Research › Search › Judgment

High Court of Himachal Pradesh · body

2026 DAILYLAW 17349 (HP)

SATISH KUMAR @ BICHHU v. STATE OF HP

CRMP/1397/2026 · 2026-07-23

Ranjan Sharma, Vivek Singh Thakur

body2026

Judgment text

Extracted from the PDF above. The PDF is authoritative.

2026:HHC:30491 REPORTABLE IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No.1397 of 2026 in Cr. Appeal No.172 of 2025. Reserved on: 08.07.2026 Pronounced on: 23.07.2026. _______________________________________________________________ Satish Kumar @ Bichhu ...Applicant/Appellant Versus State of Himachal Pradesh ...Non-applicant/Respondent Coram: Honble Mr. Justice Vivek Singh Thakur, Judge Honble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? Yes. For the Applicant/ Mr. Rakesh Kumar Chaudhary & Appellant: Mr. Panku Chaudhary, Advocates. For the Non-Applicant/ Mr. Gautam Sood, Deputy Respondent-State: Advocate General. Ranjan Sharma, Judge Applicant-Appellant, Satish Kumar @ Bichhu, has come up before this Court in instant application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [referred to as the ‘BNSS’], seeking suspension of sentence, in NDPS Case No. 55 of 2023 [2021], whereby, the Learned Special Judge, Mandi, had convicted both the accused, namely Om Parkash and the applicant, Satish Kumar, on 11.11.2024 and sentenced them on 03.12.2024 {referred to as the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:30491 REPORTABLE Impugned Judgment and Order}, for 12 years rigorous imprisonment under Section 29 read with Section 20 (b) (ii) (C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 [referred to as the ‘NDPS Act’] and fine of Rs 1,20,000/- [Rs One Lakh Twenty Thousand] and in default of payment of fine, to undergo simple imprisonment for one year and two months, for commission of offences involving commercial quantity [4.040 Kg.] of Charas-Cannabis. 2. In the instant application, the Applicant- Appellant, Satish Kumar @ Bichhu, has prayed for suspension of sentence on the grounds, that firstly, the Rukka does not contain the endorsement of Duty Officer, giving rise to the presumption that FIR was antedated by the Prosecuting Agencies and the Rukka lacking mandatory endorsement creates doubt about the genuineness of investigation, which breaks official documentation chain and makes the FIR questionable; and secondly, the discrepancy in the facsimile [seal impression] creates doubt and the about sealing and seizure; and thirdly, Learned Trial Court has not appreciated the evidence of PWs in right perspective; 3 2026:HHC:30491 REPORTABLE and fourthly, once no recovery of contraband was affected from the applicant, [Satish Kumar] therefore, rigors of Section 37 of NDPS Act are not attracted; and fifthly, there is procedural lapse in conducting search and seizure of the premises and the shop of the applicant and sixthly, the grounds of arrest have not been conveyed to the applicant before arresting him; and lastly, the applicant is suffering incarceration for five years and chances of hearing of the instant appeal is unlikely in the near future. 2(i). 2(i). It is averred that the applicant has deep roots in the Society and there are no chances of absconding from the course of justice and his family is dependent upon him and the applicant undertakes to remain present before this Court as and when directed to do so with the further undertaking that he shall not jump over any of the conditions of bail, in case, prayer for suspension of sentence is acceded to by this Court. PROCEEDINGS BEFORE THIS COURT IN INSTANT APPLICATION: 3. Notice on this application was issued by this Court on 20.04.2026, so as to enable the Learned 4 2026:HHC:30491 REPORTABLE State Counsel to file response to the application for suspension of sentence. Necessary response was filed by the State Authorities, opposing the claim, as is borne out in the orders dated 15.06.2026. The matter was heard in part on 24.06.2026 and then on 29.06.2026. Upon listing of application on 01.07.2026, Learned Counsel for Applicant sought an adjournment to have complete instructions regarding the criminal antecedents of the Applicant, Satish Kumar @ Bichhu, from his home Police Station and therefore, on his request, matter was adjourned for 08.07.2026 and on the said day, arguments were finally heard. STAND OF STATE AUTHORITIES IN REPLY: 4. State Authorities have filed the Reply dated 07.05.2026 on affidavit of Superintendent of Police, Mandi, District Mandi [HP], opposing the claim of the applicant [Satish Kumar @ Bichhu] for suspension of sentence. 4(i). Based on the evidence adduced before the Learned Trial Court, the Reply-Affidavit indicates that the applicant [Satish Kumar @ Bichhu] apart from the present case [Criminal Appeal No. 172 of 2025] was 5 2026:HHC:30491 REPORTABLE involved in seven criminal cases against him, which are detailed herein below:- Sl. N. Case No’s. along with date Date of conviction /acquittal Police Station Any other particular 1. FIR No. 188/ 2002 dated 31.05.2002 u/s 323, 324, 341 & 34 of IPC. Convicted on 18.12.2009 Sundernagar, Mandi. Convicted. 2. FIR No. 379/ 2002 dated 05.11.2002 u/s 452, 323, 506 & 34 of IPC. Convicted on 19.09.2009 Sundernagar, Mandi Convicted. 3. FIR No. 410/ 2002 dated 26.11.2002 u/s 341, 323, 504 & 506 of IPC. Pending trial. Sundernagar, Mandi. Pending trial. 4. FIR No. 58/ 2003 dated 04.02.2003 u/s 341, 323 & 34 of IPC. Pending trial. Balh, Mandi. Pending trial. 5. FIR No. 43/ 2000 u/s 323 & 324 of IPC and u/s 24, 54 & 59 of Arms Act. Acquitted on 22.01.2013 Balh, Mandi. Acquitted. 6. FIR No. 25/ 2021 u/s 22 of ND&PS Act. Convicted on 03.12.2024 Balh, Mandi. Convicted. 7. FIR No. 36/ 2004 u/s 302 of IPC. Convicted on 08.03.2006 Balh, Mandi. Convicted but sentence modified punishment by Hon’ble High Court of Himachal Pradesh on 17.06.2015 i.e. Life Imprisonment to Imprisonment for 11 years. 6 2026:HHC:30491 REPORTABLE Details of the seven criminal cases indicate that applicant [Satish Kumar @ Bichhu] was convicted in four cases and was acquitted in one case and two cases are pending trial. Reply-Affidavit indicates that mere prolongation of incarceration of the applicant does not by itself constitute a ground for suspension of sentence in view of the fact that though, applicant was sentenced for 12 years rigorous imprisonment and to pay a fine of Rs. 1,20,000/- [Rupees One Lakh Twenty Thousand] and in case of non-payment of fine, then to undergo, default sentence of 1 year and 2 months and since the applicant has not deposited the fine amount as yet, therefore, unexpired sentence in case of the applicant, as per custody certificate as on 05.05.2026 [Annexure R-1] is 6 years 9 months and 30 days. 4(ii). Reply-Affidavit states that the absence of endorsement in Rukka will not render the prosecution story doubtful when, the Rukka as well as the FIR stand duly entered in the records and the same were proved during trial. It was averred that the plea with respect to discrepancies in seal will not come to 7 2026:HHC:30491 REPORTABLE the aid of the applicant, as the case property was duly sealed with proper seal, in accordance with the prescribed procedure and description of incorrect alphabetic stands duly explained by the Investigating Officer in the trial. It was averred that the delay in hearing of the appeal will not entitle the applicant for suspension of sentence, when, the conviction is based on cogent, consistent and reliable evidence. It is averred that the plea that evidence of prosecution witnesses were not appreciated in true perspective is wrong and baseless. 