IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP No.5073 of 2025 and Cr.MP. No.5074 of 2025 in Cr.Appeal No. 370 of 2022 Reserved on 24.11.2025 Date of Decision: 09.12.2025 _________________________________________________ 1. Cr.MP No.5073 of 2025 Ashwani Kumar ...Applicant Versus State of H.P. through Principal Secretary(Home) to the Government of H.P. ...Respondent. 2. Cr.MP No.5074 of 2025 i) Ashwani Kumar ii) Vishal Kumar @ Lovely ….Applicants. Versus State of H.P. through Principal Secretary(Home) to the Government of H.P. …….Respondent Coram Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the applicant(s): Mr. George, Advocate. For the respondent: Mr. Raj Negi, Deputy Advocate General. ___________________________________________________ Romesh Verma , Judge Since both these applications arise out of a common judgment of conviction dated 24.08.2022 and order of sentence dated 25.08.2022, passed by the learned 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Special Judge-II, Hamirpur, H.P, hence these were taken up together for consideration and are being disposed of by way of a common order. 2. The present order shall dispose of two separate applications filed by the appellants /applicants for the suspension of sentence, who have been convicted and sentenced by the learned Special Judge (II) Hamirpur, HP under Section 20 of the Narcotics Drugs & Psychotropic Substances Act, 1985. (For short ‘ NDPS Act’) in case FIR No.79/2019 dated 03.05.2019, registered at Police Station Hamirpur, H.P. 3. It has been contended by the learned counsel for the applicants that they have got a strong prima-facie case in their favour and in all eventualities, the present appeal is likely to be allowed and that the applicants have been falsely roped in a case in which they have got no role to play. It is submitted that they have already completed half incarceration of the maximum sentence awarded under Section 20 of the NDPS Act. He also submitted that there are fair chances of acquittal, therefore, under such 3 circumstances, the applications deserve to be allowed and they should be released on bail. 4. On the other hand, learned Deputy Advocate General, appearing for the respondent-State has vehemently opposed the applications filed by the applicants for suspension of sentence during the pendency of Criminal Appeal on the ground that the learned Special Judge(II) Hamirpur, vide its judgment/order dated 24.08.2022/25.08.2022 after appreciating the entire record, oral as well as documentary evidence has rightly convicted the applicants by sentencing them to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1,00,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of one year each for the commission of offence punishable under Section 20 of the NDPS Act. Learned Deputy Advocate General for the State further submits that the applicants are involved in heinous crime and keeping in view the scenario in today’s date, which impacts the society at large, no leniency can be shown to the applicants and the present applications being devoid of merits deserve to be rejected. 4 5. From the head notes of the applications, it is clear that the present application is the 6th application filed by applicant-Ashwani Kumar for suspension of sentence, whereas, applicant-Vishal Kumar @ Lovely has filed the application for the second time for suspension of sentence. 6. The record shows that on 5th December, 2020, this Court vide its order passed in Cr.MP No. 3214 of 2022, dismissed, the application on the ground that since commercial quantity of the contraband was recovered from the applicants, therefore, no ground for suspension of sentence is made out. 7. Another application being Cr.MP No. 4331 of 2023 was filed for suspension of sentence by the applicant Ashwani Kumar. This Court on 01.12.2023 ordered that since there are no changed circumstances and the earlier application for suspension of sentence had been dismissed, therefore, taking into consideration the fact that the applicant was convicted for the conscious possession of the commercial quantity of the contraband, therefore, the said application was also dismissed. 5 8. On 28.05.2024, another application being Cr.MP No.2034 of 2024, for suspension of sentence was filed by the appellant/ applicant No.1. The said application was posted for hearing on 08.08.2024 and thereafter on 05.11.2024, it was ordered that the said application be taken up along with the main appeal . Thereafter Cr.MP No.114 of 2025 was filed for suspension of sentence and vide its order dated 27.02.2025, the same was dismissed as not pressed. 9. Another application bearing Cr.MP No. 735 of 2025 was filed and finally the present applications bearing Cr.MP Nos.5073 and 5074 of 2025 for suspension of sentence have been filed. 10. We have heard Mr. George, learned counsel for the appellants/applicants and Mr. Raj Negi, learned Deputy Advocate General, for the respondent-State. 11. It is contended by the learned counsel for the applicants that since there is non compliance of Section 50 of the NDPS Act, therefore, on that ground the present applicants are entitled for the relief for the suspension of sentence. He further submits that there is also non compliance of provision of Section 42(2) of the ND&PS Act, 6 therefore, this is a fit case of acquittal and entitles the applicants for the grant of bail. Further, he submits that disposal of main appeal will take some time. Under such circumstances, the present applications deserve to be allowed. 