JUDGMENT : Ranjan Sharma, J Applicant, Kuldeep Singh @ Rana, being appellant, who is undergoing sentence, has come up before this Court by way of instant application under Section 430 (1) of the Bhartiya Nagarik Suraksha Sahita 2023, seeking suspension of sentence, in terms of the judgment of conviction and sentence dated 28.06.2024 and 10.07.2024 respectively, passed by Learned Special Judge, Mandi, sentencing the applicant to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- [Rs One Lakh Only] and in default of payment of fine to undergo simple imprisonment for a period of one year for the commission of offences punishable under Section 20 (b)(ii)(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. GROUNDS FOR SUSPENSION OF SENTENCE IN INSTANT APPLICATION: 2. Instant application, praying for suspension of sentence, has been filed with the plea that the applicant-convict has undergone two years and seven months of substantive sentence. It is averred that prolonged detention is weakening the economic condition of the applicant. It is averred that the prolonged incarceration has made the family to starve and for enabling him to earn a livelihood for himself and family the prayer for suspension of sentence has been made. It is averred that there are inconsistencies and procedural irregularities in the trial and the judgment passed by the Learned Special Judge. It is averred that PW-9 Joginder Singh ASI, had acted as a complainant and also an Investigating Officer. It is averred that the noncompliance of Section 42 and Section 50 of the NDPS Act has vitiated the trial and the alleged recovery is violative of the mandate of law in case of State of Punjab versus Baldev Singh (1999) 6 SCC 172 . It is averred that there is a discrepancy between the contraband seized 1.350 Kg. vis-à-vis 1.310 Kgs. Plea for suspension of sentence on the principle of parity as the sentence imposed on the co-accused was suspended. It is further averred that the conscious possession has not been proved. 2(i). It is averred that the applicant had earlier also filed an application for suspension of sentence Cr.MP No. 3837 of 2024, which was dismissed as withdrawn on 02.05.2025. Feeling aggrieved, the applicant filed SLP before the Honble Supreme Court, and the aforesaid SLP (Crl) No. 9495 of 2025, was withdrawn on 07.07.2025. 2(i). It is averred that the applicant had earlier also filed an application for suspension of sentence Cr.MP No. 3837 of 2024, which was dismissed as withdrawn on 02.05.2025. Feeling aggrieved, the applicant filed SLP before the Honble Supreme Court, and the aforesaid SLP (Crl) No. 9495 of 2025, was withdrawn on 07.07.2025. It is averred that since the appeal is likely to take considerable time for its disposal, therefore, the sentence imposed on the applicant-appellant may be suspended during the pendency of the instant application. REPLY BY STATE AUTHORITIES: 3. Upon listing of instant application and issuance of notice by this Court on 18.12.2025, the State Authorities have filed the reply dated 02.03.2026, on affidavit of Superintendent of Police, Mandi (HP), opposing the prayer for suspension of sentence. 4. Heard, Mr. Sahil Malhotra, Learned Counsel for the petitioner and Mr. J.S. Guleria, Deputy Advocate General for the Respondent-State. ANALYSIS: 5. Taking into account the averments made in the application for suspension and the reply filed thereto and the evidence led during the trial, this Court is of the considered view that the prayer of the applicant for suspension of sentence, is not made out, at this stage, for the following reasons: 5(i). Prosecution story is that recovery relates to Commercial Quantity of 1.350 kgs of Cannabis -Charas, which was recovered from the bag kept on his lap by the applicant-appellant Kuldeep Singh who was accompanying the driver, namely, Jaswant Singh @ Nitu. The contraband so seizedrecovered stands duly proved by prosecution beyond all reasonable doubts. The applicant has failed to point out glaring discrepancy and illegality which goes to the root of the matter. 5(ii). Mere prolongation of incarceration does not by itself constitute a ground for suspension of sentence, imposed by Learned Trial Court after due appreciation of evidence and full trial. Suspension of sentence cannot be asserted nor granted on sympathetic grounds. 5(iii). The applicant has failed to point out glaring discrepancy and illegality which goes to the root of the matter. 5(ii). Mere prolongation of incarceration does not by itself constitute a ground for suspension of sentence, imposed by Learned Trial Court after due appreciation of evidence and full trial. Suspension of sentence cannot be asserted nor granted on sympathetic grounds. 