Ramesh Kumar Vs. State of H.P. Cr. Appeal No.158 of 2025 Reserved on: 25.04.2025 28.05.2025 Present: Mr Rajesh Kumar & Dr Om Guleria, Advocates, for the applicant/appellant. Mr. Lokender Kutlehria, Additional Advocate General, for the respondent-State. Cr. MP No.1341 of 2025 The applicant/appellant has filed the present application seeking suspension of the sentence. It has been asserted that the applicant/appellant was convicted by the learned Trial Court for the commission of offences punishable under Sections 27(b)(ii) and 28 of the Drugs & Cosmetics Act, 1940 and was sentenced to undergo rigorous imprisonment for five years, pay a fine of ₹1,00,000/- and in default of payment of fine to undergo further simple imprisonment for one year for the commission of an offence punishable under Section 27(b) (ii) of the Drugs & Cosmetics Act. He was also sentenced to undergo rigorous imprisonment for one year, pay a fine of ₹20,000/- and in default of payment of the fine to undergo further simple imprisonment for three months for the commission of an offence punishable under Section 28 of the Drugs & Cosmetics Act. Both the substantive sentences of imprisonment were ordered to run concurrently. The applicant has a prima facie case in his favour. He was on bail throughout the trial, and in case the operation of the judgment and order passed by the learned Trial Court is not suspended, the very purpose of filing the appeal would be frustrated. Hence, the application. 2. The application was opposed by filing a reply making preliminary submissions asserting that the application is not maintainable as there is no patent infirmity in the findings recorded by the learned Trial Court. The Drugs Inspector, Chamba, inspected the applicant’s shop on 24.06.2017. He found various allopathic drugs stocked on the racks for sale and distribution to the general public. The Drugs Inspector asked the applicant to produce the drugs license for purchase & sale bills or any other Certificates of a Registered Medical Practitioner of the Allopathic system of medicines. The applicant produced the certificate issued by the Vice Chancellor, Hindi Sahitya Sammelan, Allahabad & Registration Certificate issued by the State Ayurvedic & Unani Medical Council, Bihar. The qualification submitted by the applicant is not part of the Second Schedule of the Indian Medicine Central Council Act, 1970, and the applicant is not authorised to practice as a Registered Medical Practitioner and to open/run an allopathic medical shop. The applicant cannot indulge in the practice of Allopathic Medicine without a valid license. The drugs were sent for analysis. The Drugs Inspector verified the certificates from the Medical Council of India, and the applicant was not found to be registered with the Medical Council of India. The Drugs Inspector conducted the investigation and filed the complaint before the Court. The Court conducted the trial and convicted the applicant. The offences committed by the applicant are serious in nature, as the safety of the public was compromised. Therefore, it was prayed that the present application be dismissed. 3. I have heard Mr. Rajesh Kumar, learned counsel for the applicant and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent- State. 4. Mr. Rajesh Kumar, learned counsel for the applicant, submitted that the applicant had a valid Certificate, which was not verified by the competent authority. As per the answer given by the Minister of Health and Family Welfare in the Rajya Sabha, the State Government can authorise a person practising in Ayurveda, Unani, Siddha and Homoeopathy Systems to prescribe allopathic medicines. The State of Himachal Pradesh had issued such a notification, and the applicant can possess the allopathic medicines. The applicant has not been stocking/storing the medicines for sale, and there is no evidence to show such a fact. Therefore, it was prayed that the present application be allowed and the sentence imposed by the learned Trial Court be suspended. 5. Mr Lokender Kutlheria, learned Additional Advocate General for the respondent-State, submitted that the applicant has produced a certificate issued by the Vice Chancellor of Hindi Sahitya Sammelan, Allahabad, which is not recognised. He had no right to possess the medicines, and he was rightly held guilty by the learned Trial Court. Therefore, 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 the applicant was on bail throughout the trial, and 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 on 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 sentence and grant of bail. What really was 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 not seem to have kept the correct principle in view. 8. 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. 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. 9. 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: 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.” 10. 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 bail, there is a finding of guilt and the question of presumption of innocence does not arise. 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 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. This position was reiterated in Shivani Tyagi v. State of U.P., 2024 SCC OnLine SC 842, wherein it was observed: 3. Section 389 of the Code of Criminal Procedure (for short the “Cr. PC”) deals with the suspension of execution of sentence pending the appeal against conviction and release of appellant(s) on bail. The said provision mandates for recording of reasons in writing leading to the conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. The said requirement thus indicates the legislative intention that the appellate Court, invoking the power under Section 389, Cr. P.C. should assess the matter objectively, and such assessment should reflect in the order. 