Rajesh Kumar vs. State of H.P. Cr. Appeal No. 443 of 2025 Reserved on 31.07.2025 07.08.2025 Present: Mr. Arun Kaushal, Advocate, for the petitioner. Mr. Jitender K. Sharma, Additional Advocate General, for the respondent/State. Cr.MP No. 3292 of 2025 The applicant/appellant (accused before learned Trial Court) was tried for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act by learned Special Judge, Sarkaghat, District Mandi, H.P. (learned Trial Court). He was convicted and sentenced vide judgment and order dated 01.07.2025 for the commission of the aforementioned offences. He was sentenced to undergo rigorous imprisonment for five years, pay a fine of ₹70,000/- and in default of payment of fine, to undergo further simple imprisonment for three months.(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Aggrieved by the judgment and order passed by the learned Trial Court, the accused has 2 filed an appeal before this Court. 3. The accused has also applied for suspension of the sentence imposed by the learned Trial Court during the pendency of the appeal. It is asserted that the applicant/accused was on bail during the trial and did not misuse the liberty. He has raised substantial questions of law and fact, including non-compliance with the mandatory provisions of the NDPS Act, procedural irregularities, hostile witnesses and lack of conscious possession. He has fair chances of succeeding in his appeal. The entire sentence is likely to be served before the appeal is finally heard and decided. The applicant/accused is a permanent resident of Himachal Pradesh and has deep roots in the society. He would abide by all the terms and conditions which the Court may impose. Hence, the application. 4. No reply was filed. 5. I have heard Mr. Arun Kaushal, Advocate, learned counsel for the applicant/accused and Mr.Jitender K.Sharma, learned Additional 3 Advocate General, for the non-applicant/State. 6. Mr. Arun Kaushal, learned counsel for the applicant/accused, submitted that the learned Trial Court did not consider the evidence in its right perspective. The search and seizure proceedings were carried out in disregard of the procedural law. Neither video recording, nor CCTV footage/ photographs were taken to connect the applicant/accused with the commission of the crime. Independent witnesses are not visible in the photographs produced in the Court. The chain of custody is not proper, and there is overwriting in the official record. Manphool Singh-Tehsildar (PW-14) stated that no recovery was made during the personal search. Mandatory provisions of Section 50 of the NDPS Act were not complied with. Independent witnesses did not support the prosecution’s case. Investigating Officer admitted that photographs were taken; however, the accused, independent witnesses and motorcycle were not visible. There was no material to show that the applicant/accused was in possession of a 4 bag or was aware of its contents. Therefore, he prayed that the present application be allowed and the sentence be suspended during the pendency of the appeal. 7. Mr. Jitender K. Sharma, learned Additional Advocate General for the non- applicant/State, submitted that recovery of 288 and 102 grams of cannabis was made from Rajesh Kumar and Pardeep Kumar, respectively. The mere fact that independent witnesses did not support the prosecution’s case is not sufficient to discard it. Minor contradictions are bound to come with time. No recovery was effected from the personal search, and Section 50 of the NDPS Act does not apply to the present case. Learned Trial Court had dealt with these aspects in a well-reasoned judgment. The sentence cannot be suspended merely because the applicant was on bail throughout the trial. The applicant/accused has failed to show any fair chances of his acquittal.Therefore, he prayed that the present application be dismissed. 8. I have given considerable thought to the 5 submissions made at the bar and have gone through the records carefully. 9. 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 the sentence and grant of bail. What was really necessary to be considered by the High Court was whether reasons existed to suspend the execution of the sentence and thereafter grant bail. The High Court does 6 not seem to have kept the correct principle in view. 10. It was submitted that the learned Trial Court had sentenced the accused to undergo a fixed term sentence, and such a sentence should be suspended as a matter of right. This submission is not acceptable. This Court dealt with a similar argument in CrMP no. 4659 of 2023 titled Raju vs State, decided on 27.06.2024 and held that the fixed term sentence up to three years can be suspended as a matter of right, but the accused has to show a fair chance of acquittal for serious offences. It was observed: “13. Therefore, in the case of a short-term sentence of three years provided in the statute, bail is the rule and jail is the exception. However, in serious offences, the Court has to consider the circumstances of the case and the likelihood of early disposal of the case. Where the case is not taken up expeditiously and the person has spent more than half of the sentence, the person is entitled to be released on bail.” 11. This order was assailed before the Hon’ble Supreme Court of India in Special Leave to Appeal (Crl.) No.10110/2024 titled Raju vs State decided on 05.08.2024. The Hon’ble Supreme Court 7 was not inclined to admit the SLP, and it was dismissed as withdrawn. It was observed: “1. After arguing the case for some time and on our expressing reservations in entertaining the Special Leave Petition, learned counsel appearing for the petitioner seeks permission to withdraw the said Petition. 2. The permission as sought is granted. 3. The Special Leave Petition is, accordingly, dismissed as withdrawn.” 12. 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. 8 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 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. 13. 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: 9 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 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.” 14. 