( 2025:HHC:15762 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No. 774 of 2025 in Cr. Appeal No. 191 of 2023 Reserved on: 16.05.2025 Decided on: 26 .05.2025 _____________________________________________________ Gulab Singh …..Applicant/Appellant. Versus State of Himachal Pradesh ……Non-applicant/Respondent. _____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? No. _____________________________________________________ For the applicant/appellant: Mr. George, Advocate. For the non-applicant/State: Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General. Sushil Kukreja, Judge. This order shall dispose of an application filed by the applicant/appellant under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking suspension of sentence awarded by the learned Special Judge-II, Shimla, H.P., vide judgment of conviction and order of sentence, dated 28.03.2023, in CIS Regd. No. 71 of 2020, for the commission of offence punishable under Section 20 of the Narcotic Drugs & 1 Whether reporters of Local Papers may be allowed to see the judgment? 1 ( 2025:HHC:15762 ) Psychotropic Substances Act, 1985 (for short“the NDPS Act”), whereby, the applicant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- and in default of payment of fine to undergo imprisonment of similar description for a period of two years. 2. Learned counsel for the applicant/appellant contended that that memos Ext. PW-3/A, Ext. PW-3/B and NCB form, Ext. PW-10/A were prepared, as alleged by the Investigating Officer, before the registration of FIR, Ext. PW-1/J, on the basis of rukka, Ext. PW-10/B and these documents were written by the Investigating Officer, in one go. He further contended that all these three documents were written with one pen and ink and also in the same handwriting and it cannot be ascertained whether these three documents were prepared before the registration of FIR or after the registration of the FIR in Police Station, therefore, integrity and sanctity of these important documents is highly doubtful. He also contended that the photographs, Ext. PW-5/A-1 to Ext. 5/A-10 reveal that the Investigating Officer had in his hand a red and yellow coloured carry bag in Ext. PW-5/A-1 and Ext. PW-5/A-2 and thereafter, photographs, Ext. PW-5/A-3, Ext. PW-5/A-4 & Ext. PW- 5/A-5 were taken to adjust the story of the prosecution and the primary evidence of the photographs i.e. the mobile phone through 2 ( 2025:HHC:15762 ) which these photographs were taken was not produced before the Court nor any witness was examined to prove the fact that the photographs were developed in the lab. He next contended that as per the prosecution case, the alleged contraband was recovered from the bushes on the roadside near Baloda in a red and yellow coloured carry bag and on opening, it was found containing another carry bag of silver and red coloured from which charas was recovered. However, during inventory proceedings, in presence of the Magistrate, only red and silver coloured carry bag were produced and this fact has been mentioned by the learned JMIC Chopal in order of Inventory Proceedings, Ext. PW-11/C, dated 15.05.2020, as such, the prosecution has failed to prove as to for what reason colour of the two carry bags has changed. Further, the colour of the red and yellow carry bag was found to be multicoloured zip carry bag when it was opened by the Assistant Chemical Examiner in the laboratory at Junga, thus, there is serious doubt on the integrity and sanctity of the material sent to the laboratory. The prosecution has failed to prove the actual colour of the bag recovered from the spot, as according to the Investigating Officer the bag recovered was ‘Red and Yellow’ coloured, whereas, in the order of the Magistrate its colour has been mentioned as ‘Red’ and in laboratory the colour of the bag 3 ( 2025:HHC:15762 ) has been mentioned as ‘multicoloured’ zip carry bag. He further contended that HC Rajeev, who was holding the charge of MHC, Police Station Chopal recorded GD report No. 33, 43 & 51, dated 14.05.2020. He further recorded GD entries No. 28, 31 & 35, dated 15.05.2020. He also recorded FIR with the help of police station computer, however, he did not furnish the required certificate as per the provisions of Section 65-B of the Indian Evidence Act, as such, the electronic evidence which he has produced cannot be read in evidence. He, therefore, submitted that since the applicant remained in custody for the last more than five years, his sentence deserves to be suspended. 3. On the other hand, learned Additional Advocate General contended that the applicant/appellant is not entitled to be released on bail during the pendency of the present appeal, as he has been convicted in a serious offence after a full fledged trial. 4. We have heard the learned counsel for the applicant/appellant as well as learned Additional Advocate General for the non-applicant/State and have also gone through the material available on record. 