4. We will briefly refer to some of the relevant decisions dealing with Section 389, Cr. P.C. In the case of short-term imprisonment for conviction of an offence, suspension of sentence is the normal rule, and its rejection is the exception. (See the decision in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421). However, we are of the considered view that the position should be vice- versa in the case of conviction for serious offences when the invocation of power under Section 389 is invited. This Court, in the decision in Kishori Lal v. Rupa (2004) 7 SCC 638, held in paragraphs 4 and 5 thus:— “4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering the suspension of execution of the sentence or order appealed against. If he is in confinement, the said Court can direct that he be released on bail or his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects, and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate Court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of an allegation of misuse of liberty during the earlier period when the accused-respondents were on bail.” 5. In the decision in Anwari Begum v. Sher Mohammad (2005) 7 SCC 326, this Court in paragraphs 7 and 8 held thus: — “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 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.” 12. 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 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 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.” 13. Therefore, the applicant can be released on bail if it is shown that his appeal is likely to succeed on merits. 14. It was laid down by the Hon’ble Supreme Court of India in Rajasthan Pradesh Vaidya Samiti v. Union of India, (2010) 12 SCC 609: 2010 SCC OnLine SC 649, that Hindi Sahitya Sammelan Allahabad is not a university. It is a Society registered under the Societies Registration Act, 1860, and mere inclusion of the name of a person in the State Register is not enough to make him eligible to practice. It was observed: - 51. At the cost of repetition, it may be pertinent to mention here that in view of the above, we have reached the following inescapable conclusions: (I) Hindi Sahitya Sammelan is neither a university/deemed university nor an educational board. (II) It is a society registered under the Societies Registration Act, 1860. (IV) No school/college imparting education in any subject is affiliated with it. Nor Hindi Sahitya Sammelan is affiliated with any university/board. (V) Hindi Sahitya Sammelan has had no recognition from the statutory authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the 1970 Act, and further did not seek modification of Entry 105 in Schedule II to the 1970 Act. (VI) Hindi Sahitya Sammelan only conducts examinations without verifying whether the candidate has some elementary/basic education or has attended classes in Ayurveda in any recognised college. (VII) After the commencement of the 1970 Act, a person not possessing the qualifications prescribed in Schedules II, III and IV to the 1970 Act is not entitled to practise. (VIII) Mere inclusion of the name of a person in the State Register maintained under the State Act is not enough for making him eligible to practise. (IX) The right to practise under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19(6) of the Constitution. (X) Restriction on practice without possessing the requisite qualifications prescribed in Schedules II, III and IV to the 1970 Act is not violative of Article 14 or ultra vires to any of the provisions of the State Act. 15. Therefore, prima facie, it is difficult to rely upon the Certificate issued by Hindi Sahitya Sammelan, Allahabad, to hold that the applicant has a right to practice in the allopathic system of medicines. 16. It was submitted that the Drugs Inspector had not verified the license of the applicant from the competent authority, and the inquiry was made from the Indian Medical Council, which is not sufficient. This submission cannot be accepted. Once the Hon’ble Supreme Court held that Hindi Sahitya Sammelan Allahabad is not a University/Deemed University but only a Society which does not impart education to any person, a mere failure to verify the degree/diploma of the applicant will not assist the applicant. 16. Reliance was placed upon the answer given by the Ministry of Health and Family Welfare. However, no notification issued by the State Government permitting an Ayurvedic Practitioner to possess Allopathic Medicines was brought on record. Therefore, no advantage can be derived from the written answer given by the Ministry in the present case. 17. The judgment of the learned Trial Court shows that the accused admitted that he was running a clinic, and the samples were drawn from Allopathic Medicines. He admitted that the samples were prepared as per the Rules. His defence that he was a Medical Practitioner was negated. Prima facie, the applicant has failed to establish any material to show that he is a registered medical practitioner. 18. It was submitted that no person was harmed by any medicine prescribed by the applicant. Therefore, the applicant was wrongly convicted. This submission is only stated to be rejected. The provision of law does not require harm to any person, but a license for stocking the drugs. Therefore, the fact that no person was harmed is immaterial in the present case. 19. 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 as well. This submission is not correct. The Roster of Criminal Appeals for the year 2024, pertaining to an under-trial prisoner, is available with this Court and considering the number of under-trial 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 an unreasonable delay in the hearing of the appeal. 20. No other point was urged. 21. Consequently, the present application fails, and the same is dismissed. The observation made hereinabove shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case. Cr. Appeal No.158 of 2025 Call for the records. List the matter for hearing expeditiously. (Rakesh Kainthla) Judge 28th May 2025 (Shamsh Tabrez)