4(iii). In Para-8 of Reply-Affidavit, it is averred that based on the evidence adduced during the trial, the applicant was convicted and sentenced by Learned Trial Court in accordance with the procedure, which established active participation and abetment by the applicant in the commission of offence with co-accused namely, Om Prakash, which was duly proved on the basis of the recovered mobile and the call details and the conversation between both the accused, Om Prakash [co-accused] and applicant [Satish Kumar @ Bichhu]. Even the call details showing conversation 8 2026:HHC:30491 REPORTABLE inter-se the accused, and the transcription of such conversation, which was stored in a pen-drive proved the cogent and direct link between the applicant, Satish Kumar @ Bichhu and co-accused, Om Prakash. Even, the voice samples of both the accused were duly proved by the FSL Experts, corroborating the conversation between both the accused. It is averred that based on the evidence adduced, which was duly exhibited and proved during the trial, the Learned Trial had convicted the applicant, Satish Kumar @ Bichhu, in view of the discussion made in Paras 98, 99 and 101 of impugned judgment. It is averred in the reply, that the plea that the rigors of Section 37 of the NDPS Act were not applicable, is without any force, as the chain of events established abatement of offence by the applicant, Satish Kumar @ Bichhu and once preconditions of Section 37 of the NDPS Act were attracted, which prove the involvement of the applicant, therefore, the plea is not tenable; and mere undertakings that he shall abide by the terms and shall not jump over the bail, in case, sentence 9 2026:HHC:30491 REPORTABLE is suspended, will not confer a right or automatic suspension of sentence. In this backdrop, the State Authorities have opposed the claim for suspension of sentence, with the prayer to dismiss the application. REBUTTAL BY APPLICANT-APPELLANT: 5. Though, no rejoinder was filed so as to rebut the averments contained in Reply-Affidavit, but Learned Counsel for the applicant has placed reliance on the orders passed by the Hon’ble Supreme Court in various cases [Special Leave to Appeal [Criminal] No 18311 of 2024 [Ginni v. State of Himachal Pradesh] decided on 09.04.2025; and the order passed in Special Leave to Appeal [Criminal] No.2848 of 2025 [Prem Singh v. State of Himachal Pradesh decided on 29.04.2025; and the order passed in Criminal Appeal No. 1938 of 2026 [Hem Raj v. State of Himachal Pradesh] decided on 13.04.2026 ; and the order passed in Criminal Appeal No. 2380 of 2025 [Prakash v. Narcotics Control Bureau] decided on 02.05.2025; and the order passed in Criminal Appeal No. 2340 of 2026 [Satish Kumar v. State of Himachal Pradesh] decided 10 2026:HHC:30491 REPORTABLE on 05.05.2026; and the order passed in Criminal Appeal No. 2407 of 2026 [Ballu Singh vs State of Madhya Pradesh] decided on 08.05.2026; and the order passed in Criminal Appeal No 2862 of 2026 [Rijul Chaudhary vs. State Himachal Pradesh] decided on 26.05.2026] to buttress his claim for suspension of sentence on the same analogy. 6. Heard, Mr. Rakesh Kumar Chaudhary and Mr. Panku Chaudhary, Learned Counsels for applicant Satish Kumar @ Bichhu and Mr. Gautam Sood, Learned Deputy Advocate General, for the Respondent-State. STATUTORY PROVISIONS: 7. For appreciating the claim of the applicant for suspension of sentence during pendency of appeal, it is necessary to have a recap of statutory provisions of Section 430 of BNSS, 2023, in following terms:- “430. Suspension of sentence pending appeal; release of appellant on bail: (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond or bail bond: 11 2026:HHC:30491 REPORTABLE Provided that the Appellate Court shall, before releasing on his own bond or bail bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (2). The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3). Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years; or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate 12 2026:HHC:30491 REPORTABLE Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4). When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.” MANDATE OF LAW ON SUSPENSION OF SENTENCE: 8. Before proceeding to analyze the claim of suspension, it would be in the fitness of things to take note of the mandate of law declared by the Hon’ble Supreme Court detailing the broad parameters -factors, to be considered by Appellate Court [including the High Court] while considering the claim of a convict for suspension of sentence, in following terms: FACTORS TO BE CONSIDERED IN CASES OF SUSPENSION OF SENTENCE: 8(i). While dealing with the claim for suspension of sentence, the Hon’ble Supreme Court has outlined in the case of Vijay Kumar v. Narendra and others, (2002) 9SCC 364, that an Appellate Court, including High Court should consider exceptional circumstances and other relevant factors, like, nature of accusation 13 2026:HHC:30491 REPORTABLE made against the accused, the manner in which the crime is alleged to have been committed and gravity of the offence and desirability of releasing the accused on bail, in following terms: “10. On perusal of the record and on consideration of the submissions made by the learned counsel appearing for the parties, we are of the view that in the context of the facts and circumstances of the case, the High Court was in error in passing the order releasing the respondents on bail. The High Court has neither given any reason nor has indicated any exceptional circumstance for granting bail to the respondents. In the above circumstances, it is difficult for us to even surmise the circumstance which prompted the learned single judge to consider the accused persons to be entitled to the discretionary relief of bail pending the appeal. The principle is well-settled that in considering the prayer for bail in a case involving serious offence like murder, punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the 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 14 2026:HHC:30491 REPORTABLE offence of murder. Our attention has not been drawn to any material, which would show that the learned single judge took into consideration the relevant factors while passing the bail order. We refrain ourselves from making any observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for grant of bail to the respondents during pendency of the appeal filed by them.” SUSPENSION CANNOT BE GRANTED IN ROUTINE MANNER BUT TO BE GRANTED WITH DUE CIRCUMSPECTION AND RESTRAINT-PRESUMPTION OF INNOCENCE DISPLACED ON CONVICTION: 8(ii). In dealing with the claim for suspension of sentence the parameters are qualitatively distinct from those applicable at the stage of a pre-trial bail, in view of the fact, that upon conviction, the presumption of innocence stands displaced by proof of guilt and an Appellate Court is required to exercise jurisdiction under Section 389 of the Code of Criminal Procedure with due circumspection and restraint and mere plea that absence of allegations of misuse of liberty cannot be a ground for suspension of sentence in view of the mandate of Hon’ble Supreme Court in 15 2026:HHC:30491 REPORTABLE the case of State of Haryana vs Hasmat, (2004) 6 SCC 175, in following terms: “6. 