Shiv Kumar Vs State of Hp

1 Neutral Citation No. ( 2025:HHC:21861 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP No. 2068 of 2025 in Cr. Appeal No. 596 of 2024 Reserved on: 04.07.2025 Decided on: 09.07.2025 _____________________________________________________ Shiv Kumar …..Appellant/applicant. Versus State of Himachal Pradesh ……Respondent/non-applicant. ____________________________________________________ Coram_

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The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting?

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_______________________ For the applicant:	________ Mr. M.A. Kaushal,	______________________ Safee and Mr. Pranav Advocates.
For the non-applicant/State:	Mr. I.N. Advocate	Mehta, Senior Additional General, with Mr. Pawan
	Kumar N	adda, Additional Advocate
	General Deputy A	and Mr. Ankush Thakur, dvocate General.

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Sushil Kukreja, Judge.

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This order shall dispose of application, filed by the applicant/appellant Shiv Kumar, under Section 430 of The Bharatiya Nagarik Suraksha Sanhita , 2023, seeking suspension of sentence awarded by the learned Special Judge-II, Hamirpur, H.P., vide judgment of conviction, dated 03.10.2024, and order of sentence, dated 04.10.2024, in Case No. CIS Case Registration No. 53 of 2021, for the commission of offences punishable under Sections 20(b)(ii)(A) and 21(b) of the Narcotic Drugs &

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2 Neutral Citation No. ( 2025:HHC:21861 )

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Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and releasing him on bail.

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The learned Counsel for the appellant/applicant contended that the appellant/applicant has got a very good arguable case on merits, as the evidence relied upon by the learned Trial Court is shaky, thus not tenable in the eyes of law. He also contended that the prosecution has failed to comply with the mandatory provisions of the Act, which castes a doubt qua the alleged recovery from the conscious possession of the appellant/applicant. He further contended that there are material contradictions in the statements of the prosecution witnesses, which the learned Trial Court has lightly brushed aside and there is no evidence at all which shows that the appellant/applicant had any connection with the alleged contraband. He also submitted that as the appeal is not likely to be decided in near future, therefore, in view of the peculiar facts and circumstances of the case, the sentence imposed upon the appellant/applicant by the learned Trial Court be suspended in the interest of justice and fair play.

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Per contra the learned Senior Additional Advocate

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General contended that the appellant/applicant is not entitled for suspension of sentence, as the learned Trial Court had found him

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guilty after a full fledged trial and in addition to the instant case, seven more criminal cases are pending against him, out of which five cases are of NDPS Act. It is further contended that after the judgment of conviction, there is no presumption of innocence in favour of the appellant/applicant and the instant application, being devoid of merits, deserves to be dismissed.

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I have heard the learned counsel for the applicant/appellant as well as learned Senior Additional Advocate General and have also gone through the material available on record.

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The perusal of the record reveals that the learned Trial Court, vide judgment of conviction, dated 03.10.2024, convicted the applicant/appellant under Section 20(b)(ii)(A) and 18(c) of the NDPS Act for his alleged involvement in possessing 9.54 grams of charas and 5.25 grams of heroin and vide order of sentence, dated 04.10.2024, he was sentenced to undergo rigorous imprisonment for a period of three months and to pay fine of Rs.5000/- and in default of payment of fine to further undergo simple imprisonment for one month. The applicant/appellant was also convicted under Section 21(b) of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.25,000/- and in default of payment of fine to further undergo

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simple imprisonment for three months.

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6. Before adverting to the rival contentions raised by the

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learned counsel for the appellant/applicant as well as learned Senior Additional Advocate General for the non-applicant/State, it would be beneficial to refer to the settled legal position, to the effect that when the appellant/applicant accused is convicted by the competent Criminal Court, the initial presumption of innocence is no more available to him.

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7. In State of Maharashtra vs. Madhukar Wamanrao

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Smarth, (2008) 5 SCC 721, the Hon'ble apex Court referred to the parameters delineated in Kishori Lal vs. Rupa & others, (2004) 7 SCC 638 to be observed by the High Court while dealing with an application for suspension of sentence and grant of bail and reiterated the view taken in Vasant Tukaram Pawar vs. State of

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Maharashtra, (2005) 5 SCC 281 . The relevant part runs as under:

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“10. The parameters to be observed by the High Court while dealing with an application for suspension of sentence and grant of bail have been highlighted by this Court in many cases. In Kishori Lal v. Rupa it was observed as follows:

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"4. Section 389 of the Code of Criminal Procedure, 1973 (in short “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 against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

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The above position was reiterated in Vasant Tukaram Pawar v. State of Maharashtra (2005 (5) SCC 281)"

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8. In Preet Pal Singh v. State of U.P. & Anr. reported in

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(2020) 8 SCC 645, the Hon'ble Supreme Court held that for grant of post-conviction bail to a convict under Section 389 of Code of Criminal Procedure, there has to be strong and compelling reasons and such strong and compelling reason must be recorded in the order granting bail. The relevant para of the aforesaid judgments reads as under:

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"35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. (2018 3 SCC 22). However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.”

