Dismissed¶72

Prakash Kumar v. State of Hp

Himachal Pradesh HC18 Dec 2025CRMP/3214/2025

Case brief

AI extract

What is this about?

Suspension of sentence; post-conviction bail; Section 389 Cr.P.C / Section 430 BNSS versus Section 439/438 Cr.P.C / 483/482 BNSS; NDPS Act; Section 35 NDPS conscious possession; heroin 2.50 grams; 925 capsules 532 grams; plot No.16 Sauli Khad Mandi; Tarna road residence; Tramadol Hydrochloride; Dicyclomine; paracetamol; neutral substance mixture commercial quantity; Hira Singh (2020) 20 SCC 272; Preet Pal Singh (2020) 8 SCC 645; NCB v. Lokesh Chadha (2021) 5 SCC 724; Shakil Ahmed Bombay HC distinguished; Amirullah Allahabad HC distinguished; Cr.MP 3214/2025; Cr.Appeal 111/2024; Himachal Pradesh High Court Shimla; Romesh Verma J.; Vivek Singh Thakur J.; application dismissed.

What did the court decide?

None — the application for suspension of sentence and enlargement on bail during the pendency of the appeal was dismissed. ¶72

Prakash Kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

None — the application for suspension of sentence and enlargement on bail during the pendency of the appeal was dismissed.

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Issue for consideration

Whether the applicant/appellant's sentence should be suspended and he be enlarged on bail during the pendency of Cr.Appeal No. 111 of 2024 arising from his conviction by the learned Court below. +1 more

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Court's answer

The learned Special Judge thrashed the entire oral and documentary evidence on record, and learned counsel for the applicant could not point out fair chances of acquittal for purposes of the suspension-of-sentence application.

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Ratio / Principle

On the testimony of PW-3 (HHC Ramji Dass), PW-4 (Drug Inspector Abhilash Kumar), PW-5 (HC Tek Chand) and PW-13 (HC Mukesh Pathak), the 925 capsules weighing 532 grams and the 2.50 grams of heroin were recovered by the police officials from the conscious and constructive possession of the applicant at plot No.16, Sauli Khad.

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Key takeaways

The submission that the house belongs to the applicant's mother and that the applicant is a permanent resident of Tarna road does not hold good; rather it fortifies the prosecution case, as a son is normally found in his mother's house, and the Tarna road residence makes no impact on the merits for determination of this application, the contraband having been found in the applicant's conscious possession at Sauli Khad.ratio¶40
The contention that the capsules contained non-prohibited Dicyclomine and paracetamol along with Tramadol Hydrochloride is answered by the law laid down by the Apex Court in Hira Singh ((2020) 20 SCC 272), per which, for determining small or commercial quantity, the entire weight of the mixture/preparation including neutral material is to be considered.ratio¶45

Detailed headnote1 paragraphs

High Court of Himachal Pradesh (Romesh Verma J., bench including Vivek Singh Thakur J.) dismisses Cr.MP No.3214/2025 in Cr.Appeal No.111/2024 — the convicted NDPS appellant Prakash Kumar's application for suspension of sentence and enlargement on bail. Trial-court evidence (PW-3 HHC Ramji Dass, PW-4 Drug Inspector Abhilash Kumar, PW-5 HC Tek Chand, PW-13 HC Mukesh Pathak) established recovery of 925 capsules weighing 532 grams and 2.50 grams of heroin from plot No.16, Industrial Area, Sauli Khad, Mandi, i.e., the applicant's conscious and constructive possession; the plea that the house belonged to his mother and that he resided at Tarna road was rejected, and Section 35 NDPS burden-shifting noted. The argument that the capsules contained non-prohibited Dicyclomine and paracetamol besides Tramadol Hydrochloride was answered by Hira Singh v. Union of India, (2020) 20 SCC 272 — the entire weight of the mixture including neutral material counts for small/commercial quantity. Reliance by counsel on Shakil Ahmed (Bombay HC, 2024 SCC Online Bombay 832) and Amirullah @ Amir Musalman (Allahabad HC, Bail Appln. 40635/2022) was held distinguishable. Following Preet Pal Singh, (2020) 8 SCC 645 and State (NCT of Delhi) NCB v. Lokesh Chadha, (2021) 5 SCC 724, the Court reiterated that post-conviction suspension under S.389 Cr.P.C (S.430 BNSS) requires strong compelling reasons recorded in the order, unlike pre-trial bail under S.439/438 Cr.P.C (S.483/482 BNSS); no fair chances of acquittal were shown, and the application was dismissed, with all observations expressly confined to the application and not the merits of the main appeal.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP No.3214 2025 in Cr.Appeal No. 111 of 2024 Reserved on 08.12.2025 Date of Decision: 18.12.2025

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__________________________________ Prakash Kumar

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….Applicant. Versus State of H.P. …….Respondent

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Coram Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?¹

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For the applicant : Mr. Vishal Thakur Advocate and Mr.Vivek Thakur, Advocate. For the respondent : Ms. Sharmila Patial, Additional Advocate General ___________________________________ Romesh Verma , Judge

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This order shall dispose off an application

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filed by the applicant/appellant for suspension of sentence and for his enlargement on bail.