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 Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. 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. 7. 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 period the accused-respondent as granted parole. 16 2026:HHC:30491 REPORTABLE 8. The learned Sessions Judge, Gurgaon by a judgment dated 24.10.2001 had found the accused respondent guilty. Criminal Appeal No. lOODB/2002 was filed by the respondent. The fact that during the pendency of the appeal the accused respondent was on parole goes to show that initially the accused respondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole the accused has not misused the 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 was 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.” 8(iii). While dealing with parameters for considering the prayer of a convict for suspension of sentence, the Hon’ble Supreme Court has mandated in Vasant Tukaram Pawar vs State of Maharashtra, (2005) 5 SCC 281 that endeavor of the Court should be to see as to whether the case presented by the Trial Court can be said to be the case, in which, a convict stands for fair chances of acquittal and for ascertaining the plea of fair chances of acquittal all 17 2026:HHC:30491 REPORTABLE relevant aspects are to be borne in mind, instead of passing orders for suspension in routine manner. The aforesaid principle was reiterated by the Hon’ble Supreme Court in the case of Gomti vs Thakur Das, [2007] 11 SCC 160, in following terms: 10. … 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 Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. 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. MERE ADMISSION OF APPEAL NOT A GROUND FOR SUSPENSION IN VIEW OF SERIOUSNESS AND GRAVITY OF OFFENCE: 8(iv). Plea of a convict for suspension of sentence on the grounds that appeal stands admitted, is not in itself, a ground for suspension of sentence in view of the seriousness and gravity of offence as outlined 18 2026:HHC:30491 REPORTABLE by the Hon’ble Supreme Court in the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), (2008) 5 SCC 230, in the following terms:- “33. On the facts and in the circumstances of the case, in our considered opinion, this is not a fit case to exercise power under Section 389 of the Code. Though the trial Court has acquitted the applicant -accused for the offences with which he was charged, the High Court reversed the order of acquittal and convicted him under Section 302, IPC and ordered him to undergo rigorous imprisonment for life. Being aggrieved by the said order, he has filed an appeal which has been admitted, is already on board and awaits final hearing. Hence, within `measurable distance of time' the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant- appellant for suspension of sentence and grant of bail. The application deserves to be dismissed and is accordingly dismissed.” IN NDPS CASES- SUSPENSION IF REASONABLE GROUNDS EXIST TO BELIEVE THAT ACCUSED NOT GUILTY OF OFFENCE UNDER SECTION 37 OF NDPS ACT: 19 2026:HHC:30491 REPORTABLE 8(v). While dealing with the constitutionality of Section 32-A of the NDPS Act, it was mandated that Section 32-A which defeats and forecloses the rights of an accused to seek suspension of sentence was held to be unconstitutional but with the caveat that the discretion to order suspension of sentence and bail in NDPS cases is circumscribed by Section 37 (1) (b) of the Act and that too in case, there are reasonable grounds to believe that the accused is not guilty of the offence, as per the mandate of Three Judges of the Honble Supreme Court in the case of Dadu vs State of Maharashtra, (2000) 8 SCC 437, in following terms: 25. Judged from any angle, the Section in so far as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32A in so far as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charan's case (Supra) has correctly interpreted the law relating to the constitutional validity of the Section and 20 2026:HHC:30491 REPORTABLE the judgment of Gujarat High Court in Ishwarsingh M. Rajput's case cannot be held to be good law. 29. Under the circumstances the writ petitions are disposed of by holding that: (1) Section 32A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment. 8(v-a). 8(v-a). While dealing with the plea for suspension of sentence in NDPS cases, where the convict was sentenced for 10 years under Section 29 of NDPS Act and post-conviction has undergone 3 years of sentence with no chance of hearing of appeal, then, the order passed by suspending the sentence without considering the material aspect, whether reasonable grounds exist to believe that accused is not guilty of the offence in the light of Section 37 (1) (b) of the Act, then, the order passed by the High Court was set-aside by the Honble Supreme Court, in the 21 2026:HHC:30491 REPORTABLE case of Union of India vs Rattan Malilik @ Alias Habut, (2009) 2 SCC 624, in following terms: 8. Having carefully gone through the impugned order, we are constrained to observe that while dealing with the application for bail, the learned Judge appears to have lost sight of the mandatory requirements of Section 37 of the NDPS Act and thus, the impugned order is clearly unsustainable. 9. The broad principles which should weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution / conviction is for offence(s) under special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application. 10. As already noted, in the present case, the respondent has been convicted and sentenced for offences under the NDPS Act and therefore, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for offences under the Indian Penal Code, 1860 the relevant 22 2026:HHC:30491 REPORTABLE provision in the said special statute in this regard had to be kept in view. 15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are : (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Indian Penal Code, 1860 etc. but are not sufficient to satisfy the mandatory requirements as stipulated in sub-clause (b) of sub-section (1) of Section 37 of the NDPS Act. Merely because, according to the Ld. Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the Ld. 23 2026:HHC:30491 REPORTABLE Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge. 16. Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained…. MERE PASSAGE OF TIME NOT A GROUND FOR SUSPENSION OF SENTENCE WITHOUT CONSIDERING RIGOURS OF SECTION 37: 8(v-b). While dealing with the claim for suspension of sentence under NDPS Act, the Hon’ble Supreme Court held in the case of Sheru vs Narcotic Control Bureau, Criminal Appeal Nos. 585-586 of 2020, decided on 11.09.2020, that rigors of Section 37 of NDPS Act have to be met before suspending the substantive sentence of a convict and/or before grant of bail and mere passage of time cannot be a reason for suspending the substantive sentence, in following terms:- “We have given a thought to the matter and there is no doubt that the rigors of Section 37 would have to be met before the sentence of a convict is suspended and bail granted and mere passage of time cannot be a reason for 24 2026:HHC:30491 REPORTABLE the same. However, we are faced with unusual times where the Covid situation permeates. We are also conscious that this Court has passed orders for release of persons on bail to de-congest the jail but that but that is applicable to cases of upto seven years sentence.” SUSPENSION IN CASE FAIR CHANCE OF ACQUITTAL IS MADE OUT FROM SOMETHING PALPABLE AND APPARENT ON FACE OF RECORD: 8(vi). The power of an Appellate Court, under Section 389 of the Code of Criminal Procedure [now Section 430 of BNSS, 2023], has been reinforced by the Hon’ble Supreme Court in case of Om Prakash Sahni vs Jai Shankar Chaudhary, (2023) 6 SCC 123, that the suspension of sentence may be justified if conviction cannot ultimately withstand scrutiny, in which, convict ultimately, has fair chances of acquittal on the basis of something which is palpable and apparent on face of records, but without delving into detailed evaluation or re-appreciation of evidence by trying to pick up few lacunas or loopholes in the prosecution case as presumption of innocence gets erased upon conviction, in following terms:- “23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent 25 2026:HHC:30491 REPORTABLE till he is held guilty by a court of the competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified. 24. From perusal of Section 389 of the CrPC, it is evident that save and except the matter falling under the category of sub- section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post- conviction stage, viz Sections 437, 438, 439 and 389(1) of the CrPC. 25. In Rajesh Ranjan Yadav alias Pappu Yadav v. CBI, it has been held under paras 8, 9 and 10 respectively, which are as follows: (SCC pp. 74-75) "8. Learned counsel for the appellant then relied on the decision of this Court in Kashmira Singh v. State of Punjab. In para 2 of the said 26 2026:HHC:30491 REPORTABLE decision it was observed as under: (SCC pp. 292-93) ‘2......It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: ‘We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?’ What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment 27 2026:HHC:30491 REPORTABLE or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.” 9. Learned counsel for the appellant then relied on the decision of this Court in Bhagirath Sinh v. State of Gujarat, Shaheen Welfare Assn. v. Union of India Joginder Kumar v. State of U.P. etc. 10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted." 28 2026:HHC:30491 REPORTABLE 26. This Court, in the case of Ash Mohammad v. Shiv Raj Singh, has observed in para 30, as follows: (SCC pp. 458-59) "30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” 29 2026:HHC:30491 REPORTABLE 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 above said 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 take 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 of the Cr PC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. 30 2026:HHC:30491 REPORTABLE 8(vi-a). The parameters for suspension of sentence under Section 389 of the Code of Criminal Procedure [now Section 430 of BNSS], in case of fixed term sentence has been spelt out by the Hon’ble Supreme Court in the case of Chhotelal Yadav vs State of Jharkhand and Another, 2025 SCC OnLine SC 3062, that the sentence cannot be suspended in a casual manner but it can be suspended, if exceptional circumstances pointing out palpable or gross error in the judgment is made out from the evidence led by the prosecution, in following terms:- “14. The law as regards suspension of sentence by the appellate courts in exercise of powers under Section 389 of the Code (now Section 430 of the Bharatiya Nagrik Suraksha Sanhita, 2023) is well settled. Ordinarily, if the sentence is for a fixed term, the court may exercise its discretion leniently in suspending such sentence of fixed term, pending the final disposal of the Criminal Appeal of the convict. 15. Even in cases where the sentence is for a fixed term, there is a caveat that if there are exceptional circumstances, then the Court may decline to suspend the sentence. 16. What could be those exceptional circumstances is not something exhaustive. 31 2026:HHC:30491 REPORTABLE It is for the Court concerned to look into those exceptional circumstances as may be pointed out by the State. However, the only consideration that should weigh with the appellate court while considering the plea for suspension of sentence of life imprisonment is that the convict should be in a position to point out something very palpable or a very gross error in the judgment of the Trial Court on the basis of which he is able to make good his case that on this ground alone, his appeal deserves to be allowed and he be acquitted. 19. The first thing that the High Court was expected to do is to give a fair idea in its order what is the case of the prosecution. Thereafter, the High Court should have given a fair idea what type of evidence has been led by the prosecution. Thereafter, the High Court should have considered what is the nature of evidence against each of the accused persons – herein on the basis of which the trial court held them guilty of the offence of murder with the aid of Section 149 IPC.” 8(vi-b). While dealing with the prayer for suspension of sentence, Janardan Ray vs The State of Bihar & Anr, in Criminal Appeal Nos.1892-1893 of 2025, decided on 09.04.2025 the Honble Supreme Court has 32 2026:HHC:30491 REPORTABLE outlined that suspension of sentence can be granted only in rare and exceptional circumstances and re- appreciation of evidence at the stage of suspension of sentence is impermissible. CRIMINAL ANTECEDENTS AND OTHER FACTORS COLLECTIVELY TO BE KEPT IN MIND: 8(vii). While dealing with the claim for suspension of sentence, the Hon’ble Supreme Court in the case of Central Bureau of Investigation vs Rajendra Sadashiv Nikalje alias Chhota Rajan @ Nana Sheth & Anr, Criminal Appeal No. 004083 of 2025, decided on 17.09.2025, outlined that relevant factors including gravity of offence, seriousness of offence, role of convict, evidence led coupled with the material aspect that likelihood of success of appeal against a convict is very high and the appeal is not likely to be heard in near future with due weightage to the past criminal antecedents of a convict besides other factors, in following terms:- “9. The ambit of power under Section 389 CrPC is to protect rights of convicted- accused in those cases where the likelihood of success of his appeal against conviction is very high or in case, where a fixed term of imprisonment 33 2026:HHC:30491 REPORTABLE is ordered, the appeal is unlikely to be heard in the near future. 