5(iii). Plea of the applicant that PW-9 ASI Joginder Singh, being the complainant was also the Investigating Officer, cannot come to the aid of the applicant for the reason, firstly, there is no bar under the NDPS Act that an informantcomplainant cannot act as Investigating Officer ; and secondly, merely because the complainant-informant had investigated the case cannot be the ground to doubt or discard the entire prosecution case unless accused has established bias; and thirdly, except in the case of established bias, after weighing the evidence on record, there is no bar that informant cannot act as Investigator, in terms of the mandate of law declared by the Constitutional Bench of the Honble Supreme Court in Mukesh Singh versus State (NCT of Delhi) (2020) 10 SCC 120 {Paras 10.5, ; 12.1 and 13.1(II)}; and lastly, even on the basis of evidence on record, the applicant has not been able to establish any bias and therefore, the submission of the applicant has no force. 5(iv). Plea of the applicant regarding the noncompliance of Section 42 and 50, is devoid of any merit for the reason, firstly, the prosecution story is that on 03.02.2018, police party consisting of 5 persons, headed by PW-9 Joginder Singh, were on routine patrolling and nakabandi duty near gate of Police Station, Thalout. At about 8.40 am, a car bearing registration number PB-01A-4464, came from Kullu side, in which two persons were found sitting and the person on driver seat disclosed his name as Jaswant Singh @ Nitu and the person sitting on front seat disclosed his name as Kuldeep Singh @ Rana, who was carrying an orange color carry bag (MO-2) on his lap. After associating independent witnesses, the search of bag was conducted and on checking, the bag was found containing black colored stick substance, wrapped with transparent polyethene wrappers. After competing codal formalities, recovered contraband was sealed and the Rukka was sent to SHO, Police Station at Aut for registration of FIR. After associating independent witnesses, the search of bag was conducted and on checking, the bag was found containing black colored stick substance, wrapped with transparent polyethene wrappers. After competing codal formalities, recovered contraband was sealed and the Rukka was sent to SHO, Police Station at Aut for registration of FIR. Pursuant to the registration of FIR, the case file alongwith documents were sent to PW 9 Joginder Singh for conducting further investigation in the matter; and secondly, perusal of prosecution story and the evidence on record establishes that the provision of Section 50 of the NDPS Act is attracted in case of personal search of an accused before a Gazetted Officer or a Magistrate ; and thirdly, the prosecution has not conducted any personal search of the applicant-accused and in the absence of any personal search of the applicant-accused, the provision of is not applicable, in view of the mandate of the Constitutional Bench of the Honble Supreme Court in case of State of Punjab versus Baldev Singh (1999) 6 SCC 172 and incase a search or an arrest of a person is made during the normal course of investigation leading to the recovery of contraband then of the Act is not attracted as in instant case. 5(v). Plea of the applicant about discrepancy of weight of contraband, that at the time of recovery, the weight of contraband (Charas) was 1.350 Kgs whereas as per FSL Report Ex P-12, the weight came out to be 1.310 Kgs. The aforesaid plea cannot come to the aid of the applicant-accused, for the reason, that weight of contraband came out to be 1.310 Kgs, after deducting the weight of carry bag, thread, parcel, polythene wrappers and the certification of seized contraband under Section 52-A (2) by the Magistrate stands proved vide Ex P-32 coupled with the fact that the loss in weight is nominal and even no suggestion was put by applicant-accused during trial, therefore, the plea at this stage is not tenable. 5(vi). Plea for suspension of sentence on parity on the ground that that co-accused Jaswant Singh, driver of the vehicle was granted the benefit of suspension of sentence in Cr. 5(vi). Plea for suspension of sentence on parity on the ground that that co-accused Jaswant Singh, driver of the vehicle was granted the benefit of suspension of sentence in Cr. MP No. 3974 of 2024 in Criminal Appeal No. 494 of 2025, Jaswant Singh @ Nitu vs State of Himachal Pradesh on 25.04.2025 cannot be a ground for parity, for the reason, the claim for suspension of sentence is to be tested keeping in view the role of the applicant-appellant Kuldeep Singh who was the prime accused from whom the alleged bag kept in his lap was recovered vis-à-vis co-accused, Jaswant Singh, who was the driver of the vehicle in question. Once the role of both the accused was different therefore, the plea for automatic parity is not tenable. 5(vii). The plea for suspension of sentence of the applicant cannot sustain, when, the applicantappellant, at this stage, has not been able to establish on the basis of the adduced evidence that there are fair chances of his acquittal in the instant appeal. 