12. Learned counsel for the applicants has relied upon the following judgments: i) Cr. Appeal titled as Nadeem Ahamed vs The State of West Bengal decided on 5 August, 2025.arising out of SLP (Crl.) No (s).9446-9447 of 2025. ii) Criminal Appeal No.1474 of 2025, titled as Surepally Srinivas vs. The State of Andhra Pradesh (now State of Telangana, decided on 25.03.2025. iii) Special Leave Petition (Criminal) No(s) 14265 of 2024 titled as Surepally Srinivas vs. The State of Andhra Pradesh (now State of Telangana. iv) Cr. Appeal No. 136 & 184 of 2021, titled as Sanju vs Ste of H.P. decided on 07.08.2023 v) Criminal Appeal No.4149 of 2013, titled as State of H.P. vs. Suresh Kumar, decided on 13.11.2024 vi) Criminal Appeal No. 78 of 2005, titled as State of Rajasthan vs. Parmanand & Anr. Vii) Criminal Appeal No. 141 of 2015,titled as State of H.P. vs. Vikram alias Vicky,decided on 04.03.2025; and viii) CRM-M No.35417of 2022, titled as Daler Singh vs. State of Punjab, decided on 18.08.2022. 7 13. The prosecution has examined PW-9 Naresh Kumar No.43 SIU Hamirpur, District Hamirpur. In his statement he has stated that he was posted as Head Constable in SIU Hamirpur since, December 2014. On 03.05.2019, he alongwith Head Constable Balbir Singh No. 5, HHC Rajesh Kumar No. 237, constable Lalit Kumar No. 195 and constable Yogesh Chauhan No. 98, in connection with patrolling was present at Bhota Chowk and at about 7.30 a.m. he received a secret information that Ashwani Tomar, a resident of House No. 216, Ward No. 8, Hamirpur, in his car No. HP-22-D-1540, was transporting charas from Bhota side towards by-pass road Hamirpur. He has stated that on receiving secret information, he sent information Ex. PW6/A under Section 42(2) of ND&PS Act to Superior Officer through constable Yogesh Kumar No. 98. Thereafter, he alongwith other police officials, in his private vehicle HP-21C-0143, rushed to by-pass road Hamirpur and laid a Naka at Lalhari bridge. He has also stated that at about 8.00 a.m., a car bearing no. HP-22B-7246 came from Baral side which was stopped by him. It is stated that two persons were sitting in the said car. On inquiry, the driver of 8 the car divulged his name as Sandeep Kumar and other occupant told his name Som Nath. He told them about the secret information and associated them in the investigation. It is stated that at about 8.30 a.m., one white coloured car No. HP-22D-1540 came from Matansidh by-pass side which was signaled to stop. The car was stopped at a distance of 20 meters and two persons were traveling in the said car. It is stated that on inquiry,the driver of the car divulged his name as Ashwani Kumar @ Malli, son of Sita Ram, House .No. 216, Ward No. 8, Hamirpur and other occupant divulged his name as Vishal Kumar @Lovely, son of Sanjay Kumar. The search was conducted and both accused vide consent memo Ext. PW9/A consented to give their personal search before a Gazetted Officer. The memo was signed by the accused as well as witnesses Sandeep Kumar and Som Nath. Thereafter, Deputy S.P. Hitesh Lakhan Pal in his vehicle came on the spot. It is stated that personal search of both the accused was conducted in the presence of Deputy S.P. Hitesh Lakhanpal and on search of accused Ashwani Kumar, one mobile phone, Adhar Card and currency notes were recovered, which were taken into 9 possession. On personal search of accused Vishal Kumar @Lovely, mobile phone and currency notes were also recovered. Thereafter, the search of the car No. HP-22D- 1540 was conducted and on search one red and Grey pithu bag was found under the driver seat. On checking the pithu bag, five packets wrapped with khakhi cello tape were found therein. On checking of all the five packets, black coloured substance in the shape of sticks wrapped with poly wrapper was found therein. It is also stated that on smelling and on the basis of experience, the said substance was found to be charas. Thereafter he weighed all the packets separately with the help of electronic weighing scale. On weighing, total 5.068 gram charas was found. 14. The statement of PW-9 has been corroborated by PW-1 Constable Yogesh Chand No.98, who has stated that on receiving secret information, H.C Naresh kumar sent information under Section 42(2) of ND&PS Act through him to Dy S.P. Head Quarter. Similarly,PW-6 Pawan Kumar has stated that Dy S.P. Hitesh Lakhanpal handed over copy of information under Section 42 of the NDPS Act to him. The copy of information is Ext.PW6/C. 10 15. PW-11 HHC Rajesh Kumar has stated in his statement that Head Constable Naresh Kumar received secret information and he prepared information under Section 42(2) of NDPS Act and sent the same to Superior Officer through Yogesh Kumar. 16. PW-13 Hitesh Lakhanpal is Deputy SP and he has stated that on 03.05.2019,Constable Yogesh Kumar came to his residence at 8.00 a.m.with information under Section 42(2) of NDPS Act sent by Head Constable Naresh Kumar whereby it was informed that accused Ashwani Kumar in his car HP- 22B-1540 was coming from Bhota to By-pass side and he was transporting charas in the same. He made endorsement on information Ex. PW6/A which is in red circle. 17. Similarly, PW-15 H.C. Balbir Singh has stated that H.C Naresh Kumar prepared the information under Section 42(2) of ND & PS Act and the same was sent to Superior Officer through Constable Yogesh Kumar. 