2026:HHC:24059 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P. No. 3765 of 2025 in Cr. Appeal (C-DB) No. 07 of 2025. Reserved on : 21.05.2026. Date of decision: 23.06.2026. Uploaded on: 23.06.2026. _____________________________________________________________________________ Ajsal Rehman P ...Applicant. Versus State of Himachal Pradesh …Respondent. ____________________________________________________________________________ Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? 1 _____________________________________________________________________________ For the Applicant. Mr. Azad Kaith, Advocate. For the Respondent: Mr. Pawan Kumar Nadda, Additional Advocate General. __________________________________________________________ Vivek Singh Thakur, Judge This application has been filed for suspension of sentence, awarded to the applicant-appellant, vide judgment of conviction and order of sentence dated 06.08.2025, passed by Special Judge, Mandi, District Mandi, H.P., for commission of offence punishable under Section 20(b)(ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 ‘NDPS Act’) in case FIR No. 44/2023, registered in Police Station Sundernagar, District Mandi, H.P. in case ND&PS Act No. 73/2023 titled State of H.P. vs. Ajsal Rehman P., whereby he has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo simple imprisonment for one year, for having been found in possession 1.674 kg Charas. 2. Learned counsel for the applicant-appellant has submitted that it has been alleged by the prosecution that 1.674 kg Charas was recovered from the bag in possession of the applicant-appellant, while he was traveling in a bus from Mandi to Delhi on 27.02.2023, whereas from the material on record, it can be easily found that there are glaring discrepancies and contradictions in the evidence, which are sufficient to create doubt on the veracity of the prosecution’s case. 3. It has been submitted on behalf of the applicant-appellant that in ruqua (Ext. P15/PW5), name and address of the applicant have been introduced later on, as there is extra space between two lines, where name and address of the applicant have been mentioned in the ruqua, in comparison to the spacing in lines in other part of the ruqua. It has been further submitted that shape of contraband recovered from the applicant-appellant has not been mentioned either in ruqua (Ext. P15/PW- 3 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 5) or special report (Ext. P26/PW-9) or in recovery memo (Ext. P11/PW-5) as well as in order passed by the Magistrate, certifying the inventory (Ext. P34/PW-11). 4. It has been further argued that from ticket claimed to be of the applicant-appellant (Ext. P17/PW-6), it is apparent that seat No. 43 was allotted to the applicant-appellant, however, in the ruqua (Ext. P15/PW5), it has been stated that applicant-appellant was sitting on seat No. 47 of the bus. 5. It has been further submitted by learned counsel for the applicant-appellant that in Arrest Memo (Ext. P31/PW-11), Constable Nitish Kumar has been mentioned as a witness, but there is no signature of the said witness on the Arrest Memo. 6. It has been further stated that on 28.02.2023, contraband was taken from malkhana for verification and certification of inventory, and in this regard, entry was made in malkhana register, extract whereof is Ext. P-4/PW-1, and as per prosecution case, the contraband was deposited with MHC after completion of process, but there is no entry of depositing the contraband after verification of the inventory by the Magistrate, as evident from extract of malkhana register (Ext. P-4/PW1). 7. It has been further submitted that Head Constable Hans Raj, No. 76 was not present on the spot and before his arrival on the spot, 4 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 contraband had already been recovered by ASI Daulat Ram and it was duly sealed and there is nothing on record to suggest that at any point of time, ASI Daulat Ram had occasion to inform Head Constable Hans Raj, No. 76 with regard to shape of contraband, allegedly recovered from applicant-appellant. 8. It has been further submitted by learned counsel for the applicant-appellant that no identity proof of the applicant-appellant was found in the case property. 9. It has been further submitted that it is evident from copy of Log Book (Ext. D1/DW-1) as well as statement of witnesses that there was overwriting in the Log Book, which again has created doubt about veracity of the prosecution’s story. 10. It has been further submitted that proceedings under Section 52-A of NDPS Act are also doubtful for the reason, evident from copy of order (Ext. P34/PW-11), passed by the Magistrate and in her deposition as DW-2 in present case. 11. Learned Additional Advocate General has submitted that applicant was sitting on the last seat of the bus on the driver side, and there is no cross-examination of any witness with respect to shape of the contraband recovered. 5 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 12. Plea of the applicant-appellant, that seat number of applicant-appellant was 43 and he stated to have been sitting on seat No. 47 and thus, plea of the respondent-State is not sustainable, is not of worth. The person allotted seat No. 43, on availability of seat No. 47, can be found sitting on seat No. 47, irrespective of seat No. 43 allotted to him in the ticket issued by the conductor. 13. Plea of counsel for the appellant that there was no identity card in the bag to relate the applicant-appellant with the commission of offence is also not sustainable, as a person carrying contraband in his bag is never supposed to keep his identity proof in the bag, so as to connect the bag with him. 14. For putting no signatures by Constable Nitish Kumar in the Arrest Memo as witness to the memo, the case of prosecution does not demolish, as arrest of the applicant-appellant has never been disputed. 