2026:HHC:15684 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No.1366 of 2025 in Cr Appeal No. 159 of 2025 a/w Cr.MP No.1534 of 2025 in Cr. Appeal No.175 of 2025 Reserved on: 24.04.2026 Pronounced on : 11.05.2026 _______________________________________________________________ 1. Cr. MP No.1366 of 2025 In Cr. Appeal No.159 of 2025 Ashok Kumar ....Applicant/Appellant Versus State of Himachal Pradesh ....Non-applicant/Respondent AND 2. Cr. MP No.1534 of 2025 In Cr. Appeal No.175 of 2025 Mukund Lal and another ....Applicants/Appellants 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? __________________________________________________________________________ For the Applicant(s)/ Mr. N.S. Chandel, Senior Appellant(s): Advocate with Mr. Sidarth, Advocate, in Cr. MP No.1366 of 2025 [Cr. Appeal No.159 of 2025], for applicant [Ashok Kumar]. Mr. Ajay Kumar, Advocate, for Applicant No.1 [Mukund Lal], in Cr. MP No.1534 of 2025 [Cr. Appeal No.175 of 2025]; and 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:15684 Mr. Vijay K. Arora, Senior Advocate with Ms. Aastha Kohli, Advocate, for Applicant No.2 [Sonu], in Cr. Appeal No.175 of 2025]. For the Non-Applicant/ Mr. J.S. Guleria, Deputy Respondent-State: Advocate General, in both the applications. Ranjan Sharma, Judge Applicant, Ashok Kumar, being the appellant in Criminal Appeal No.159 of 2025 and two other Applicants, namely, Mukund Lal and Sonu being the appellants in Criminal Appeal No.175 of 2025, have come up before this Court, by way of two separate applications [Cr. MP No.1366 of 2025 and Cr. MP No. 1534 of 2025 in respective appeals, under Section 430 of Bharatiya Nagarik Suraksha Sanhita [referred to as the ‘BNSS’] seeking suspension of sentence imposed by Learned Special Judge-II, Kangra at Dharamshala in Sessions Trial No 6-D/VII/2024, in terms of the judgement dated 27.2.2025 and order dated 01.03.2025 {referred to as Impugned Judgement and Order} respectively; convicting and sentencing the applicants- appellants to undergo rigorous imprisonment for ten years each and to pay a fine of Rs 1,00,000/- [Rupees One Lakh] each, for the commission of offence punishable 3 2026:HHC:15684 under Sections 20 and 29 of Narcotics Drugs and Psychotropic Substances Act, 1985 [referred to as the ‘NDPS Act’] and in default of payment of fine to further undergo simple imprisonment for a term of three years each under Sections 20 and 29 of NDPS Act; and applicant, Ashok Kumar was also convicted under Section 25 of NDPS Act and sentenced to undergo rigorous imprisonment for ten years for commission of offence and to pay a fine of Rs 1,00,000/- [Rupees One Lakh] and in default of payment of fine, Ashok Kumar, was mandated to undergo simple imprisonment for a term three years. APPLICATIONS FOR SUSPENSION OF SENTENCE: 2. APPLICATIONS FOR SUSPENSION OF SENTENCE: 2. The applicants have prayed for suspension of sentence, on similar grounds, that Learned Special Judge wrongly convicted the applicants by over-looking manifest errors and major contradictions and by mis- reading and mis appreciating the evidence completely. It is averred that a false case has been framed against them. It is averred that based on evidence on record, applicants have a fair chance of acquittal. It is averred that the applicants were on bail during the trial and 4 2026:HHC:15684 pursuant to conviction and sentence, they are lodged in Lala Lajpat Rai District and Open-Air Correctional Home, Dharamshala [Himachal Pradesh]. It is contented that applicants have suffered incarceration for 2 years and 4 months now. It is contented that the prosecution case is highly doubtful and incredible. It is contented that the personal liberty of the applicants under Article 21 of the Constitution of India cannot be curtailed during the pendency of the appeal(s), when, hearing of the appeal(s) is unlikely in near future. It is contented that denial of speedy trial cannot be a ground to prolong the incarceration of the applicants. It is contented that based on the evidence on record, the prosecution case, suffers from palpable errors in fact as well law and inherent and grave contradictions going to the root of the matter, so as to render the prosecution case highly doubtful, untrustworthy and incredible and these material aspects facts were ignored or were not properly appreciated by the Learned Trial Court resulting in miscarriage of justice. In these circumstances, prayer for suspension of sentence was made, with the request for releasing them on bail, on such terms and conditions, 5 2026:HHC:15684 as this Court may deem appropriate in interests of justice. STAND OF STATE AUTHORITIES IN REPLY: 3. Upon listing of applications for suspension, this Court issued notice the Non-applicant/Respondent -State to file response to the prayer for suspension on 09.05.2025. 