18. All the witnesses in one voice have stated that information under Section 42(2) of NDPS Act was sent by PW-9 Naresh Kumar Ext.PW6/A to Superior Officer Deputy S.P. Hitesh Lakhanpal through Constable Yogesh Kumar. 11 The submission of learned counsel for the applicants is that the Deputy S.P. is not the immediate Superior Officer of PW-9. As per mandate, the information was to be sent to the Superior Officer of the rank of Gazetted Officer, who was empowered to authorize the search of seizure under Section 41 of ND & PS Act and Deputy SP being Gazetted Officer satisfies the general requirement of Superior Officer in the present case, therefore, the submission of learned counsel that the information has not been given to the authorized officer does not hold good for making a case for suspending the sentence at this stage. 19. The contention of learned counsel for the applicants is that since the personal search of the applicants/appellants as well as search of Pithu bag was conducted by the police officials, therefore, there is non compliance of Section 50 of ND&PS Act. To his contention, there is an answer by the Hon’ble Apex Court in its judgment titled as Ranjan Kumar Chadha vs. State of Himachal Pradesh 2023 (13)SCALE,478 48. “This Court ultimately summed up its findings with the following ten conclusions reproduced below:- 12 “57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the 13 procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any 14 opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; 15 (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in State of H.P. v. Pirthi Chand, (1996) 2 SCC 37, and State of Punjab v. Jasbir Singh, (1996) 1 SCC 288, case are not in tune with 39 the correct exposition of law as laid down in Pooran Mal's case.” (Emphasis supplied). 20. On the perusal of the said judgment, it is clear that the provisions of Section 50 of the ND&PS Act are not applicable in the intending facts and circumstances of the case. Therefore, submission of the learned counsel for the applicants that provisions of Section 50 of the ND&PS Act have not been complied does not attract in the present case. 21. As far as the contention of the learned counsel for the applicants that the disposal of the main appeal will take some time is concerned, it would be noticed that when the case was listed on 08.04.2025, it was ordered that instead of deciding the application for grant of bail, it would be appropriate if the main appeal is heard. Thereafter, the case was listed on 13.05.2025, 20.05.2025, 21.05.2025, 22.05.2025 and 26.05.2025. On 05.08.2025, the main appeal was heard in part and thereafter for continuation, the case was fixed on13.08.2025. Thereafter, 16 on 29.08.2025, the case was heard further and for continuation, it was posted on 10.09.2025. On 10.09.2025, arguments on behalf of the appellants were concluded and, for continuation, the case was fixed on 23.09.2025. On 23.09.2025, on the request of the learned Deputy Advocate General, for continuation, the case was posted on 06.11.2025. On 06.11.2025, for reconstitution of the Bench, the matter was adjourned for hearing afresh and case was fixed for final hearing on 24.11.2025 and thereafter the present applications have been filed. The present appeal is already on hearing board. Therefore, the contention of the learned counsel for the applicants that the appeal shall take some time for its adjudication is not correct. 22. We are of the considered opinion that for the purpose of adjudicating and deciding the present applications for suspension of sentence, learned counsel for the applicants at this stage has failed to make out a case to show that there are fair chances of acquittal. 23. The Hon’ble Supreme Court in Preet Pal Singh vs. State of Uttar Pradesh (2020) 8 SCC 645 has held as follows:- “35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension 17 of sentence under Section 389 CrPC and 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. (2018) 3 SCC 22 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 attracted, once there is conviction upon d 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 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. 24. In State (NCT of Delhi) Narcotics Control Bureau vs. Lokesh Chadha (2021) 5 SCC 724, the Hon’ble Apex Court held as follows: 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 Uttar Pradesh3 where Justice Indira Banerjee, speaking for the Court, observed as follows: “35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be 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. and Anr. (supra). 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 attracted, once there is 18 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 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) of the Cr.P.C.” 25. In view of above discussion, judgments referred by the learned counsel for the applicants/appellants are of no help to the appellants. 26. Therefore, we are of the opinion that no case is made out for the suspension of sentence at this stage, therefore, both the applications are dismissed. 27. It is made clear that the observations as made here- in-above are only meant for adjudication of the present applications for suspension of sentence and they will have no bearing on the merits of the case which shall be decided independently on its own merit. Cr.Appeal No. 370 of 2022 28. List the main appeal for final hearing on 07.01.2026. ( Vivek Singh Thakur) Judge (Romesh Verma) Judge December 09, 2025(veena) 19