2025:HHC:39271 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP No. 3467/2025 in Cr. A. No. 521/2024 Reserved on: 11.11.2025 Decided on: 19.11.2025 Sunita Rana & anr. …..Appellants Versus State of H.P. ….Respondent ______________________________________________________________ Coram: The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the Appellants/Applicant No.2: Mr. Ravinder Singh Chandel, Advocate. For the Respondent: Ms. Sharmila Patial, Addl. A.G. Romesh Verma, Judge This order shall dispose of an application filed by the appellant No.2\applicant, Prem Prakash under Section 430 of Bhartiya Nagrik Suraksha Sanhita for suspension of 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 sentence, as passed by the learned Special Judge Shimla vide judgment dated 27.7.2023, during the pendency of the appeal, whereby the applicant was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- for offence punishable under Section 20 (ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and in default of payment of fine, to further undergo simple imprisonment for a period of one year. 2 It has been submitted by the learned counsel for the applicant that the applicant has got a strong prima facie case in his favour and there is warranting evidence for the acquittal of the applicant. It has been further submitted that the applicant is behind the bars from the date of his arrest i.e. 12.3.2022 and as such total period of actual sentence undergone by the applicant as on date is 3 years 4 months 11 days, therefore, he has sought suspension of sentence during the pendency of the appeal. 3 We have heard Mr. Ravinder Singh Chandel, Advocate, appearing for the applicant and Ms. Sharmila Patial, learned Additional Advocate General, appearing for the 3 respondent-State and have also scanned the record for the purpose of the present application. 4 The main contention of the learned counsel for the applicant is that the applicant is not involved in the present case in any manner. He has contended that as regards the applicant, the provisions of Section 29 of the Act are not attracted in the present case. The applicant is not involved in the present case in any manner and no question of criminal conspiracy arises in the case. Moreover, he has urged that the evidence qua that effect is lacking in order to prove any kind of abetment and criminal conspiracy in the commission of the offence under the Act. 5 Perusal of Rukka, Ext. P46/PW13 depicts that on 12.3.2022, HC Manoj Kumar along with Constable Neeraj and Constable Rajeev in order to check traffic and detect crime went in their private vehicle to inspect the areas of Khallini, Panthaghati, Malyana, Dhalli etc. At about 11:40 A.M., when they were at Panthaghati Chowk, a secret information was received by them that one Nepali male, whose name is Prem Prakash accompanied by Nepali female, whose name is Sunita Rana, are coming on foot from Dhobighat towards SJVNL 4 colony and might be carrying “charas”. After complying with provisions of Section 42(2) of the Act, the police party reached the spot and two independent witnesses, namely, Kuldeep Thakur and Bhupinder Thakur were also associated. At the relevant time, both the accused were coming together and Sunita Rana was carrying one ‘pithu’ bag (rucksack) on her back. After ascertaining their identity and names, as aforesaid, the bag was searched and on checking the same, black coloured substance was found. The substance, as per experience of the police party, was identified to be cannabis and on weighing it was found to be 1.310 kg. 6 To the similar extent, averments have been incorporated against both the accused persons in the FIR, Ext. P27/ PW7. 7 In order to substantiate its case, the prosecution has examined independent witness, namely Kuldeep Thakur, as PW4, who deposed that he is Counselor of Ward No.25 (Malyana). He stated that he was called by the police at Bakhurai and at the relevant time, Bhupinder Thakur was also accompanying him. The police party had apprehended Nepali male and female. He further deposed that the police had 5 recovered black backpack (Pithu). The said bag was opened and checked by the police in his presence, which led to recovery of contraband. 8 In his cross-examination, he deposed that he does not know to whom the black “Pithu” bag belonged, however he denied the suggestion that the case property mentioned above was not recovered from the accused persons in his presence. 9 To the similar extent is statement of LC Sulekha, who stepped into the witness box as PW5. She deposed that the accused persons were apprehended by the police and they were present on the spot. She deposed that accused Sunita Rana was carrying black coloured bag. She searched the bag in presence of independent witnesses and police officials, leading to recovery of plastic transparent packet containing brown colour solid substance in the form of small balls. The said substance was confirmed to be charas (cannabis), which on weighing was found to be 1.310 kgs. 10 PW6 Constable Neeraj also deposed that they were on routine patrolling duty towards Khalini, Panthaghati, Malyana and Dhalli etc. At about 11:40 A.M., they were present at Panthaghati Chowk, where secret information was 6 conveyed to HC Manoj Kumar regarding the fact that one Nepali national named Prem Prakash and Nepali woman were present near SJVNL Colony/Office-Dhobhi Ghat road and were carrying contraband and their search can lead to recovery thereof. 11 PW12 Constable Rajeev has also reiterated the prosecution story and deposed that a secret information was received that two persons of Nepali origin, resident of Dhobighat are in possession of huge quantity of charas Thereafter provisions of Section 42(2) of the Act were complied with and raiding party was constituted by associating Kuldeep Thakur and Bhupinder Thakur, as independent witnesses. Names and identity of the accused persons were ascertained. The accused persons were carrying a black coloured bag and when said bag was opened, it was found to be containing a transparent plastic packet containing black colour substance. The said substance was weighed and found to be 1.310 kg. It was charas in the form of small balls. 12 PW13 HC Manoj has also deposed as per prosecution story, whereby he stated that he proceeded towards SJVNL Colony and reached there at about 12:30 P.M. and 7 spotted the accused persons coming on foot from Dhobighat side. Names and identity of the accused persons were ascertained and thereafter search of the bag was conducted and on opening the same, recovery of one plastic transparent bag containing black coloured substance in the form of small balls was effected. Such substance was indentified as charas/cannabis. 13 From the perusal of the oral as well as documentary evidence placed on record, it cannot be presumed or arrived at a conclusion at this stage that the submissions, as have been made by the learned counsel for the applicant are correct. 14 Learned counsel for the applicant has only submitted that the provisions of Section 29 of the Act are not attracted in the present case since there is no material on record to show any kind of conspiracy in the commission of offence under the Act, however, perusal of the aforesaid evidence clearly shows that the accused persons were noticed by the police party coming from Dhobighat side towards SJVNL colony on foot. At that time, appellant No.1 was carrying rucksack on her bag and she was duly accompanied by the applicant (appellant No.2), therefore, submission of the learned 8 counsel for the applicant does not appear to be probable and correct. 15 Learned counsel for the applicant could not point out any illegality or irregularity in the impugned judgment, which prima facie may lead to suspension of sentence at this stage. 16 Moreover, for the purpose of determination of the present application, presence of the applicant in the commission of the offence is linked by the prosecution by leading oral as well as documentary evidence placed on record. 17 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 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. (2018) 3 SCC 22 However, 9 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.” 18 In State (NCT of Delhi) Narcotics Control Bureau vs. Lokesh Chadha (2021) 5 SCC 724, the Hon’ble Supreme Court has held as under:- “9 While considering the rival submissions, we must at the outset advert to the manner in which the learned Single Judge of the High Court has dealt with the application for suspension of sentence under Section 389(1) of CrPC. The offence of which the respondent has been convicted by the Special Judge arises out of the provisions of Sections 23(c) and 25A of the NDPS Act. The findings of the learned Special Judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a 10 foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine. Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act.” 19 In view of aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant application and the same is accordingly dismissed. 20 Before parting, it is made clear that any observation made here-in-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be 11 adjudicated upon uninfluenced by any observation made here- in-above, which are only for the purpose of the instant application. (Vivek Singh Thakur) Judge (Romesh Verma) 19.11.2025 Judge (pankaj)