3(i). Respondent-State filed a reply, opposing the prayer for suspension, with the plea that there is no illegality and patent infirmity in the findings recorded by Learned Trial Court and applicants were convicted and sentenced after due appreciation of the evidence on record and a full-fledged trial. It is averred that the applicants have been found involved in commission of grave and serious offences under Sections 20 and 29 of NDPS Act, and additionally, the applicant, Ashok Kumar was convicted and sentenced under Section 25 of NDPS Act by Learned Trial Court. It is in this backdrop, that the prayer was made for dismissing these applications. 4. Heard, Mr. N.S. Chandel, Learned Senior Counsel assisted by Mr. Sidarth, Learned Counsel for 6 2026:HHC:15684 applicant-Ashok Kumar and Mr. Ajay Kumar, Learned Counsel for applicant-Mukund Lal and Mr. Vijay K. Arora, Learned Senior Counsel assisted by Ms. Aastha, Advocate for the applicant-Sonu; and Mr. J.S. Guleria, Learned Deputy Advocate General, for the Respondent- State. 5. For appreciating the prayer for suspension, it is necessary to have a recap of the prosecution story as emerges from record. CASE OF PROSECUTION; 5(i). Case of prosecution is that on 08.10.2023, at about 12:20 AM, a police party consisting of SI -SHO Nand Lal alongwith, HC Sanjeev Kumar, HC Vikas Sharma, Constable Ankush Dhiman proceeded for patrolling in their official vehicle, with the official mobile, search light, personal laptop and the printer and reached near Government High School Deogran. Meanwhile, one white colored vehicle bearing registration number JK-14J-0887 reached the spot, which was signaled to stop for checking. On enquiry, the driver of the vehicle disclosed his name as Ashok Kumar and the occupant of co-driver’s seat revealed his 7 2026:HHC:15684 name as Mukund Lal and the third occupant on rear seat disclosed his name as Sonu. On seeing the police patrolling party, Ashok Kumar got perplexed, leading to the suspicion that there might be some objectionable article in the vehicle and the occupants were detained. Thereafter Up-Pradhan, Gram Panchayat, Deogran, Rakesh Kumar was telephonically requested to come to the spot alongwith one Ward Panch. Rakesh Kumar, Up-Pradhan and Ward Panch-Ashwani Awasthi, reached the spot. In their presence, the Vehicle No JK-14J-0887 was searched, one yellow white carry bag was recovered from dashboard of the vehicle. The carry bag was opened containing flat ball shaped substance, which on smell appears to be Charas was found. The contraband was weighed and was found to be 1 Kg. and 072 Grams. The recovered contraband was packed in the same carry bag and sealed in cloth parcel with seal impression “B”. The police prepared the documents Seizure-Memo, Ext.P2/PW1; Search-Memo, Ext P3/PW 1 to Ext P5/PW1; the Photographs, the NCB Form in triplicate Ext P 52/PW12; and resealing of case property was done and vehicle was taken into possession along 8 2026:HHC:15684 with documents. Thereafter, Rukka, Ext. P44/PW4 was sent to Police Station Panchrukhi through Constable Nirmal Katoch and the formal FIR Ext.P45/PW4 was registered against the accused-applicants herein. BROAD PRINCIPLES GOVERNING SUSPENSION OF SENTENCE: 6. While dealing with the principles for suspension of sentence, the Honble Supreme Court has mandated that the provision of Section 389 Cr PC {now 430 BNSS}, is based on the principle of “restorative theory of penology”; and in case the Appellate Court is of the “prima-facie opinion” that the Trial Court has manifestly erred in passing the order of conviction, then, the order of suspension of sentence is warranted. Another relevant aspect on the basis of the material on record, would be as to whether the convict has a fair chance of acquittal and in case, the convict had a fair chances of acquittal, then, the convict should not be kept behind the bars for a pretty long time, till the conclusion of the appeal, which takes very long time for decision and disposal. The determination as to whether convict has a fair chance of acquittal, 9 2026:HHC:15684 has to be ascertained by looking into something palpable. While dealing with prayer for suspension of substantive sentence, in serious offences like murder, punishable under Section 302 IPC, Appellate Court has to consider all the relevant factors, like nature of accusation, the manner in which the crime is alleged to have been committed, gravity of offence and desirability of releasing the accused, by considering the proven allegations and history of criminal antecedents, in view of the mandate of the Honble Supreme Court in Central Bureau of