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9. In (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC

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724 , it was held that the principle of bail being the rule and jail being an exception cannot be attracted, once there is conviction

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upon trial. The relevant para of the aforesaid judgment reads as under:

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"10. At this stage, we will refer to the decision of a two-judge Bench of this Court in Preet Pal Singh v. State of U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645 : (2020) 3 SCC (Cri) 897] where Indira Banerjee, J., speaking for the Court, observed as follows : (SCC p. 655, para 35)

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"35. There is a difference between the grant of bail

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under Section 439 CrPC in case of pre- trial arrest and suspension of sentence under Section 389 CrPC and the grant of bail, post- conviction. In the earlier case there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of postconviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.”

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It has further been laid down by the Hon'ble Supreme Court in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6

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SCC 123 that while deciding the application for suspension of the sentence, the Court should consider whether the applicant has a fair chance of acquittal. The relevant para of the aforesaid

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judgment is extracted hereunder:

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"“23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent 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.

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24. From perusal of Section 389 of the Cr. PC, 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 preconviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the Cr. PC.

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25 to 32 xxx

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33. Bearing in mind the aforesaid principles of law, the endeavour 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.”

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11. Taking into consideration the position of law, as can be

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gathered from various judgments of the Supreme Court, it is very clear that discretion at the time of considering the plea of the accused for suspension of sentence pending final hearing of appeal has to be exercised judiciously and not as a matter of course as once the conviction is recorded, the presumption of innocence is no longer available to the appellant. A perusal of Section 430 of BNSS would show that suspension of sentence during pendency of appeal is not the absolute right of the convict. The discretion to suspend the sentence vests in the court and it is required to be exercised judicially keeping in view all facts and circumstances and the nature of offence. The Court has to exercise this discretion with utmost care and caution, balancing one's right and liberty on one hand and the interest of the society on the other.

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In the instant case, the learned Trial Court convicted and sentenced the appellant/applicant under Section 20 and 21 of the NDPS Act, as he was found in exclusive and conscious possession of 9.478 grams of charas and 5.094 grams of heroin, which he had kept and was being transported by him in his scooty No. HP21B-6674, therefore, the initial presumption of innocence is no more available to him. Moreover, this Court cannot ignore the fact that the appellant/applicant is a habitual offender, as in addition to the instant case, four more cases under the NDPS Act have been registered against him. As per the averments made in the application itself, in case FIR No. 36 of 2011, registered against him at Police Station Hamirpur, under Section 20 of the NDPS Act, the appellant/applicant has been acquitted, in case FIR No. 99 of 2021, registered against him at Police Station Hamirpur, under Section 21 of the NDPS Act, the appellant/applicant has been convicted and sentenced to undergo two years rigorous imprisonment, however, this Court, vide order dated 17.07.2024 suspended his sentence, in case FIR No. 37 of 2022, registered at Police Station Haroli, District Una, under Sections 21 and 29 of the NDPS Act, and in case FIR No. 211 of 2023, registered at Police Station, Barsar, registered against him under Section 21 of the NDPS Act trials are pending.

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The learned counsel for the appellant/applicant highlighted some contradictions in the statements of the prosecution witnesses and also contended that the prosecution had failed to comply with the mandatory provisions of the NDPS Act, which castes a doubt qua the alleged recovery from the conscious possession of the appellant/applicant. However, the contentions raised by the learned counsel for the appellant/applicant cannot be accepted at this stage, as the same cannot be gone into in detail at the stage of deciding the present application for suspension of sentence. Whether these contradictions in the testimonies of the prosecution witnesses are so glaring to affect the core of the prosecution case, can only be examined at the stage of final hearing. In Om Prakash Sahni’s case (supra), Hon'ble Supreme Court has clearly held that the Appellate Court should not re-appreciate 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, which would not be a correct approach.

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In view of the aforesaid discussion and keeping in mind, the nature of conviction and sentence imposed by the learned Trial Court, that too, after a full-fledged trial and the appellant/applicant being habitual offender, this Court hold that the

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appellant/convict, at this stage, has miserably failed to carve out a strong case for suspension of sentence and his release on bail. The application for suspension of sentence and release of appellant/convict on bail, therefore being misconceived, is dismissed and stands disposed of accordingly.

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It goes without saying that any expression of opinion, while deciding the instant application, is given only for the purpose of deciding the present application and the same shall not be construed to be an opinion expressed on the merits of the main

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case, which shall be adjudicated on its own merits.

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( Sushil Kukreja ) Judge

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9^th July, 2025 (virender)

Shiv Kumar v. State of Hp

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Shiv Kumar v. State of Hp

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