5. From the perusal of the record, prima facie, it can not be ascertained as to whether the memos Ext. PW-3/A Ext. PW- 3/B, and NCB form, Ext. PW-10/A were prepared before the 4 ( 2025:HHC:15762 ) registration of FIR or after the registration of the FIR in Police Station which creates a serious doubt about the timing of preparation of these documents. The primary evidence of the photographs Ext. PW-5/A-1 to Ext. 5/A-10 i.e. the mobile phone through which these photographs were taken was not produced before the Court nor any witness was examined to prove the fact that the photographs were developed in the lab. As per the prosecution case the alleged contraband was recovered from the bushes on the roadside near Baloda in a red and yellow coloured carry bag and on opening, it was found containing another carry bag of silver and red colour from which charas was recovered. However, during inventory proceedings, in presence of the Magistrate, only red and silver coloured carry bag were produced and this fact has been mentioned by the learned JMIC Chopal in order of Inventory Proceedings, Ext. PW-11/B, dated 15.05.2020, whereas as per the SFSL report, Ext.P-5, charas was there in silver and red coloured cloth bag which was found in multicoloured zip carry bag. Thus the different versions regarding the colour of the bag containing contraband allegedly recovered from the spot, prima facie, creates a serious doubt on the integrity and sanctity of the prosecution case. 6. In Bhagwan Rama Shinde Gosai & others Vs. State 5 ( 2025:HHC:15762 ) of Gujrat, (1999) 4 SCC 421, the Hon’ble Supreme Court was dealing with a case where the appellants before it were sentenced to rigorous imprisonment for ten years. Their application for suspension of sentence was disallowed by the High Court and their motion for having their appeal expedited was also declined. In this factual background, the Hon’ble Supreme Court has held that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. The relevant portion of the judgment 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.” 7. In Kiran Kumar Vs. State of M.P., (2001) 9 SCC 211, the Hon’ble Supreme Court, while following its earlier decision in 6 ( 2025:HHC:15762 ) the case of Bhagwan Rama Shinde Gosai, held as under:- “3. This Court has held in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421 that when a person is convicted and sentenced to a short-term imprisonment the normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception and be put forward for such rejection. In such case also every endeavour should be made to have the appeal posted for early hearing and disposal. If the short-term sentence is allowed to run out during the pendency of the appeal, the appeal itself will become, for all practical purposes,infructuous so far as the appellant is concerned. It does not mean that the appellate court should suspend the sentence, if its consequence would be a danger to the society or any other similar difficulties. 4. No exceptional reason had been shown in the impugned order for not suspending the sentence in this case. We, therefore,deem it appropriate to interfere with the said order. We suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the trial Court.” 8. Thereafter, in the case of Suresh Kumar and others Vs. State (NCT of Delhi), (2001) 10 SCC 338, following the principle enunciated in the judgment of Bhagwan Rama Shinde Gosai, the Hon’ble Supreme Court held as below:- "5. This Court has stated in Bhagwan Rama Shinde Gosai v. State of Gujarat [(1999)4 SCC 421]: (SCC p.422,para 3) 3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. "6. No exceptional circumstance has been highlighted by the learned Single Judge for deviating from the aforesaid course suggested by this Court. We, therefore, allow this appeal and order the suspension of the sentence of imprisonment passed on the appellants during the pendency of the appeal before the High Court. They shall be released on bail on each of them 7 ( 2025:HHC:15762 ) executing a bond with two solvent sureties to the satisfaction of the trial court." 9. We have applied the test of the principles enunciated by the Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind, vis-a-vis the liberty of the appellant/applicant. In the background of the evidence available on record, the present case cannot be said to be one of the exceptional cases in which prayer for suspension of sentence should be refused. The sentence imposed upon the applicant is for a limited duration, namely, imprisonment of ten years. The applicant has already undergone incarceration of more than five years and he cannot be made to suffer further incarceration on such evidence as the appeal which pertains to the year, 2023 is not likely to be taken up for hearing in near future. 10. Hence, keeping in view the aforesaid background of the present case, we are of the opinion that it is a fit case for bail and suspension of sentence of imprisonment. Therefore, while refraining to make any comment on merits of the case, the substantive sentence imposed upon the applicant/appellant by learned Special Judge-II, Shimla, HP, in CIS Regd. No. 71 of 2020, vide judgment of conviction and order of sentence dated 8 ( 2025:HHC:15762 ) 28.03.2023, shall remain suspended till final disposal of the appeal, however, subject to the applicant’s furnishing personal bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court and also subject to deposit of fine amount. On furnishing the requisite bail bonds, he be released forthwith, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the appeal, the applicant/appellant will surrender before the Court. 11. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of. ( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 26th May, 2025 (raman) 9 Digitally signed by VIRENDER BAHADUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa738990a0 ea7ba, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb645c9 bb134, CN=VIRENDER BAHADUR Reason: I am approving this document Location: Date: 2025.05.26 17:00:22+05'30' Foxit PDF Reader Version: 2023.2.0 VIRENDER BAHADUR