Investigation vs Rajendra Sadashiv Nikalje alias Chotta Rajan @ Nana Seth, Criminal Appeal No 004083/2025, [arising from SLP (Crl)14663/ 2025, D No 5707 of 2025], decided on 17.09.2025, in the following terms:- 7. Further, the principle of law is well settled that the jurisdiction of the Appellate Court in dealing with the application for suspension of sentence is extremely narrow and limited. Section 389 of CrPC is an appendage of the principle of restorative theory in Penology. The legislative intent behind the said provision is that if Appellate Courts, while entertaining an 10 2026:HHC:15684 appeal against conviction, are prima facie of the opinion that Trial Court has manifestly erred in passing an order of conviction, then an order of suspension of sentence is warranted. In order to appreciate when the interference by Appellate Court is warranted to order suspension of sentence, it is apposite to refer to the decision of this Court in Omprakash Sahni v. Jai Shankar Chaudhary, wherein the Court held as follows: - “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 11 2026:HHC:15684 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.” (emphasis supplied) Therefore, it is clear that the jurisdiction under Section 389 CrPC must be exercised when Appellate Court concludes that the convicted-appellant has a fair chance of succeeding in his pending appeal. 8. In Sidhartha Vashisht (supra), this Court also had the occasion to discuss the scope of power to suspend sentence under Section 389 CrPC in a case involving serious offence like murder. The Court held that: “30.… It is no doubt true that even thereafter, it is open to the appellate court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar [(2002) 9 SCC 364] that in considering the prayer for bail in a 12 2026:HHC:15684 case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider all 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, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.” (emphasis supplied) Thus, it is clear that in considering prayer for suspension of sentence, the Court should consider all the relevant factors like 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. 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 13 2026:HHC:15684 term of imprisonment is ordered, the appeal is unlikely to be heard in the near future. ANALYSIS: 7. Taking into account the prosecution story and the evidence on record and the rival submissions made by the Learned Senior Counsel(s)/Counsel(s) for the applicants and Learned State Counsel, and being conscious of the principles necessitating indulgence in matters relating to prayer for suspension of sentence outlined by the Honble Supreme Court (supra), and in fact situation of instant case, this Court is of the considered view, that prayer of the applicants for suspension of sentence, deserves to be accepted, for the following reasons:- FAIR CHANCES OF ACQUITTAL: 7(i). Based on the discussion made in succeeding paras, this Court is of the prima facie opinion that Learned Trial Court has manifestly erred in passing the order of conviction and based on the material on record, the applicants have fair chances of acquittal, and the applicants should not be kept behind the bars, for a pretty long time, till the conclusion of 14 2026:HHC:15684 the appeal, which is likely to take long time for its decision and disposal. ESTABLISHED PROCEDUE IN NDPS MATTERS FROM STAGE OF SEARCH TILL TRIAL: 7(ii). In NDPS Act matters, the established norm is that the police action commences, at first stage, an accused is to be searched after resorting to legal compliances. Upon search, in case, the contraband is seized or recovered, the same is weighed in presence of witnesses who are associated at relevant time and documents regarding search and seizure are prepared {i.e. search memo, seizure memo/recovery memo, NCB form etc.} by the police. The second stage commences when based on the search, seizure and completion of documentation, the Rukka (intimation of occurrence of offence) is prepared and sent to the concerned Police Station for registration of an FIR. The third stage commences, when, on receipt of Rukka, the FIR is registered. The fourth stage commences, after registration of FIR, by conducting Investigation, filing of Challan and the commencement and conclusion of trial inaccordance with procedure. 