10. The respondent-accused in the present case is a notorious gang leader who is the master mind running the entire organized extortion syndicate. Not only is he accused but, in some cases, he already stands convicted of planning and staging murders of various victims, who have not bent down to his gang’s extortion demands. The High Court also records that there are four cases where trial is pending against the respondent-accused and two cases where he is convicted for life imprisonment. This is over and above numerous other cases where he has already undergone the sentence. We are also informed that the respondent is already in judicial custody, serving sentence in other criminal cases. 11. Thus, in our opinion, the High Court has grossly erred in exercising its jurisdiction under Section 389 CrPC, without appreciating the nature of proven allegations against the respondent-accused and his huge history of criminal antecedents, by suspending the sentence awarded by the Special Court.” 8(vii-a). While dealing with the claim for suspension of sentence, the High Court has to bear in mind the antecedents of a convict, as per the mandate of 34 2026:HHC:30491 REPORTABLE the Hon’ble Supreme Court in the case of Jamnalal vs State of Rajasthan and Another, 2025 SCC Online SC 1641, in the following terms:- “12. Taking into account the fact that the High Court has not adverted to any of the relevant factors for considering the case for suspension under Section 389 and keeping in mind the antecedents, we are of the opinion that High Court was not justified in suspending the sentence.” PERIOD OF INCARCENATION DUE TO PENDENCY OF APPEAL CANNOT BE SOLE GROUND - PAST ANTECEDENTS AND OTHER RELEVANT FACTORS TO BE DULY CONSIDERED: 8(vii-b). While dealing with the claim for suspension of sentence it has been mandated that mere acquittal in earlier criminal cases will not efface the relevance of antecedents, as a factor in assessing the proprietary of deciding the prayer for suspension of sentence and undue weightage cannot be accorded to period of incarceration and mere pendency of appeal cannot be the sole factor for granting relief, in terms of the mandate of the Hon’ble Supreme Court in the case of Dhan Jee Pandey vs State of Bihar and Another, 2026 SCC OnLine SC 581, in the following terms:- “17. Following the aforesaid principles, this Court in Janardan Ray v. the State of 35 2026:HHC:30491 REPORTABLE Bihar and another, set aside an order granting suspension of sentence in a case under Section 302 IPC, reiterating that such relief can be granted only in rare and exceptional circumstances and that reappreciation of evidence at the stage of Section 389 Cr.P.C. is impermissible… The relevant paragraphs of the said judgment are usefully reproduced below: “7. Having regard to the afore-stated settled legal position, we are of the opinion that the High Court has committed gross error in appreciating the evidence already appreciated by the trial Court at the time of considering the applications seeking suspension of sentence pending the appeal. Since this was a case of conviction under Section 302 IPC, the initial presumption available to the accused before conviction, would not be available to him. The High Court could not have suspended the sentence, reappreciating the evidence at the stage of Section 389 and trying to pick up a few lacunae or loopholes here or there in the case of prosecution. The consideration of High Court to the submission made on behalf of the accused that he had not misused the liberty during the trial or that the appeal was not likely to be heard in near future, could not be said to 36 2026:HHC:30491 REPORTABLE be the proper consideration for suspending the sentence of the accused, who have been convicted for the serious offence under Section 302 IPC. It is only in rare and exceptional circumstances, the benefit of suspension of sentence Criminal Appeal Nos. 1892–1893 of 2025 decided on 09.04.2025 should be granted by the appellate court to the accused convicted for the serious offence under Section 302 IPC. 8. In that view of the matter, the common impugned order being in the teeth of settled legal position, the same is untenable at law and deserves to be set aside. Accordingly, the impugned order dated 20.07.2024 is set aside. 21. As held in State of Haryana vs Hasmat (supra), undue weight cannot be accorded to the period of incarceration or the pendency of the appeal in isolation, particularly where the conviction is founded on credible evidence. 22. The criminal antecedents of Respondent No. 2 also assume significance. The prosecution has brought on record multiple prior cases registered against him, including offences involving violence and use of arms. Though it has been contended that such cases arose out of political rivalry and have culminated in acquittal, such 37 2026:HHC:30491 REPORTABLE a contention cannot, at this stage, efface the relevance of antecedents as a factor in assessing the propriety of granting suspension of sentence. 8(vii-c). Mere prolongation of incarceration due to pendency of appeal, ignoring other factors, cannot be the sole ground for suspension of sentence, in the light of the judgement passed by the Honble Supreme Court in the case of Shivani Tyagi vs State of U.P. and Another, 2024 SCC OnLine SC 842, in following terms: “10. ……Paragraph 10 of the impugned order would reveal that taking note of the said offer besides the period of incarceration and also the delay likely to occur in the consideration of appeal, sentence imposed was suspended and the private respondents were enlarged on bail. Paragraph 10 of the order would reveal this position and it reads thus:- “10. After hearing counsel for the parties and considering the voluntarily offer made by the appellants, which is without prejudice to the right of defence as well as right of the prosecution to be decided at the time of final adjudication and having no bearing on the merit of the case, over and above, the 38 2026:HHC:30491 REPORTABLE amount of compensation being paid by the District Legal Services Authority, Meerut, the appellants have offered to pay an amount of Rs. 25 lacs to the victim for her medical treatment and also in view of the long custody as well as the antecedents of the appellants and also considering the fact that the appeals pertain to the year 2021 and are not likely to be listed for final argument in near future, we deem it appropriate to grant suspension of sentence of the appellants.” 12. In such circumstances, the impugned judgment cannot be sustained Consequently, the impugned order is set aside and consequently the bail granted to the private respondent in all these appeals stands cancelled. Consequently, the appellants shall surrender before the trial Court for the purpose of their committal to judicial custody…...” 8(viii). While dealing with the prayer for suspension of sentence, the Honble Supreme Court has outlined in the case of Janardan Ray v. The State of Bihar & Anr etc, Criminal Appeal Nos.1892-1893 of 2025, decided on 09.04.2025, suspension of sentence can be granted only in rare and exceptional circumstances 39 2026:HHC:30491 REPORTABLE and re-appreciation of evidence at stage of suspension of sentence is impermissible. 