IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP No. 4004 of 2024 in Cr. Appeal No. 93 of 2023 Reserved on: 20.12.2024 Date of Decision: 07.01.2025 Het Ram ...Applicant/Appellant Versus State of H.P. ...Non-applicant/respondent Coram Hon’ble Mr Justice Vivek Singh Thakur, Judge. Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the applicant/appellant : Mr. Abhishek Barowalia, Advocate. For the Respondent/State : Mr. Ramakant Sharma, Additional Advocate General. Rakesh Kainthla, Judge The applicant has filed the present application for seeking suspension of the sentence awarded by the learned Trial Court for the commission of an offence punishable under Section 20 read with Section 29 of the NDPS Act. It has been asserted that, as per the prosecution, the police had recovered 1.135 kgs of charas from one Tikkam Ram. The applicant was arrested as per the disclosure statement made by Tikkam Ram. The co-accused Nittu Ram had sold charas to Tikkam Ram @ ₹1.00 lac per kg. Tikkam Ram transferred ₹72,000/- to the applicant’s account. The applicant transferred ₹25,000/- to the account of Tikkam 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Ram’s mother and also in the account of Nittu Ram. All the accused met each other at Sarahan, where the charas was purchased by Tikkam Ram from Nittu. He also paid ₹25000/- in cash to Nittu. The prosecution case is not established. There is no evidence that the applicant had abetted the possession of charas by Tikkam Ram. There is no evidence of any conspiracy between the parties. Hence, it was prayed that the present application be allowed and the sentence imposed by the learned Trial Court be suspended. 2. The application is opposed by filing a reply and making a preliminary submission regarding the lack of maintainability. It was asserted that the learned Trial Court had convicted the applicant of the commission of an offence punishable under Section 29 of the ND&PS Act and sentenced him to undergo simple imprisonment for ten years, pay a fine of ₹ 1,00,000/- and in default of payment of fine to undergo further simple imprisonment for two years. The offence committed by the applicant affects the society at large; therefore, it was prayed that the application be dismissed. 3. We have heard Mr. Abhishek Barowalia, learned counsel for the applicant and Mr. Ramakant Sharma, learned Additional Advocate General for the respondent/State. 4. Mr Abhishek Barowalia, learned counsel for the applicant, submitted that the applicant is innocent and he was falsely implicated. 3 There is no evidence against him. Hence, he prayed that the present application be allowed and the applicant be released on bail. 5. Mr. Ramakant Sharma, learned Additional Advocate General for the respondent/State, submitted that the applicant had abetted the possession of a commercial quantity of charas and rigours of Section 37 of the ND&PS Act apply to the present case. The applicant has failed to satisfy the twin conditions laid down under Section 37 of the ND&PS Act. Therefore, he prayed that the present application be dismissed. 6. We have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was held in Dadu v. State of Maharashtra, (2000) 8 SCC 437: 2000 SCC (Cri) 1528: 2000 SCC OnLine SC 1416 that the sentence awarded under the NDPS Act can be suspended by the Appellate Court only and strictly subject to the conditions spelt in Section 37 of the NDPS Act. It was observed at page 455: “27. Holding Section 32-A as void insofar as it takes away the right of the courts to suspend the sentence awarded to a convict under the Act would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Section 37 of the Act provides: “37. Section 37 of the Act provides: “37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under 4 this Act shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.” 28. This Court in Union of India v. Ram Samujh [(1999) 9 SCC 429: 1999 SCC (Cri) 1522] held that the jurisdiction of the court to grant bail is circumscribed by the aforesaid section of the Act. The bail can be granted and the sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during the period of suspension of the sentence. The Court further held: (SCC pp. 431- 32, paras 6-8) “6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus: ‘Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it has been felt.’ (emphasis supplied) 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large 5 stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95: 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament, in its wisdom, has made effective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied.” 29. Under the circumstances, the writ petitions are disposed of by holding that: (1) Section 32-A does not in any way affect the powers of the authorities to grant parole. (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act. (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment.” 6 8. In the present case, the prosecution examined Ravi Solanki (PW7), who proved the account statement of the applicant and Tikkam Ram. The account statements show the transfer of ₹ 2000/-, ₹ 20,000/-, ₹ 25,000/- and ₹ 25,000/- on 15.08.2021 and 16.8.2021 from the account of Het Ram. This was duly credited to the account of the applicant. The accounts statement of Tikkam Ram also shows the transfer of the amount to the account of Het Ram. The account statement also shows the transfer of ₹ 25,000/- to the account of Nittu (the co-accused). These entries prima facie corroborate the version of the prosecution regarding the abetment and criminal conspiracy to purchase commercial quantities of charas. Thus, the applicant has failed to satisfy ex facie that he is not connected with the commission of a crime. 9. There is no evidence that the applicant would not commit the crime in case of his release on bail. Therefore, the present application fails, and the same is dismissed. 10. 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. (Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 7th January, 2025 (Nikita)