15 2026:HHC:15684 DEPARTURE FROM ESTABLISHED PROCEDURE 7(ii-a). In instant case, there is a total departure from the established norm(s) from the initial stage of seizure till the stage of registration of FIR. 7(ii-b). Prosecution story is that on 08.10.2023, at about 12:20 a.m., the police party headed by SHO -SI Nand Lal proceeded for patrolling and when they reached near Government High School Deogran, a Vehicle bearing registration No. JK-14J-0887 was intercepted, which was occupied by all these accused. Upon search of accused, the alleged contraband was seized-recovered from dashboard of vehicle. Police prepared documents regarding search, seizure/recovery etc. and thereafter Rukka Ext. P44/PW4, was prepared and sent to Police Station Panchrukhi on 09.10.2023 at 01:35 AM, for registration of FIR. Based on Rukka, the FIR was registered in Police Station Panchrukhi vide FIR No 0087 of 2023 on 09.10.2023 at 03:02 AM, vide Ext. P45/PW4. INCRIPTION OF FIR NUMBER AND OFFENCE DETAILS (DULY TYPED) IN SEIZURE MEMO MAKES SEZURE DOUBTFUL AND INCREDIBLE: 7(ii-c). Perusal of the Seizure Memo, Ext. P2/PW1, reveals that it is a typed document, indicating that 16 2026:HHC:15684 the alleged contraband was seized-recovered from the applicants in presence of two independent witnesses, PW1 [Rakesh Kumar] and PW2 [Ashwani Awasthi] and PW 5, Sanjeev Kumar, a member of the raiding party. Thereafter, the Rukka [Ext. P44/PW4] was sent on 09.10.2023 at 01:35 AM, to Police Station Panchrukhi, which was 3 Kms from the place of alleged incident, near Government High School, Deogran. Based on the Rukka [Ext. P44/PW4], the FIR No. 0087 of 2023 [Ext. P45/PW4] was stated to have been registered at Police Station Panchrukhi on 09.10.2023 at 03:02 AM. In the present case, evidence on record reveals that the police had prepared Seizure Memo [Ext. Ext. P2/PW1] which was a “typed document”. Seizure Memo bears inscription of FIR number and the description of offences, “duly typed” thereon, {containing FIR No 0087 of 2023 dated 09.10.2023 under Sections 20, 25-61-85 of NDPS Act. Once the seizure is the initial step, leading to completion of codal formalities regarding the weighing of alleged contraband, resealing and preparation of documents etc. It is after completion of codal formalities on the 17 2026:HHC:15684 spot, that Rukka [Ext. P44/PW4] is sent on 09.10.2023 at 01:35 AM, to concerned Police Station for registration of FIR and based on the Rukka, the FIR [Ext P45/PW4] was stated to have been registered on 09.10.2023 at 03:02 AM, at Police Station Panchrukhi. In the aforesaid circumstances, it is not understandable, as to how the FIR number and the description of offences (duly typed) could have been inscribed by the police on the Seizure Memo, before Rukka was sent and that too even before registration of FIR ? Inscription of FIR number and details of offences in Seizure Memo {duly typed thereon} before the Rukka was sent and even before registration of FIR, leads to three inferences either (i) no seizure as in Seizure-Memo [Ext.P2/PW1] was affected; or (ii) FIR [Ext.P45/PW4] was registered prior in time before seizure or (iii). the seizure was made at a place other than the spot and it was a planted or a fake seizure. Departure from the established norms and sequence of events and the preparation of documents not in the manner as it should have been, reveals a glaring 18 2026:HHC:15684 and palpable illegality, making the prosecution case, qua seizure-recovery of the alleged contraband as highly doubtful, untrustworthy and incredible. MANDATE OF LAW - EFFECT OF DEPARTURE FROM ESTABLISHED NORMS: 7(ii-d). Departure in preparation of documents from the manner in which the documents are required to be prepared has been deprecated by another Division Bench of this Court in State of Himachal Pradesh v. Dinesh Kumar, 2017 (Supp.) Shimla Law Cases 78, in the following terms:- “27. The documents which were prepared before lodging the FIR contain the number of FIR in a manner as it has been written in one go at the time of preparation of documents whereas the documents prepared after having the number of FIR reflect the number of FIR purported to have been inserted later on. It appears that the entire proceedings were taken at a place other than the spot, to say at the police station, and the sequence of preparation of these documents was also not in the manner as it should have been or has been alleged in the prosecution story. All this strengthens doubt in prosecution case.” 19 2026:HHC:15684 7(ii-e). While dealing with the effect of mentioning of FIR Number in the seizure/recovery documents, when FIR was registered later, another Division Bench of this Court in Lalman vs State of Himachal Pradesh [Cr. Appeal No.158 of 2021, decided on 30.07.2024], has mandated that such departure from established norms, leads to the inference that seizure-recovery was planted/fake and this violation will cut at the root of the case, rendering recovery as highly doubtful, in the following terms:- “19. In Manjit Singh vs. State 2001(2) Cur. L.J. (HP) 106 the FIR number was written on the memo with the same pen and ink. It was held by the Division Bench of this Court that the same will make the prosecution case doubtful. It was observed: “34. In view of the FIR number finding mention in the aforesaid documents "in fact, three inferences are possible, viz.