Digvijay Singh vs State of H.P. Cr. MP No. 3742 of 2024 in Cr.Appeal No.204 of 2024 Reserved on 27.12.2024. 03.01.2025 Present: Mr. Ravi Tanta, Advocate for the applicant/appellant. Mr. Lokender Kutlehria, Additional Advocate General for the respondent/State. The applicant has filed the present application for seeking suspension of sentence. It has been asserted that the applicant was sentenced to undergo rigorous imprisonment for four years and to pay a fine of ₹ 25,000/- for the commission of an offence punishable under Section 21 of the ND&PS Act. The applicant is lodged in Central Jail Kanda, and he has completed a considerable term of his total imprisonment. He belongs to a respectable section of the society. The co-accused has been acquitted by learned Additional Sessions Judge-I, Shimla. The earlier bail petition filed by the applicant was disposed of on 03.07.2024. There is a change in circumstance, therefore, it was prayed that the present application be allowed and the execution of the sentence imposed by the learned Trial Court be suspended. 2. The application is opposed by filing a reply asserting that there is no infirmity in the findings of the learned Trial Court. The applicant was found in possession of 23 grams of heroin and was convicted and sentenced after the trial. The presumption of innocence has been shattered. The applicant is in custody. Three FIRs have also been registered against him. He made an incorrect statement that he was not involved in the commission of any offence. Hence, it was prayed that the present application be dismissed. 3. I have heard Mr. Ravi Tanta, learned counsel for the applicant and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 4. Mr. Ravi Tanta, learned counsel for the applicant, submitted that the applicant has a fair chance of acquittal in the present case. The prosecution case shows that the recovery was not a chance recovery as projected by the prosecution; the description of the case property has varied at different stages of the trial, and the integrity of the case property has not been established. The co-accused has been acquitted, and the State has not preferred any appeal. The findings recorded regarding the co-accused will also apply to the present applicant. He prayed that the present application be allowed and the execution of the sentence awarded by the learned Trial Court be suspended during the pendency of the appeal. 5. Mr Lokender Kutlheria, learned Additional Advocate General for the respondent/State, submitted that the applicant was convicted after the trial. The presumption of innocence has been shattered. 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, as per the prosecution, the Investigating Officer checked the dashboard of the applicant’s vehicle and found heroin in it. The police took a photograph showing the investigating officer taking out the heroin from the dashboard. This shows that the police had prior information or the photographs were stage- managed. Prima facie, the submission is not acceptable. The Investigating Officer is shown to be holding the heroin in his hand, and the dashboard is open. He is not shown removing the heroin from the dashboard. The police official could have taken the photograph after the heroin was taken out of the dashboard and when it was in the hand of the Investigating Officer. This aspect does not make the prosecution case suspect. 8. It was submitted that independent witnesses were not associated even though the place was frequented by many people. This makes the prosecution case highly suspect. This submission is not prima facie acceptable. The prosecution case shows that the police opened the dashboard to take out the documents when the applicant failed to produce the documents despite the direction of the police. The recovery was effected while looking for the documents in the dashboard. Therefore, it was a case of chance recovery. This Court held in Hari Bahadur versus State of H.P 2024: HHC: 14355 that in case of chance recovery, no useful purpose would be served by associating an independent person because he could not be a witness to the recovery. Therefore, no advantage can be derived from the fact that the independent witness was not associated by the Investigating Officer. 9. It was submitted that there is a discrepancy regarding the shape of the case property. It was mentioned in the rukka that the case property was in the form of a sphere. The learned Magistrate stated in the order dated 12.10.2018 that the cloth parcel contained cylindrical substances wrapped in beige (khaki tape), and the result of the analysis shows that the substance was found to be creamish brown irregularly shaped hygroscopic mass along with one rolled brown cello tape. A perusal of the photographs shows that the substance is spherical. The result of the analysis shows the description of the substance after it was opened. There is no discrepancy between the two. The result also shows rolled brown cello tape, which shows that the substance was rolled and corresponded to the sphere-shaped substance. The learned Magistrate had mentioned that the substance was cylindrical, but that by itself does not doubt the prosecution case at this stage. Its effect has to be seen with the other evidence. 10. It was submitted that the integrity of the case property is not established. This is prima facie unacceptable. The result of the analysis shows that the seals were intact. It was held in Raju Gharti & others Versus the State of H.P 2024: HHC:10744 that where the seals were found intact in the laboratory, the integrity of the case property was established. 11. It was submitted that the co-accused had been acquitted, no appeal was filed by the State, and the prosecution case was weakened against the applicant. Reliance was placed upon the judgment of the Hon’ble Supreme Court in Ram Singh versus State of U.P (2024) 4 SCC 208 in support of this submission. This judgment will not help the applicant. The Hon’ble Supreme Court held in Ram Singh (supra) that when the same evidence is led against two accused and one of them is acquitted, the other cannot be convicted. In the present case, the evidence against the co-accused was different and based on the call detail record, which was held to be insufficient to convict the co-accused in the absence of any other evidence. The prosecution has relied upon the direct evidence of recovery against the accused. There was no common evidence implicating the applicant and the co-accused; hence, the acquittal of the co-accused will not benefit the present applicant. 12. It was submitted that the defence evidence shatters the prosecution case. This is prima facie not acceptable. The defence witness stated that the applicant was taken on 25.09.2018 at ISBT, Tutikandi, at 7:30 PM by 3-4 persons having pistols who were later identified as police officials. The applicant was apprehended on 26.09.2018 at about 1:10 AM at the Housing Board Colony bifurcation. The applicant could be present at ISBT on 25.09.2018 at 7:30 PM and Housing Board Colony Bifurcation at 1:10 AM. Significantly, it was not suggested to the police officials that they had taken the accused from ISBT, kept him with them till 1:10 am, and falsely implicated him. It was suggested to the police officials in the cross-examination that the vehicle was parked at ISBT, Tutikandi and not at Housing Board Colony Bifurcation. This shows that as per the suggestion made to the witnesses, the vehicle was parked at 1:10 AM at ISBT, which falsifies the version of DW-1 that the accused was taken from ISBT at 7:30 PM on 25.09.2018. 13. Significantly, the applicant has not claimed that he was taken from ISBT, Tutikandi, by the police and was kept with them throughout the night. Therefore, the statement of DW1 is not as per the statement of the accused under Section 313 Cr.P.C. Further, the DW-1 stated that he took the bus to Rohru. It is difficult to believe that a person whose friend is being taken away by 3-4 armed persons will not do anything, not even contact the police or make a complaint to any person regarding the abduction of his friend. Therefore, prima facie, the learned Trial Court had rightly discarded the version of DW-1. 14. Consequently, the applicant has failed to show that he has a prima facie good case for acquittal; hence, he cannot be released on bail at this stage. 15. It was submitted that the applicant is entitled to bail because his appeal is not likely to be heard soon. This is not correct. Learned counsel for the applicant had himself not argued the matter and had requested for the adjournments repeatedly, as is apparent from the order sheets. Therefore, the applicant cannot claim the benefit of any delay in the disposal of the appeal. 16. No other point was urged. 17. In view of the above, the present application fails, and the same is dismissed. 18. The observations made hereinbefore shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 3rd January, 2025 (Nikita)