15. It is also apt to record that Magistrate was examined as DW- 2, who on production of contraband along with application (Ext. P32/PW- 11), has recorded as under:- “4. Considering the nature of offence and mandate of Section 52A of the ND & PS Act, 1985, present application is allowed and the inventory of the contraband prepared by SHO, P.S. Sundernagar is certified, samples are drawn and photographs of the contraband taken during the process of inventory are certified to be correct as follows:-” 6 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 16. It is also apt to record that it is evident from the order dated 28.02.2023, Magistrate did not open the sealed contraband, but cut the packet from a side and on the basis of that, recorded that Charas was verified under Section 52A of NDPS Act. Relevant portion of order reads as under:- “6. I.O. is directed to break open all the thirteen seals of seal impression “SNR S” and “CQ” and same are broken in my presence and the parcel is opened from one side, which is stitched with thread and needle and on opening the white cloth parcel, a black coloured jacket with hood is recovered and from inside the jacket, two packets wrapped with olive colour cello-tape are recovered, which are slightly cut from one side showing black coloured substance stated to be cannabis is recovered. Thereafter, both the packets containing contraband, i.e., charas are weighed with the help of electronic weighing machine brought by the I.O. and on weighing the contraband is found to be 1 kg. 677 grams. The I.O. has submitted that he intends to send whole of the recovered contraband to SFSL Junga for examination. On doing above procedure, the contraband wrapped inside olive coloured cello-tape packets are put inside the jacket in the same manner and the jacket is again put inside the black coloured backpack, which in turn is put inside the white coloured cloth parcel in the same manner, in which it was originally produced before me. The parcel is then stitched by Investigating Officer with stitching needle and thread in my presence. The white coloured parcel is then sealed with Court seals having impression ‘A’ at ten places. The parcel is also handed over to Investigating Officer.” 17. The Magistrate has been examined as defence witness as DW-2, who in her deposition has stated and verified that order dated 28.02.2023 was passed by her for verifying the inventory/contraband recovered from the applicant-appellant. In her statement, she has 7 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 endorsed that order (Ext.P34/PW-11) was passed by her during inventory verification proceedings as per the guidelines issued in this regard. 18. Perusal of the record clearly indicates that DW-2 did not appear as prosecution witness, but was summoned as a defence witness, where she has categorically admitted that order (Ext.P34/PW-11) was passed by her. 19. In the the aforesaid order, it has been stated that samples were drawn, but no sample was ever deposited in malkhana or in State Forensic Science Laboratory. It is also apt to record that in case sample had been taken from the contraband, the same would have been sent to State Forensic Science Laboratory and there must have been decrease in the quantum of contraband recovered from the applicant-appellant. 20. It is also apt to record that in aforesaid order dated 28.02.2023, the Magistrate is completely silent about the shape of the contraband and Magistrate, instead of opening the contraband to verify and check that it was contraband, has not opened the parcel completely, which was brought by the Investigating Officer, rather parcels were kept on the table and, therefore, she has omitted to mention the shape of the contraband again. 21. It is a serious matter that Magistrate has recorded in the order that samples were drawn, but weight of the contraband remains the 8 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 same, even after excluding sample. There may be possibility of error or mistake by anyone, however, in a case under NDPS Act, Magistrate cannot act in a casual manner, rather is expected to perform his/her duty carefully, as for their smallest lapse, personal liberty of a person may be curtailed unnecessarily. 22. In NCB-1 Form, the nature of contraband has been written as ‘Chapati shaped’, but in its order (Ext. P34/PW-11), the Magistrate has not mentioned the shape of the contraband. 23. In SFSL report (Ext. P41/PW11), shape of contraband has been recorded as ‘Chapatinuma’, but the Magistrate is silent about it. There is no mention of Chapatinuma contraband in the ruqua (Ext. P15/PW-5) as well as in seizure memo (Ext. P11/PW5). 24. It has also been submitted that in rapat (Ext. P18/PW-7), which has been recorded at 6:30 on 27.02.2023 that information was received from Investigating Officer ASI Daulat Ram with a request to send second Investigating Officer to the spot to avoid inconvenience to other passengers of the bus, whereas in the ruqua, time of writing the ruqua has been mentioned as 7:05 P.M. 25. The aforesaid discrepancies, in isolation in absence of other discrepancies, may not be fatal, however, in present case, taking into 9 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 consideration the entire material on record, we are of the opinion that sentence awarded to the applicant-appellant may be suspended. 26. It has been submitted by learned counsel for the applicant- appellant that during trial, applicant-appellant was on bail and after conviction he has himself attended the Court to abide by the decision of the Court. Therefore, there is no possibility of absconding of the applicant-appellant, in case he is enlarged on bail, and he is ready for payment of fine. 27. Taking into consideration aforesaid facts and circumstances, we are of the considered opinion that at this stage a fair chance of acquittal appears to be made out and, therefore, substantive sentence imposed upon the applicant-appellant, vide judgment and order 06.08.2025, passed by Special Judge, Mandi, District Mandi, H.P. in ND&PS Act No. 73/2023 (CIS Registration No. 94/2023), in case FIR No. 44 of 2023, dated 27.02.2023, registered in Police Station Sunderngar, District Mandi, H.P. under Section 20 of NDPS Act, is suspended during pendency of the appeal, subject to deposit of fine amount as undertaken, if not already deposited and also subject to furnishing personal bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of Trial Court, with the undertaking to appear before this 10 2026:HHC:24059 Cr.M.P. No. 3765 of 2025 Court as and when directed and in the event of the dismissal of the appeal, the applicant/appellant will surrender before the Court. 28. 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. Application is allowed and disposed of in aforesaid terms. (Vivek Singh Thakur), Judge. (Ranjan Sharma), Judge. 23rd June, 2026 (Susheel)