(i) either the F.I.R. had been recorded before the search and seizure, or (ii) the FIR number had been inserted therein after the FIR was recorded, or (iii) the documents were prepared only after the investigating officer received the number of the F.I.R. from the police station. In case the FIR had been lodged before the recovery but contains details of search and recovery the 20 2026:HHC:15684 only inference would be that the recovery was planted/fake and will cut at the root of the case entitling the accused to acquittal. In case the documents regarding search and recovery are prepared only after receipt of the FIR number from the police station, it will suffer from the vice of delay in preparing such documents which must be prepared immediately after the action taken and as a result thereof the recovery will be rendered doubtful. However, in case of insertion of the number of the FIR on the documents which had been prepared immediately after the search and recovery will not necessarily be rendered illegal or doubtful.” 20. This position was reiterated in State of H.P. vs. Gurdeep Lal Latest HLJ 2002 (2) 1018 (HPHC) wherein it was observed: 12. A perusal of Ext. PD shows that F.I.R. No is mentioned on the top of this memo. It is not known as to how the F.I.R. came to be recorded on this memo. A reading of the memo itself shows that the case had not been registered by that time and only a Rooka for the registration of the case had been sent. It appears that Ext. PD came to be prepared only after the registration of the case and much after the search alleged to have been carried out. 21 2026:HHC:15684 13. A Division Bench of this Court in Gabriel Vs. State of H.P 1989 (1) Sim. L.C. 78. Where the seizure memo. Contained F.I.R. number, has held that in no circumstances the memo. Could contain the number of the F.I.R. as it does, because the F.I.R. was recorded in the police Station only on the receipt of the report. The investigation, therefore, was found to be not above board. To a Similar effect a learned Single judge of the Delhi High Court in Mohd. Hashim Vs. State (2000 Cri. L.J. 1510) and Zofar Vs, State (2000 Cri. L.J. 1589) has held the preparation of the memo, to be doubtful. 14. If the memo. Ext. PD is held to be doubtful, then the statement of the Investigation Officer with regard to the compliance of the provisions of section 50 of the NOPS Act, in view of the specific statement made by Pw-10, cannot be accepted. It may be mentioned that the other independent witness to the recovery, namely, Shadi Lal has not been examined and was given up as unnecessary.” DEPOSITION OF PWs RENDERS PROSECUTION STORY HIGHLY DOUBTFUL, UNTRUSTWORTHY AND INCREDIBLE: 7(iii). Police had associated independent witnesses PW1 [Rakesh Kumar] and PW2 [Ashwani Awasthi] at 22 2026:HHC:15684 the time of seizure-recovery and the completion of codal formalities, including the preparation of documents till the time the Rukka was sent for registration of FIR. 7(iii-a). PW1 [Rakesh Kumar], has deposed that he was not aware from where, the alleged carry bag was recovered by the police. He testifies that no vehicle was searched by police in his presence and no recovery was made in his presence. He deposed that when he reached the spot, the bag was already recovered. He deposed that the police has taken 8-10 signatures over some documents and some of them were blank. He deposed that police had asked them to come to Police Station in the morning on next day, wherein, they were made to sign the documents including the Recovery-Seizure Memo [Ext. P2/PW1]. He deposed that no photographs were taken on the spot and even the Seizure /Recovery Memo was prepared in the Police Station Panchrukhi. 7(iii-b). PW-2 [Ashwani Awasthi], another witness, of recovery-seizure, has stated that at the time, when he reached the spot, the bag was already recovered. He deposed that the Recovery-Seizure Memo [Ext. P2/PW1] 23 2026:HHC:15684 was prepared in Police Station and he had signed the said memo in the Police Station, Panchrukhi. He has further deposed that no vehicle was searched in his presence. 