograph and photograph the proceedings made the prosecution’s 13 case suspect. This submission is not acceptable. First of all, there is no requirement of minute-to-minute recording of the investigation in the NDPS Act, at least no such provision was brought to the notice of this Court. Secondly, ASI Ambi Lal (PW-2) only stated that he had not video recorded/photographed the incident; however, the incident was photographed and videographed, and the photographs (Ext.P3/PW-1 to Ext.P5/PW-1) and CD (Ext.P6/PW-1) were produced before the learned Trial Court. Therefore, it is incorrect to say that no photography or videography of the incident was made. 17. It was submitted that the ticket shows the time 15:28, whereas the ticket was produced at 5:30 p.m. This discrepancy made the prosecution’s case suspect. This is a misreading of evidence because the ticket mentions the time of its issuance, which will be entirely different from the time of its seizure. Therefore, not much advantage can be derived from this so-called discrepancy. 18. It was further submitted that the final report mentions that the bus had a registration number HP72C-9527, whereas the Investigating Officer admitted that the complete bus number was not 14 mentioned in Ext.P-26/PW-7 and Ext. P-27/PW-7. This will not help the applicant/accused.Merely because the complete registration number of the bus was not mentioned in two documents does not mean that the complete bus number was not known to the police. Further, there is nothing to show that the attention of the Investigating Officer was drawn to the charge-sheet filed by him, which is an essential requirement under Section 145 of the Indian Evidence Act. 19. It was submitted that CCTV footage was not obtained from the Police Post Shogi, which is near the place of the incident. Merely because the Police Post Shogi is near the incident is not sufficient, because it has to be shown that the CCTV camera installed in the Police Post Shogi would cover the place of the incident. There is nothing on record to show this fact, and no advantage can be derived from the failure to seize CCTV footage. 20. It was submitted that recovery was effected by ASI Ambi Lal (PW-2), and this fact was admitted by Constable Dharam Pal (PW-1), but he did not carry out the investigations. In the present case, recovery was effected by ASI Ambi Lal (PW-2), whereas investigation was conducted by HC Rajan (PW-15) to ensure fairness 15 and avoid any prejudice, therefore, the mere fact that the investigation was conducted by an Officer who had not effected the recovery does not mean that the recovery is suspicious. 21. It was submitted that there are material discrepancies in the statements of prosecution witnesses. Learned Trial Court noticed these contradictions in para 29 of its judgment and held in para 30 of its judgment that these were minor and do not affect the prosecution's case adversely. The minor contradictions were bound to come with time. Statements of prosecution witnesses inspire confidence. These findings are, prima facie, correct. The discrepancies were bound to come due to the failure of memory and different perceptions of the witnesses. Therefore, the contradictions, prima facie, cannot be used to doubt the prosecution's case. 22. It was submitted that disposal of the appeal is likely to take some time, and the applicant cannot be kept behind the bars indefinitely. This submission cannot be accepted. This Court has the Roster to hear the appeals of the prisoners of the year 2024, and considering the number of cases of the prisoners, the appeals filed in the year 2025 are likely to be heard soon. 16 Hence, the assumption that the appeal is not likely to be heard soon is without any basis, and the applicant cannot be released on bail due to the assumption; however, the applicant can approach the Court in case his appeal is not taken up for hearing soon. 23. In view of the above, there is no reason to suspend the sentence; hence, the present application fails and the same is dismissed. 24 The observation made hereinabove shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 24th June, 2025 (ravinder)