8(ix). Claim of a convict for suspension of sentence on the ground of incarceration due to pendency of appeal was repelled by the Coordinate Bench of this Court in Sewa Kumar and another vs State of Himachal Pradesh, Cr.MP No. 4586 of 2024 in Cr. Appeal No. 579 of 2024, decided on 10.01.2025, in following terms:- “12. It was further held that the suspension is to be granted by recording the reasons and it is impermissible to release the accused simply because the appeal was not likely to be heard soon. It was observed: “9. …On its perusal, we are of the opinion that factors like the nature of the offence held to have been committed, the manner of their commission, the gravity of the offence, and also the desirability of releasing the convict on bail are to be considered objectively and such consideration should reflect in the consequential order passed under Section 389, Cr. P.C. It is also relevant to state that the mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power under Section 389 Cr. P.C. without referring to the relevant 40 2026:HHC:30491 REPORTABLE factors. We say so because there cannot be any doubt with respect to the position that disposal of appeals against conviction, (especially in cases where life imprisonment is imposed for serious offences), within a short span of time may not be possible in view of the number of pending cases. In such circumstances if it is said that disregarding the other relevant factors and parameters for the exercise of power under Section 389, Cr. P.C., the likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable. That certainly cannot be the legislative intention as can be seen from the phraseology in Section 389 Cr. P.C. Such an interpretation would also go against public interest and social security .… 13. Therefore, the applicants can only be released on bail if they show that their appeal is likely to succeed on merits” ANALYSIS OF CLAIM OF APPLICANT-SATISH KUMAR @ BICHHU FOR SUSPENSION OF SENTENCE: 9. Taking into account the entirety of facts and circumstances and the statutory provisions of Section 389 of the Code of Criminal Procedure [now Section 430 of BNSS] and broad parameters mandated by the Hon’ble Supreme Court on suspension of sentence 41 2026:HHC:30491 REPORTABLE of a convict, as discussed hereinabove, this Court is of the considered view, that the Applicant-Appellant, Satish Kumar @ Bichhu, is not entitled for suspension of sentence, in facts and circumstances of the instant case, at this stage, for following reasons: PLEA OF RUKKA DOES NOT CONTAIN ENDORSEMENT OF A DUTY OFFICER CREATING DOUBT ABOUT RUKKA AND FIR NOT TENABLE: 10. The plea of the applicant, Satish Kumar @ Bichhu, that Rukka does not contain the endorsement of Duty Officer gives rise to the presumption that FIR was antedated by the Prosecuting Agencies and the Rukka lacking mandatory endorsement creates doubt about genuineness of the investigation, which breaks the official documentation chain and makes the FIR questionable. This contention cannot sustain, for the reason, that evidence on record indicates that Rukka as well as FIR contain correct date, time and other details. The Rukka as well as FIR were duly proved before the Trial Court, in accordance with law. Even, the applicant Satish Kumar @ Bichhu, has not put any suggestion to Prosecution Witnesses with respect 42 2026:HHC:30491 REPORTABLE to the same. Further, once the prosecution story and the documents including the Rukka and the FIR were duly exhibited and proved by official witnesses, therefore, mere picking up loopholes, cannot entitle the applicant for the relief of suspension of sentence. PLEA REGARDING DISCREPANCIES IN FASCIMILE (SEAL IMPRESSION) UNTENABLE: 11. The contention of the applicant, Satish Kumar @ Bichhu, regarding discrepancies in Facsimile [seal impression] vitiates the entire case of prosecution. The above contention is misconceived when, the case property was sealed with proper seal that too in accordance with prescribed procedure. Even, PW-18 [HC Ram Chander] has deposed in his cross- examination that incorrect description of seal impression i.e. ‘BLH BE’ vis-à-vis facsimile seal embossed as ‘BLH AE’ cannot form the basis for disbelieving the prosecution story. Once the seal impression, on the parcel containing Charas was duly reflected in the charge sheet, Rukka, FIR, recovery memo, special report statement of witnesses, then, mere discrepancies in NCB-1 cannot be a ground to disbelieve the prosecution story. Based on the evidence led by the 43 2026:HHC:30491 REPORTABLE prosecution, Learned Trial Court has recorded specific finding in Para 82 of the impugned judgment that mere picking up the seal impression by using ‘B’ in place of ‘A’ i.e. using ‘BLH BE’ in place of seal ‘BLH AE’ shall not change the scenario of kind and mere clerical or arithmetic error which will not cause any shadow of doubt on the prosecution story. Even PW-19, Inspector Kamlesh has given explanation that he wrongly typed ‘BLH BE’ on some of the documents. Moreover, the Prosecution Witnesses have deposed that seal impression ‘BLH AE’ was embossed on all documents and in case of any clerical mistake has crept in and once PW-19, Inspector Kamlesh had explained the typographical or clerical error then, the explanation offered by Inspector being plausible, could not be disbelieved. Moreover, the applicant, Satish Kumar has not been able to establish any prejudice due to incorrect description of one of the alphabet on said parcel. Further a marginal variation cannot be doubted and aforesaid contradiction is not material, then, the contention of Learned Counsel for applicant [Satish Kumar @ Bichhu], is without merit and this 44 2026:HHC:30491 REPORTABLE plea cannot be a ground to discard or disbelieve the prosecution story. PLEA THAT EVIDENCE NOT APPRECIATED IN RIGHT PERSPECTIVE: 12. Learned Counsel for the applicant, Satish Kumar @ Bichhu, has contended that the sentence may be suspended as Learned Trial Court has not appreciated the evidence of PWs in right perspective. The above contention lacks merit, for the reason, that during the course of hearing, Learned Counsel for the applicant-Appellant, has not been able to point out from the evidence on record that the applicant-convict has a fair chance of acquittal. Bald averments made in the application, by trying to pick up few lacunas and loopholes from here and there cannot be a ground for suspension of sentence. Failure to point out the core requirement that convict has “fair chance of acquittal” disentitles the applicant for relief, in instant application, at this stage. PLEA THAT NO RECOVERY AFFECTED FROM APPLICANT IMMATERIAL: 13. Plea of the Learned Counsel that once no recovery of contraband was effected from the applicant [Satish Kumar @ Bichhu], therefore, sentence may be 45 2026:HHC:30491 REPORTABLE suspended and therefore the conviction and sentence was bad in law. The above contention is misconceived for the reason, that applicant, Satish Kumar @ Bichhu was convicted for an offence punishable under Section 29 of the NDPS Act, whereby, the abatement/criminal conspiracy was established during the trial. Evidence on record establishes the offence of abetment/criminal