Rahul Sharma & Anr. vs. State of H.P. Cr. Appeal No.495 of 2023 19.03.2025 Present: Mr. Arsh Chauhan, Advocate, vice Mr. Charanpreet Singh, Advocate, for the appellants. Ms. Ranjana Patial, Deputy Advocate General, for the respondent/State. Cr.MP No.4524 of 2024 By way of the present application, indulgence of this Court has been sought to suspend the judgment of conviction dated 27.09.2023 and order of sentence dated 29.09.2023, passed by the Court of learned Special Judge, Hamirpur, District Hamirpur, H.P. (hereinafter referred to as the ‘trial Court’), in NDPS Trial No.34 of 2020, titled as ‘State of H.P. Vs. Rahul Sharma & another’. 2. Applicants have preferred the present Criminal Appeal against the judgment of conviction dated 27.09.2023 and order of sentence dated 29.09.2023, passed by the learned trial Court, whereby, the learned trial Court has convicted the applicants for the offence punishable under Section 21(b) of the NDPS Act and sentenced them to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.50,000/-. In default of payment of fine, they have been sentenced to undergo rigorous imprisonment for one year. 3. The custody certificate of the applicant, dated 18.03.2025, has been placed on record, in terms of which, the applicant No.1, Rahul Sharma has undergone 1 year, 6 months and 9 days of imprisonment. 4. The present appeal, preferred by the applicants, will take sufficient long time for its decision. 5. The sentence which has been imposed by the learned trial Court in this case, falls within the definition of fixed term and according to the decisions of Hon’ble Supreme Court in ‘Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat’, reported in (1994) 4 SCC 421 and in ‘Bhupatji Sartajji Jabraji Thakor Vs. State of Gujarat’, reported in ‘2024 SCC OnLine SC 3320’, the term which falls within the definition of ‘sentence of fixed term’, is liable to be suspended. Relevant paragraph 3 of the judgment in Bhagwan Rama Shinde Gosai’s case (supra) is reproduced, as under:- “3. When a convicted person is sentenced to fixed period of sentence and when he files 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 a 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 limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing 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 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.” 6. Relevant paragraph 7 of the judgment in Bhupatji Sartajji Jabraji Thakor’s case (supra), is reproduced, as under:- “7. There is a fine distinction between a sentence imposed by the trial court for a fixed term and sentence life imprisonment. If a sentence is for a fixed term, ordinarily, the appellate court may exercise its discretion to suspend the operation of the same liberally unless there are any exceptional circumstances emerging from the record to decline. However, when it is a case of life imprisonment, the only legal test which the Court should apply is to ascertain whether there is anything palpable or apparent on the face of the record on the basis of which the court can come to the conclusion that the conviction is not sustainable in law and that the convict has very fair chances of succeeding in his appeal. For applying such test, it is also not permissible for the court to undertake the exercise of reappreciating the evidence. The emphasis is on the word “palpable” and the expression “apparent on the face of the record”.” 7. Consequently, application, under consideration is allowed and the judgment of conviction dated 27.09.2023 and order of sentence dated 29.09.2023, passed by the learned trial Court, is ordered to be suspended and the applicant No.1- Rahul Sharma, who is presently lodged in Model Central Jail, Kanda, District Shimla, H.P, is ordered to be released on bail, in this case during the pendency of the appeal, subject to the following conditions: (i) That the applicant shall furnish personal bond in the sum of Rs.50,000/-, along with one surety of the like amount, to the satisfaction of the learned trial Court, within a period of four weeks from today, with an undertaking that he will surrender before the learned trial Court to serve the remainder substantive sentence, in case of ultimate dismissal of the present appeal, by this Court; (ii) That the applicant shall deposit the fine amount. (iii) The applicant shall not leave the territory of India without the prior permission of the Court. 8. Application is, thus, disposed of (Virender Singh) Judge March 19, 2025 (subhash) Digitally signed by MAMTA RAO Date: 2025.03.19 15:52:50 IST