7(iv). Another glaring illegality is that the police recorded the statements of independent witnesses, PW1 [Rakesh Kumar], Ex. P 65/PW13 and PW2 [Ashwani Awasthi] vide Ex. P66/PW13, which contained the description and details of FIR, as FIR No 87/23 dated 25-09-2023 under Sections 20-25-29 NDPS Act whereas in instant case, pursuant to the Rukka [Ext. P44/PW4], FIR No 0087 of 2023 [Ext. P45/PW4] was registered on 09.10.2023 at 03:02 AM. SIGNATURES ON BLANK PAPERS: 7(v). While dealing with an eventuality under NDPS Act, where the prosecution witnesses deposed that the investigating agencies obtained signatures on blank papers, the acquittal was upheld by Hon’ble Supreme Court in Union of India v. Jarooparam, (2018) 4 SCC 334, in the following terms:- “12. Turning to the other discrepancies in the prosecution case, PWs 1 and 2 the independent witnesses portrayed 24 2026:HHC:15684 by the prosecution have turned hostile and did not support its case. It is manifest from the record that they had simply put their signatures on the papers at the whims of investigating agency. Another aspect that goes in favour of the accused is that, the version of prosecution that the respondent voluntarily made the confessional statement cannot be believed in the light of admission by Narcotics Officer (PW 5), a key prosecution witness, that the statement of accused-respondent under Section 67 of the Act was recorded while he was in his custody and the time was not mentioned on the statements. This fact further gets corroborated with the statement of PW 6 also that the statement of accused was recorded after arrest and while in custody. Thus, it cannot be said that the statement of the accused confessing the crime was of voluntarily made under the provisions of the Act. Material on record establishes that two of the independent spot witnesses, PW1 [Rakesh Kumar] and PW2 [Ashwani Awasthi], have deposed that no vehicle was searched in their presence and no recovery was affected and police had got 8-10 blank papers signed from them and had also told them to come 25 2026:HHC:15684 to the Police Station on next day in the morning i.e. {10.09.2023}, wherein, they were made to sign the documents, including Recovery-Seizure Memo [Ext. P2/ PW1]. Glaring contradictions, discrepancies and inconsistencies giving rise to suspicion goes to the root of the matter so as to render the prosecution case highly doubtful, untrustworthy and incredible, at this stage. Palpable and apparent inconsistencies, cannot be form the basis for causing miscarriage of justice to the accused, in view of the mandate of the Honble Supreme Court in Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan, 2013 (5) SCC 722, in the following terms:- “21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved and “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between “may be” and “must be” is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 26 2026:HHC:15684 “may be” true and “must be” true, must be covered by way of clear, cogesnt and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be’ true and `must be’ true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., Shivaji Sahabrao Bobade & Anr. v. State of Mahrashtra, Sharad Birdhichand Sarda v. State of Maharashtra, Subhash Chand v. State of Rajasthan, Ashish Batham v. State of M.P., Narendra Singh & Anr. v. State of M.P., State through CBI v. Mahender Singh Dahiya and Ramesh Harijan v. State of U.P.).” 27 2026:HHC:15684 DENIAL OF SUSPENSION WILL VIOLATE ARTICLE 21 AND DEFEAT THE RIGHT OF APPEAL: 7(vi). Denying the relief for suspension of the substantive sentence, solely by invoking Section 37 of NDPS Act, will amount to violation of the rights of the accused under Article 21 of the Constitution of India and will defeat the right of appeal when, the accused had suffered substantial part of the sentence and the appeal is not likely to be heard in the near future, in view of the mandate of the Hon’ble Supreme Court in Criminal Appeal No. 475 of 2025, Narcotic Control Bureau v. Lakhwinder Singh, decided on 29.01.2025, in the following terms:- “6. In the case of fixed-term sentences, if the Courts start adopting a rigid approach, in a large number of cases, till the appeal reaches the stage of the final hearing, the accused would undergo the entire sentence. This will be a violation of the rights of the accused under Article 21 of the Constitution. Moreover, it will defeat the right of appeal. 