conspiracy between the applicant, Satish Kumar @ Bichhu with the co-accused, namely Om Parkash. The recovered Mobile Phone, SIM Card(s) and the SD Card and the call details records and conversation recordings [borne out from transcripted conversation] which were duly proved by the prosecution by Nodal Officers of Telephone Companies, Devender Sharma, PW-10, and Arun Mishra PW-22 coupled with the fact that voice samples of both the accused were taken and these voice samples matched to the voice of the applicant-Appellant, Satish Kumar @ Bichhu and co-accused, Om Prakash. The evidence on record established the direct link-connection between both the accused i.e. applicant-Appellant, Satish Kumar @ 46 2026:HHC:30491 REPORTABLE Bichhu with co-accused, Om Prakash during the trial. Learned Trial Court had duly appreciated the evidence on record and concluded that the applicant [Satish Kumar @ Bichhu] was a party to abatement with, co-accused, Om Prakash, for the offence in question by recording findings in Paras 98, 99 and 101 of the Impugned Judgment. In these circumstances, the contention of Learned Counsel for Applicant-Appellant, Satish Kumar @ Bichhu, is without merit and is turned down. PLEA THAT RIGORS OF SECTION 37 OF NDPS ACT NOT TENABLE: 14. The contention of the Learned Counsel for the applicant [Satish Kumar @ Bichhu] that once no recovery was affected from him, therefore, rigors of Section 37 of the NDPS Act was not invocable against him. The above contention of Learned Counsel for the applicant, is without merit, for the reason, that abatement was duly established during trial, in terms of the findings recorded in Paras 98, 99 and 101 of the Impugned Judgment. Once the evidence on record establishes the recovery of commercial quantity 47 2026:HHC:30491 REPORTABLE of contraband from co-accused, Om Prakash and the call details records, conversation and matching of voice samples of the applicant, Satish Kumar @ Bichhu, with voice samples of co-accused, Om Prakash proves the active involvement and abetment/conspiracy in teeth of Section 29 of NDPS Act. Moreover, applicant has not been able to establish his innocence under Section 35 of NDPS Act. In cases involving commercial quantity of contraband, claim for suspension is not automatic, but has to be tested in the backdrop of Section 37 of NDPS Act, in light of the mandate of the Honble Supreme Court in the cases of Dadu and Rattan Mallik (supra). In these circumstances, at this stage, this Court is of the considered view that once applicant appears to be actively involved in offence relating to commercial quantity of contraband and in the absence of anything palpable on record that the applicant has a fair chance of acquittal, then, the rigors of Section 37 of NDPS Act cannot be ignored, while considering the claim for suspension of sentence, as in instant case. Accordingly, contention 48 2026:HHC:30491 REPORTABLE of Learned Counsel for applicant, Satish Kumar @ Bichhu, is turned down. MANDATE OF LAW ON SUSPENSION OF SENTENCE OR BAIL INVOLVING COMMERCIAL QUANTITY OF CONTRABAND UNDER NDPS ACT : 14(i). Plea of Learned Counsel for the applicant that prolongation of custody due to pendency of appeal has violated the personal liberty and has defeated right of speedy trial under Articles 21 of the Constitution of India. The above contention is misconceived, for the reason, that though personal liberty and rights of speedy trial under Article 21 of the Constitution of India is a precious Constitutional Right, yet, the right to speedy trial under Article 21 of the Constitution of India must be exercised in the light of the object of the NDPS Act and other relevant factors and mere delay in hearing of appeal cannot be granted for suspension of sentence. Mere prolonged incarceration due to pendency of appeal cannot in itself be a ground for suspension of sentence, when, the applicant has not been able to establish that accusation/charge/offence and findings were misplaced 49 2026:HHC:30491 REPORTABLE and he has a fair chance of acquittal. Conversely, once prosecution has established the charge by adducing evidence, which was cogent, consistent and trustworthy and the applicant has failed to show any palpable or apparent infirmity and has failed to show that the applicant has a fair chance of acquittal therefore, in case of conflict between sovereignty of country and personal liberty, the sovereignty of the country shall prevail, as the supply of drugs vitally affects national economy and health of the people. PROLONGED INCARCERATION AND PENDENCY OF APPEAL: 15. Learned Counsel for the applicant contends that he has suffered incarceration for the last more than five years and the appeal filed by him is likely to take considerable time and therefore, the substantive sentence may be suspended. The above contention of Learned Counsel for the applicant is without merit, for the reason, that mere prolongation of incarceration, in itself, is not a ground for suspension of sentence. This factor is to be considered, in the backdrop, whether on the basis of evidence on record, the applicant has fair 50 2026:HHC:30491 REPORTABLE chances of acquittal or not. After having gone through the evidence on record, this Court is of the considered view that the applicant does not have fair chances of acquittal, at this stage. Mere prolongation of incarceration i.e. five years, two months and twenty- eight days, out of total sentence of 12 years with unexpired sentence, as the fine has not been paid, comes out to 6 years, 9 months and 30 days, cannot be a sole ground for suspension of sentence, in view of the mandate of the Hon’ble Supreme Court in the cases of Dhan Jee Pandey and Shivani Tyagi [supra]. RELIANCE ON EARLIER ORDERS AS REFERRED TO IN PARA-5 DISTINGUISHABLE: 16. Learned Counsel for the Applicant places reliance on the orders passed by the Hon’ble Supreme Court in the cases, of Ginni, Prem Singh, Hem Raj, Prakash, Satish Kumar, Ballu Singh and Rijul Chaudhary [supra], with the prayer that substantive sentence has been suspended in case of convicts, then, the Applicant-Appellant, may be extended similar treatment. At the very outset, this Court is of the considered view that the mandate of the Hon’ble 51 2026:HHC:30491 REPORTABLE Supreme Court in aforesaid orders is not disputed but fact-situation in aforesaid cases is distinguishable and the same are not applicable, in facts of instant case, as detailed herein under: 16(i-a). Reliance has been placed on the case of Ginni [supra] by contending that sentence of a convict therein, was suspended after having undertaken half of the sentence despite having criminal antecedents. The facts in the case of Ginni [supra] are distinguishable, for the reason, that sentence was suspended in view of having undertaken 50% of the sentence and the fact that criminal antecedents originating from criminal cases have already been settled in the said case, whereas, in the instant case, the applicant, Satish Kumar @ Bichhu, was involved in eight cases, out of which in five cases he was convicted and was acquitted in one case and two cases are underway. Moreover, the Hon’ble Supreme Court has outlined in the case of Dhan Jee Pandey [supra] that past-criminal antecedents cannot effaced while considering prayer for suspension of sentence. In view of above facts and mandate of law 52 2026:HHC:30491 REPORTABLE by the Hon’ble Supreme Court in Rajendra Sadashiv Nikalje alias Chhota Rajan @ Nana Sheth @ SIR and Dhan Jee Pandey [supra] and this huge criminal history and antecedents cannot be ignored while considering prayer for suspension of sentence and therefore, the claim of the applicant, Satish Kumar @ Bichhu, for suspension of sentence, in view of the mandate of Hon’ble Supreme Court cannot be acceded to in the instant proceedings, at this stage. 