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It has been stated by the applicant in his application that he has already undergone more than 4 years of imprisonment out of the total

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

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2( 2025:HHC:44249 )

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sentence of 20 years during the pendency of the appeal. He has stated that there is every likelihood of succeeding the appeal and he has been roped in a false case by the prosecution.

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On the other hand, the respondent-State has filed a detailed reply to the aforesaid application whereby all the averments and contentions as raised by the applicant have been refuted. It has been stated in the reply that since the applicant has committed a serious /grave offence which impacts the public at large, therefore, no leniency can be shown to the applicant more so after his conviction by the learned Court below. The State has prayed for

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the dismissal of the application, keeping in view the judgment of conviction, as passed by the learned Court below.

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We have heard Sh. Vishal Thakur and Sh. Vivek Thakur, Advocates, learned counsel for the

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3( 2025:HHC:44249 )

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applicant/appellant and Ms. Sharmila Patial, learned Additional Advocate General for the respondent/State.

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It is contended by the learned counsel for the applicant that recovery which was effected from

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the house does not belong to the applicant and the property in question has not been identified by any revenue ofÏcial. He has submitted that in the absence of identification of the house in question, it cannot be inferred that the contraband was seized from the conscious possession of the applicant. He

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has further submitted that the prosecution has failed to prove that applicant was involved in the commission of the offence and the said contraband

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was recovered from the house of the applicant. Further, he has submitted that applicant/appellant is resident of Tarna road, whereas recovery in question has been made from Sauli Khad. It is

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4( 2025:HHC:44249 )

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further submitted that the house from where the contraband was recovered, is just adjacent to the bus stand, therefore, it cannot be ruled out that he has been implicated in a false case.

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The prosecution in order to prove its case has examined PW-3 HHC Ramji Dass, who has categorically stated that at about 9.00 a.m. Head Constable Tek Chand received a secret information

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which was reduced into writing and the same was handed over to Constable Shankar Sidharth with a direction to take the same to Sh. Ashish Sharma, Additional S.P. He had brought Vipin Kumar and Lalit Kumar as witnesses. It is further stated that

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they went to the house constructed on plot No.16, where the present applicant Prakash Chand met them inside the iron gate. His name was inquired and he revealed his name as Prakash Chand. He was brought outside the gate and the police team and the

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witnesses gave their search as well as IO kit.It is also stated that nothing incriminating found in their possession. It is stated that when they went on the floor located in front of the gate, they conducted the search of the room and contraband comprising of heroin was found to be 2.50 grams and total 925 capsules weighing 532 grams were recovered. The said statement is corroborated by Abhilash Kumar (PW-4) the Drug Inspector, who has stated that he was requested to visit plot No.16 in an Industrial area, Sauli Khad, Mandi. He has stated that he reached the spot and contraband was found. On search, capsules total 925 in numbers were found. He further stated that the search of the remaining portion was conducted and one transparent polythene pouch was found beneath the mattress towards the pillow side. It was found to be containing beige coloured granulated substance and another small polythene which was declared to

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6( 2025:HHC:44249 )

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be heroin and after weighing the same, it was found to be 2.50 grams.

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Similarly, PW-5 Head Constable, Tek Chand has stated that he received a secret

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information which was reduced into writing Ext.PW1/A. PW-5 handed over the same to Constable Shankar Sidharth with a direction to take the same to Additional S.P. Sh. Aashish Sharma. It is further stated that they went to the residential house constructed on plot No.16 and the present applicant Prakash Kumar was found inside the iron gate leading to the first floor through the stairs. The search of the house of the applicant was conducted

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in the presence of the applicant and the witnesses and on search, total 925 capsules were found and total weight of the capsules was found to be 532 grams. Further, it is stated that they found a polythene pouch beneath the mattress of the double

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7( 2025:HHC:44249 )

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bed towards the pillow side and the weight of the substance was found to be 2.50 grams after weighing it on an electronic weighing scale. He further stated that parcel and NCB form-1 in triplicate and sample seal were seized vide memo Ext.PW3/D and he also obtained the signatures of the accused-appellant, Drug Inspector and the witnesses on the parcel, sample seal and the seizure memo.Head Constable Mukesh Pathak (PW 13) conducted the investigation in the case. He has also

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stated on the same line as has been averred by the other witnesses.

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From the testimony of these witnesses, it is crystal clear that the capsules and heroin was recovered by the police ofÏcials from the conscious and constructive possession of the present applicant.

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8( 2025:HHC:44249 )

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The Hon’ble Apex Court in its various decisions has held that in case, contraband is found from the physical possession of the accused, Section 35 of the NDPS Act comes into play and the burden shift on the appellant- accused to prove that he was not found in conscious possession of the contraband.