7. At this stage, the learned ASG appearing for the petitioner submitted that the power of the Court was constrained by Section 37 of the NDPS Act, which is applicable 28 2026:HHC:15684 even at the stage of an appeal. He relies upon a decision of this Court in the case of Dadu vs. State of Maharashtra. There is no dispute about the fact that the Appellate Court is bound by constraints of Section 37 of the NDPS Act while considering the prayer for the grant of bail during the pendency of an appeal. However, if, in the facts of the case, an accused has undergone a substantial part of the substantive sentence and, considering the pendency of criminal appeals, his appeal is not likely to be heard before the accused undergoes the entire sentence, the Appellate Court can exercise the power of releasing the accused on bail pending the appeal. If the relief of bail is denied in such a factual situation, only on the grounds of Section 37 of the NDPS Act, it will amount to the violation of the rights of the accused under Article 21 of the Constitution of India.” CONCLUSION: 8. For the purposes of instant applications and upon considering the prosecution story and evidence on record, this Court is of the prima-facie opinion that the judgement passed by Learned Trial Court suffers from manifest error by resorting to the total departure from the established norms governing seizure-recovery, 29 2026:HHC:15684 by inscribing the FIR number and details (duly typed) on seizure memo, even prior to completion of codal formalities and before the Rukka was sent for registration of FIR and before registration of FIR makes the alleged seizure-recovery and resultant action highly doubtful. Making independent witnesses to sign blank papers, and in affecting recovery before witnesses reached the spot and inscription the FIR details of another case on the statements recording by police. Putting the cart before the horse and glaring and palpable inconsistencies cut the roots of the case and the applicants have a fair chance of acquittal and mere pendency of appeal cannot be made the basis for denying the relief of suspension of sentence, so as to deprive the applicants of their liberty under Article 21 of the Constitution of India and to deprive the applicants of the valuable right of appeal, which has to be effective and meaningful; and denying the relief of suspension of sentence, may render the appeal futile by efflux of time. The applicants have undergone about 2 years and 4 months of substantive sentence. Nothing adverse regarding the past criminal antecedents have been pointed out by 30 2026:HHC:15684 the State Authorities. Nothing has been placed on record that release will adversely affect the public interest and applicants cannot be kept behind the bars till disposal of appeals, which is unlikely to be heard and decided in the near future. DIRECTIONS: 9. In view of above discussion and for the reasons recorded hereinabove, both the applications for suspension of substantive sentence {Cr. MP No.1366 of 2025 and Cr. MP No.1534 of 2025} are accepted ; and consequently, the substantive sentence imposed on the applicants herein [Ashok Kumar, Mukund Lal and Sonu] by Learned Special Judge-II, Kangra at Dharamshala, in Sessions Trial No. 6-D/VII/2024 vide judgment dated 27.02.2025/01.03.2025 shall remain suspended, during pendency of the Criminal Appeal(s), subject to the observance of the following terms and conditions:- (i). Applicants [Ashok Kumar; Mukund Lal and Sonu] shall be released on bail, subject to furnishing personal bond in sum of Rs.1,00,000 [Rupees One Lakh only each;] with two sureties in like amount each, to the satisfaction of Learned Trial Court, 31 2026:HHC:15684 [in case their custody is not required, in any other case]; (ii). Applicants shall deposit fine amount [if not already deposited] within four weeks from today; (iii). Applicants shall report to the concerned Police Station on Second Saturday of every month for update on good behavior and conduct; during the pendency of appeals except in case of their own medical exigency; (iv). Applicants shall give an undertaking before Learned Trial Court that they shall surrender, in case, of dismissal of appeals [Cr. Appeal No.159 of 2025 and Criminal Appeal No.175 of 2025]; (v). Applicants shall not indulge themselves in any offence whatsoever hereinafter; and involvement of applicants in any offence hereinafter shall result in automatic cancellation of concession granted by this Court; (vi). Learned Trial Court is free to impose other condition(s), as it may deem fit and proper, in facts of instant case; and (vii). Bail bonds, which may be furnished by the applicants, shall be transmitted by Learned Trial Court to the Registry of this Court. 10. 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 32 2026:HHC:15684 only for the purposes of disposal of the instant applications. 11. The Registry is directed to forward a copy of this order to Superintendent of Police, Kangra [HP], for information and with direction to intimate the concerned SHO to keep an update on good conduct and behavior of the applicant-appellants [Ashok Kumar, Mukund Lal and Sonu] in terms of this order. In the aforesaid terms, all these applications shall accordingly, stand disposed of. (Vivek Singh Thakur) Judge (Ranjan Sharma) Judge May 11, 2026 [Bhardwaj]