5(viii). Even, Para 66 of the judgment passed by the Learned Trial Court negates the prayer for suspension, in view of categorical findings, recorded after due trial, that the stand of the prosecution was consistent throughout and no major contradiction exists in their testimonies. It was further held that minor contradictions, if any, were not sufficient to make the prosecution case suspectable as has been alleged by the applicant. The evidence on record consistently indicate that the recovery of contraband from the bag kept in the lap by applicant-appellant Kuldeep Singh was sufficient to hold him guilty of the offence. In these circumstances, the recovery of contraband from the alleged bag from the conscious and exclusive possession of the applicant-appellant was validly accepted, making him liable for the offence. Learned Trial Court had recorded in Para 74 of the Judgment that provision of Section 42 and 50 were not at all attracted. Findings recorded in Para 83 of the Impugned Judgment denying any enmity between the accused and the police officials. The applicant-appellant at this stage has not been able to establish on the basis of adduced evidence that there are fair chances of his acquittal in the instant appeal. Moreover, applicant-appellant has not pointed out any palpable or gross error in the impugned judgment passed by the Trial Court. The applicant-appellant at this stage has not been able to establish on the basis of adduced evidence that there are fair chances of his acquittal in the instant appeal. Moreover, applicant-appellant has not pointed out any palpable or gross error in the impugned judgment passed by the Trial Court. The conviction and sentence imposed on the applicant after due trial and said findings cannot be brushed aside at this stage. The scope of Section 389 Cr.P.C [now Section 430 Bhartiya Nagarik Suraksha Sahita, 2023] has been outlined by the Hon’ble Supreme Court in Aasif @ Pasha versus State of Uttar Pradesh and others , 2025 SCC OnLine SC 1644, in the following terms: 18. In “Omprakash Sahni vs. Jai Shankar Chaudhary and Anr. (2023) 6 SCC 123 , this Court while considering the scope of 389 CrPC in cases of life imprisonment held as under:- 30. In Kishori Lal v. Rupa (2004) 7 SCC 638 this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC pp. 639-40, paras 4-6) “4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.” 31. In Vijay Kumar v. Narendra (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal (2002) 9 SCC 366 , it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar v. Narendra, it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v.State of Maharashtra, (2005) 5 SCC 281 and Gomti v. Thakurdas (2007) 11 SCC 160 . 33. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v.State of Maharashtra, (2005) 5 SCC 281 and Gomti v. Thakurdas (2007) 11 SCC 160 . 33. Bearing in mind the aforesaid principles of law, the endeavor on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 6. Besides, the above discussion, this Court, at this stage is satisfied that on the basis of the adduced evidence, the prosecution has proved its case against applicant-accused beyond all reasonable doubts. In the instant application, the applicantappellant has not been able to point out any palpable or grave error in the impugned judgment. Nothing has been pointed out that the applicant has a fair chance of acquittal. Even, Learned state Counsel states that the case of the applicant does not fall under Section 479 BNSS (earlier Section 436-A Cr PC). Plea of the applicant for reappreciating the evidence bare-thread, at the stage of considering the prayer for suspension of sentence under Section 389 CrPC [now Section 430 , by taking up few lacuna or loopholes in prosecution case, cannot be acceded to. DIRECTIONS: 7. Plea of the applicant for reappreciating the evidence bare-thread, at the stage of considering the prayer for suspension of sentence under Section 389 CrPC [now Section 430 , by taking up few lacuna or loopholes in prosecution case, cannot be acceded to. DIRECTIONS: 7. In view of the above discussion and for the reasons recorded hereinabove, instant application for suspension of sentence, is devoid of any merit, and consequently, the same is dismissed. 8. Before parting, this Court observes that instant appeal relates to the year 2024 and appeals against conviction have reached the hearing board of docket of this Court. In the totality of above circumstances, the applicant-accused, if so desires, may move this Court afresh, in case, appeal is not listed for hearing within 6-8 months hereinafter. 9. The observations made in this order shall not be construed in any manner as an indictive of findings, for or against any of the parties to accompanying appeal. In the aforesaid terms, instant application stands disposed of.