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In the present case, the police ofÏcials have established that contraband was recovered from the conscious possession of the applicant and they have no axe to grind against the applicant. The submission of learned counsel for the applicant that the house belongs to the mother of the applicant and the applicant is permanent resident of Tarna road does not hold good. Rather, it fortifies the case of the prosecution that in normal circumstances son is found in the house of his mother, which cannot be held to be unusual or illegal. The

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9( 2025:HHC:44249 )

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contraband has been found from the conscious possession of the applicant as per the prosecution

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story from Sauli Khad, therefore, for the determination of the present application, the submission that the applicant is permanent resident of Tarna road does not make any impact on merits of the case.

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It is submitted by the learned counsel for the applicant that the recovered substance contains Tramadol Hydrochloride, however the capsules also contain Dicyclomine and paracetamol which is not a prohibited substance. For that the answer to said submission of the learned counsel is the law laid

¶45

down by the Hon’ble Apex Court in Hira Singh and another vs. Union of India and another (2020)20 SCC 272, wherein it was held as under:

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“10.2 Therefore, considering the statement of objects and reasons and the preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the

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10( 2025:HHC:44249 )

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quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from sub-clause (vii-a) and (xxiii-a) of Section 2 of NDPS Act, emphasis is on Narcotic Drug or Psychotropic Substance (Sections 21, 22, 23, 24, 27 and 43). Even in the table attached to the Notification dated 19.10.2001, column no. 2 is with respect to name of Narcotic Drug and Psychotropic Substance and column nos. 5 and 6 are with respect to “small quantity and commercial quantity”. Note 2 of the Notification dated 19.10.2001 specifically provides that quantity shown against the respective drugs listed in the table also apply to the preparations of the drug and the preparations of substances of note 1. As per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the table apply to isomers ..., whenever existence of such substance is possible. Therefore, for the determination of “small quantity or the commercial quantity” with respect to Narcotic Drugs and Psychotropic Substance mentioned in column no.2 the quantity mentioned in the clauses 5 and 6 are required to be taken into consideration. However, in the case of mixture

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11( 2025:HHC:44249 )

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of the narcotic drugs / psychotropic drugs mentioned in column no.2 and any mixture or preparation that of with or without the neutral material of any of the drugs mentioned in table, lesser of the small quantity between the quantities given against the respective Narcotic Drugs or Psychotropic Substances forming part of mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. As per example, mixture of 100 gm is seized and the mixture is consisting of two different Narcotic Drugs and Psychotropic Substance with neutral material, one drug is heroin and another is methadone, lesser of commercial quantity between the quantities given against the aforesaid two respective Narcotic Drugs and Psychotropic Substance is required to be considered. For the purpose of determination of the “small quantity or commercial quantity”, in case of Entry 239 the entire weight of the mixture, / drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in the case of E. Micheal Raj (Supra) is accepted, in that case, it would be adding something to the relevant provisions of the

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statute which is not there and/or it was never intended by the legislature.”

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The learned Special Judge has thrashed the entire oral as well as documentary evidence placed on record and the learned counsel for the applicant could not point out that there are fair chances of acquittal for the purpose of determination of the present application for suspension of sentence.

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The Hon’ble Supreme Court in Preet Pal Singh vs. State of Uttar Pradesh (2020) 8 SCC 645 has laid down the following parameters for suspension of sentence, which are as follows :-

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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 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 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.

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13( 2025:HHC:44249 )

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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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14. In State (NCT of Delhi) Narcotics Control

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Bureau vs. Lokesh Chadha (2021) 5 SCC 724, the

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Hon’ble Apex Court also held as follows:

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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 Uttar Pradesh3 where Justice Indira Banerjee, speaking for the Court, observed as follows:

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“35. There is a difference between grant of bail under Section 439 of the CrPC in case of pretrial arrest and suspension of sentence under Section 389 of the 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. and Anr. (supra). 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

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14( 2025:HHC:44249 )

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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) of the Cr.P.C.”

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Learned counsel for the applicant has

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relied upon judgment of the High Court of Bombay

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in Shakil Ahmed Peer Mohd. Shaikh versus Union of India and another 2024 SCC Online Bombay 832 and the order dated 17.01.2023 passed by the Allahabad High Court in Criminal miscellaneous bail application No.40635 of 2022, titled as Amirullah @ Amir Musalman vs. State of U.P.

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In our considered opinion, the facts of the said cases are distinguishable from the present case, therefore, it is not applicable in the attending facts and circumstances of the present case.

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From the well settled exposition of law, it

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is clear that there is difference between grant of bail

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under Section 439 or 438 of Cr.P.C ( 483 or 482 of BNSS) in case of pre-arrest or pending trial bail and suspension of sentence after conviction under Section 389 of Cr.P.C (430 of BNSS). The applicant has been found guilty by the learned Court below after appreciating the entire material on record, therefore, the instant application is dismissed.

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Before parting, it is made clear that any observation made here-in-above shall not be taken

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as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observation made here-inabove which are only for the purpose of determination of the instant application.

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( Vivek Singh Thakur) Judge

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(Romesh Verma) Judge

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December 18, 2025(veena)

Prakash Kumar v. State of Hp

Case brief

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Prakash Kumar v. State of Hp

Case brief

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