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 10 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 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 11 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.” 15. This position was reiterated in Shivani Tyagi v. State of U.P., 2024 SCC OnLine SC 842, wherein it was observed: “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 12 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: 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.” 16. 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 13 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 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 14 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.” 17. Therefore, the applicant can be released on bail if it is shown that his appeal is likely to succeed on merits. 18. It was submitted that there is non- compliance with the provisions of Section 50 of the NDPS Act, which is mandatory, and this vitiated the proceedings pending before the learned Trial Court.This submission cannot be accepted. It was held in Dayalu Kashyap v. State of Chhattisgarh, (2022) 12 SCC 398: 2022 SCC OnLine SC 334 that 15 Section 50 of the NDPS Act does not apply when the recovery was effected from a bag. It was observed at page 400: “5. In the conspectus of the facts of the case, we find that the recovery was in a polythene bag which was being carried on a kanwad. The recovery was not in person. The learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by a violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by the learned counsel for the appellant.” 19. It was submitted that the prosecution witnesses did not support the prosecution case, and this was sufficient to make the prosecution case suspect. It was laid down by this Court in Budh Ram Versus State of H.P. 2020 Cri. L.J. 4254, the the prosecution's version cannot be discarded because the independent witnesses did not support it. It was observed: Though the independent witnesses, PW-1 Rajiv Kumar and PW-2 Hira Lal, were declared hostile and were cross-examined, however, the law in respect of appreciating the testimonies of such witnesses is well settled. Hon'ble Apex Court in Sudru versus State of Chhattisgarh, (2019) 8 SCC 333, 16 relying upon Bhajju versus State of M.P., 2010 4 SCC 327, has again reiterated the well- settled principle that evidence of a hostile witness can be relied upon by the prosecution version. Merely because a witness has turned hostile, the same does not render his evidence or testimony inadmissible in a trial, and such a conviction can be based upon such testimony, if it is corroborated by other reliable evidence. In a case titled Raja and Others versus State of Karnataka (2016) 10 SCC 506, the Apex Court observed that the evidence of a hostile witness cannot be altogether discarded, and as such it is open for the Court to rely on the dependable part of such evidence which stands duly corroborated by other reliable evidence on record. In a case titled Selvaraj @ Chinnapaiyan versus State represented by Inspector of Police, (2015) 2 SCC 662, the Apex Court has observed that in a situation/case wherein the witness deposes falsely in his/her cross-examination, that itself is not sufficient to outrightly discard his/her testimony in examination-in-chief. The Court held that a conviction can be recorded believing the testimony of such a witness given in examination-in-chief; however, such evidence is required to be examined with great caution. In Ashok alias Dangra Jaiswal versus State of Madhya Pradesh, (2011) 5 SCC 123, it has been held as under: - "The seizure witness turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, 17 particularly in cases relating to the NDPS Act.” 20. Therefore, the prosecution’s case cannot be doubted simply because independent witnesses did not support the prosecution’s case. 21. It was submitted that the photographs do not show the independent witnesses. No video recording was produced before the Court. This submission will not help the accused. The primary evidence presented before the Court is the testimonies of the witnesses. The photographs and the video recording are produced to corroborate their testimonies. Learned Trial Court held that the testimonies of prosecution witnesses corroborated each other; therefore, the absence of corroboration will not make their testimonies doubtful. 22. It was submitted that the requirement of Section 42 of the NDPS Act was not satisfied. There is no evidence that the police have any prior information. The police stopped the motorcycle bearing registration HP22B-0889 and checked the carry bags based on suspicion. Therefore, it was a case of chance recovery, and Section 42 of the NDPS 18 does not apply to the present case. 23. It was submitted that there are material contradictions in the statements of the prosecution witnesses. Learned Trial Court dealt with this submission and held that the contradictions were not significant because of the time lapsed between the incident and the date of deposition. This was a reasonable conclusion. 24. It was submitted that the integrity of the case has not been properly established. The learned Trial Court noticed that seals on the parcel were found to be intact and there was no tampering with the case property. The fact that the seals were found intact,prima facie, suggests that there was no tampering with the case property. 25. It was submitted that the appeal is not likely to be listed soon, and the applicant is entitled to suspension of sentence on this consideration. This submission is not correct. The Roster of Criminal Appeals of the year 2024, pertaining to an under-trial prisoner, is available with this Court and considering the number of under-trial 19 prisoners, the case of the applicant is likely to be taken up soon for hearing. However, he is at liberty to approach this Court in case there is a delay in the hearing of the appeal. 26. No other point was urged. 27. In view of the above, the present application fails and the same is dismissed. 28. The observations made hereinabove are regarding the disposal of the application and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 07th August 2025 (ravinder)