Rajesh Kumar @ Raka Vs. State of H.P. Cr. Appeal No. of 2025 07.03.2025 Present: Mr. Ashok Kumar, Advocate for the applicant/appellant. Ms. Ranjna Patial, Deputy Advocate General, for the respondent. Cr. MP(M) No.86 of 2025 Applicant-Rajesh Kumar @ Raka has filed the accompanying appeal against the judgment of conviction and order of sentence dated 06.01.2021, passed by the Court of learned Special Judge, Hamirpur, District Hamirpur, H.P. (hereinafter referred to as ‘the trial Court’), in Sessions Trial No.07 of 2020, titled as State of Himachal Pradesh versus Rajesh Kumar @ Raka. 2. By way of the judgment of conviction and order of sentence, as aforesaid, the applicant has been convicted for the offence punishable under Section 20(b)(ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) and sentenced to undergo rigorous imprisonment, for a period of 6½ years and to pay a fine of Rs.65,000/-. In default of payment of fine, he has further been directed to undergo simple imprisonment for a period of seven months. 3. Since, the accompanying appeal has been filed, by the applicant, after the prescribed period of limitation, as such, the present application, under Section 5 of the Limitation Act, has been filed for condonation of 2 years, 6 months and 24 days’ delay, as occurred, in filing the same, mainly on the ground that the applicant was lodged in jail for serving out the sentence and was not in a position to engage a lawyer for filing the appeal. 4. It is the further case of the applicant that only, in the month of October, 2024, when, he has contacted his mother, then the present appeal has been filed. 5. Another ground, put forth for condonation of delay is that when the counsel has inspected the file and asked the reason for not preferring the appeal within time, then, it was told that the applicant was under the impression that firstly, he has to complete the imprisonment in earlier case and thereafter, he could file the case against the judgment of conviction and order of sentence passed in this case. 6. On the basis of the above facts, a prayer has been made to condone the delay. 7. Along with the application, certificate of imprisonment issued by the Superintendent Jail, Model Central Jail, Kanda, has also been annexed. 8. When put to notice, the application has been contested by the State by denying the factual position and it has been mentioned that the delay in filing the present appeal is not bona fide, but, intentional, hence a prayer has been made to dismiss the application. 9. Heard. 10. The applicant is undergoing sentence in case, arising out of FIR No.227/2018, in which he has been sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/- and in default of payment of fine, he has further been directed to undergo imprisonment for one one year. 11. It has also been mentioned in the certificate of imprisonment that the substantive sentence imposed upon the has expired on 22.09.2024 and the sentence imposed in default of payment of fine was kept in abeyance as convict did not pay the fine amount. It has also been mentioned that the sentence in the second case commenced w.e.f. 23.09.2024. 12. Since, the applicant was in custody and no useful purpose would be achieved by him, in not preferring the appeal within time, had he not been prevented to do so, by the circumstances mentioned in the application, the application under consideration is allowed and the delay in filing the accompanying appeal is condoned. The application stands disposed of. Cr. Appeal No. of 2025. 13. Vide order of the even date, passed in Cr.MP(M) No. 86 of 2025, the delay in filing the appeal has been ordered to be condoned, as such, the appeal be registered. 14. Admit. Call for the records. Cr.MP No.546 of 2025 15. By way of the present application, indulgence of this Court has been sought to suspend the order of sentence dated 06.01.2021, passed by the learned trial Court. 16. The accompanying appeal, preferred by the appellant-applicant, has been admitted and the disposal of the same will take sufficient long time. 17. As per the averments in the application, the appellant-applicant has undergone the sentence of about 4 years, out of the total sentence 6 ½ years. 18. If, the facts and circumstances of the present case are seen in the light of the decisions of the 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’, then, the sentence, imposed by the learned trial Court, which is for 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.” 19. 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 re-appreciating the evidence. The emphasis is on the word “palpable” and the expression “apparent on the face of the record”.” 20. Being guided by the decisions of the Hon’ble Supreme Court, the sentence, which falls within the definition of ‘sentence of fixed term’, in this case, is liable to be suspended. 21. Consequently, application, under consideration is allowed and the order of sentence dated 06.01.2021, passed by the learned trial Court, is ordered to be suspended, 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, with the learned trial Court, within a period of eight weeks from today, if any, already deposited by the applicant. (iii) The applicant shall not leave the territory of India without the prior permission of the Court. 22. Application is, thus, disposed of. (Virender Singh) Judge March 07, 2025 (ps)