16(i-b). Reliance placed on the order in case of Prem Singh is distinguishable in view of the fact that sentence was suspended in said case “considering the period of incarceration and other relevant factors whereas “such other factors are missing in instant case.” 16(i-c). Learned Counsel for the applicant, Satish Kumar @ Bichhu, places reliance on the judgment in the case of Hem Raj [supra], whereby, the sentence was suspended on the ground that convict-Hem Raj, had undertaken 50% of the sentence coupled with the fact that appeal was not likely to be heard in near future and facts in case of Hem Raj [supra] 53 2026:HHC:30491 REPORTABLE are distinguishable in view of the fact that applicant Satish Kumar @ Bichhu, has not completed the substantive sentence of 50% as was completed in the case of Hem Raj [supra] and therefore, there is no parity between the two convicts. 16(i-d). Reliance has been placed in the case of Prakash Singh is not applicable on facts, for the reason, that convict therein had undertaken eleven years of sentence, whereas, the facts of said case are entirely at variance from the facts of instant case where the applicant, Satish Kumar @ Bichhu, as per custody certificate, has undertaken five years, two months and twenty-eight days, out of total 12 years of sentence and after taking into the default sentence for non-payment of fine, the remaining sentence is six years, nine months and thirty days as per Annexure R-1. 16(i-e). Reliance placed in the case of Ballu Singh [supra] is misplaced when, sentence was suspended in view of the age of a convict to be 60 years and the plea set up that he has a good case on merits and has fair chances of acquittal coupled with the 54 2026:HHC:30491 REPORTABLE incarceration and considerable time in adjudication of appeal on merits and the facts in the said case are at variance in the instant case, whereas, it is not the case of Applicant-Appellant, Satish Kumar @ Bichhu, that he has fair chances of acquittal. Nothing has been pointed out before this Court that the applicant-Appellant, Satish Kumar @ Bichhu, has fair chances of acquittal. Mere picking up lacunas or loopholes in the prosecution story, cannot be a ground to seek suspension of sentence. Re-appreciating of evidence, even though not permissible at the stage of considering the application for suspension also, negates the claim for suspension and moreover, when nothing has been placed on record to show that the adjudication of appeal is likely to take considerable time. In these circumstances, the judgment in case of Ballu Singh is distinguishable and not applicable on facts. 16(i-f). Reliance has been placed in the case of Rijul Chaudhary [supra], wherein, the sentence was suspended on the ground that convict therein had completed around 50% of the sentence awarded 55 2026:HHC:30491 REPORTABLE coupled with the fact that convict did not have any criminal antecedents and the fact that appeal was still pending and the case of Rijul Chaudhary is distinguishable whereas in the instant case, though total sentence of the Applicant, Satish Kumar @ Bichhu, was 12 years and one year and two months of default sentence yet the applicant, Satish Kumar @ Bichhu, has undergone 5 years, 2 months and twenty-eight days of sentence and remaining six years, nine months and thirty days is yet to be under gone, which is not even 50%, coupled with the fact that Applicant-Appellant, Satish Kumar @ Bichhu has criminal antecedents as he was involved in criminal cases, which reveal that he was involved in eight cases [including present one], out of which he has been convicted in five case, acquitted in one case and two cases are pending trial. In this backdrop, the reliance placed in the case of Rijul Chaudhary is misplaced. PLEA BASED ON UNDERTAKINGS UNTENABLE: 17. Learned Counsel for the applicant, Satish Kumar @ Bichhu, submits that applicant undertakes 56 2026:HHC:30491 REPORTABLE not to abscond from the course of justice and to remain present as and when directed to be present and shall not jump over the conditions of bail, in case, prayer for suspension of sentence is acceded to. The above contention based on undertakings, cannot be the sole determination test for suspending the sentence when, the evidence on record establishes abetment/criminal conspiracy of the applicant, Satish Kumar @ Bichhu with co-accused, Om Prakash on the basis of call details, call conversation and voice samples inter se which was duly proved during trial. Nothing has been pointed out by Applicant-Appellant, Satish Kumar @ Bichhu, to establish, at this stage, that he has fair chances of acquittal. Mere picking up lacunas or loopholes cannot be a ground for suspension of sentence. Prolongation of incarceration in itself cannot be a ground for suspension of sentence when, the evidence on record establishes the guilty of applicant after due trial and the same cannot be casually interfered with by suspending the sentence as in this case. In these circumstances, the contention of the Learned Counsel for Applicant-Appellant, Satish 57 2026:HHC:30491 REPORTABLE Kumar @ Bichhu is misconceived and is turned down. 18. Based on the evidence on record, which was duly appreciated by Learned Trial Court and in the light of statutory provisions of mandate of law, as discussed hereinabove, the applicant-Appellant, Satish Kumar @ Bichhu, has not been able to point out any grave or palpable inconsistencies or irregularity which goes on to establish that the applicant has fair chances of acquittal. Picking up few lacunas or loopholes cannot be a ground to disbelieve the prosecution story which was duly proved during trial, leading to the judgment of conviction. In this backdrop, this Court is not inclined to accede to the prayer for suspension of sentence of the applicant, as the applicant does not have a fair chance of acquittal, in view of the case as set up in the instant application, at this stage. DIRECTIONS: 19. In view of above discussion and for the reasons recorded hereinabove, instant application is dismissed and the prayer for suspension of sentence 58 2026:HHC:30491 REPORTABLE is turned down, in view of the case as set up in the instant application, at this stage. 20. The observations made here-in-above, shall not in any manner be construed as an expression of opinion on merits and these observations are made only for the purposes of disposal of the instant application. 21. In aforesaid terms, the application shall stand disposed of. (Vivek Singh Thakur) Judge (Ranjan Sharma) Judge July 23, 2026 [Bhardwaj]