Bhavesh Kumar vs. State of H.P. Cr.MP(M) No.2537 of 2025 11.11.2025 Present: Mr. Nitish, Advocate, vice Mr. Karan Kapoor, Advocate, for the applicant. Mr. H.S. Rawat and Mr. Mohinder Zharaick, Additional Advocates General, with Mr. Rohit Sharma and Ms. Ranjna Patial Deputy Advocates General, for the respondent/State. Cr.MP(M) No.2537 of 2025 Applicant-Bhavesh Kumar has preferred the accompanying Criminal Appeal, against the judgment of conviction and order of sentence dated 05.08.2025, passed by the Court of learned Special Judge-II, Chamba, District Chamba, H.P. (hereinafter referred to as the ‘trial Court’), in NDPS Trial No.45 of 2021, titled as ‘State of H.P. Vs. Bhavesh Kumar.’ 2. Vide judgment of conviction and order of sentence, as referred to above, the learned trial Court has convicted the applicant for the offence, punishable under Sections 20(b)(ii)(B), of the NDPS Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of two and half year and to pay a fine of Rs.20,000/-. In default of payment of fine, he has been further undergone to rigorous imprisonment for a period of four months. 3. Since, the accompanying appeal has been preferred after the prescribed period of limitation, as such, the present application has been moved for condonation of delay of 66 days, in preferring the accompanying appeal. 4. The main ground, upon which, the condonation of delay has been sought, in this case, is that after the decision of the judgment, passed by the learned trial Court, Power of Attorney has not been provided by the present applicant to his counsel and the same has been provided at belated stage. 5. On the basis of above facts, a prayer has been made to allow the application, by condoning the delay. 6. When, put to notice, State/respondent has filed the reply, denying the factual position, as asserted in the application. 7. Heard. 8. Considering the peculiar facts and circumstances of the present case, this Court is satisfied that the applicant is not going to achieve anything in not preferring the Criminal Appeal, within the prescribed period of limitation, had he not been prevented to do so, for the reasons, as mentioned, in the application. 9. Consequently, the present application is allowed and the delay of 66 days in filing the accompanying Criminal Appeal is ordered to be condoned. 10. Application is, thus, disposed of. Cr. Appeal No._______ of 2025 11. Vide order of the even date, passed in Cr.MP(M) No.2537 of 2025, the delay in filing the Criminal Appeal has been ordered to be condoned. 12. Be registered. 13. Admit. 14. Call for the records. Cr.MPST No.9681 of 2025 15. By way of the present application, indulgence of this Court has been sought to suspend the order of sentence dated 05.08.2025, passed by the Court of learned trial Court. 16. The present appeal, preferred by the applicant, has been admitted for hearing and it will take sufficient long time, for its decision. 17. The sentence, which has been imposed by the learned trial Court, in this case, falls within the definition of ‘fixed term sentence’ and according to 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’, the sentence, imposed by the learned trial Court, which falls within the definition of ‘fixed term sentence’, can 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.” 18. Relevant paragraph 7 of the judgment in Bhupatji Sartajji Jabraji Thakor’s case (supra), is reproduced, as under:- “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 reappreciating the evidence. The emphasis is on the word “palpable” and the expression “apparent on the face of the record”. 19. In view of the above, the application, under consideration is liable to be allowed. Consequently, the application is allowed and the order of sentence dated 05.08.2025, 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 four weeks from today, if not already deposited. (iii) The applicant shall not leave the territory of India without the prior permission of the Court. 20. Application is, thus, disposed of. 21. A copy of this order be sent to the learned trial Court, with a direction that the report of compliance of this order be submitted to this Court. (Virender Singh) Judge November 11, 2025 (subhash)