Akshay Kumar Vs State of Hp

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP No.2625 of 2025 in Cr.Appeal No.238 of 2024 and

Cr.MP. No.2626 of 2025 in Cr.Appeal No. 233 of 2024 Reserved on 23.12.2025 Date of Decision: 0.5 01.2026

_________________________________________________ 1. Cr.MP No.2625 of 2025 in Cr. Appeal No. 238 of 2024 Akshay Kumar ...Applicant

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Versus

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State of H.P.

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...Respondent . 2. Cr.MP No.2626 of 2025 in Cr. Appeal No. 233 of 2024 Harsh Sharma ….Applicant. Versus State of H.P. …….Respondent

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Coram

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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(s) : Mr. Manoj Pathak, Advocate. For the respondent : Mr. I.N. Mehta, Senior Additional Advocate General, with Mr.Raj Negi, Deputy Advocate General.

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___________________________________________________ Romesh Verma, Judge

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This order shall dispose off two applications, one

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filed by the applicant Akshay Kumar, being Cr.MP No. 2625

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of 2025 and another filed by applicant-Harsh Sharma being

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Cr.MP No. 2626 of 2025, under Section 430 of Bharatiya

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

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2( 2026:HHC:851 )

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Nagarik Suraksha Sanhita, 2023, for the suspension of sentence dated 04.05.2024, passed by the learned Special Judge-II, Kinnaur at Rampur Bushahr, District Shimla, HP.

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Since both the present applications arise out of the same FIR, common trial and common judgment, therefore, both the applications were taken up together for consideration and are being disposed off by this common order.

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The applicants have approached this Court for the suspension of sentence by stating that the case as made out against them by the prosecution is false and they have been falsely implicated in a planted case.

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It is the case of the applicants that in the present case, they have got no role to play and the judgment of conviction and order of sentence passed by the learned Court below are bad in the eyes of law.

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It has been submitted by the applicants that they are in custody for a considerable period. It is further stated that the applicants have got strong prima facie and arguable

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3( 2026:HHC:851 )

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case in their favour and there are fair chances of their acquittal in the present appeals.

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Both the applications have been vehemently objected/resisted by the State.

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As per reply filed by the State,it has been stated that the present applicants are involved in heinous offence and the learned Special Judge-II, Kinnaur at Rampur Bushahr, District Shimla, has taken into consideration the entire oral as well as documentary evidence, placed on record and has rightly convicted them for the commission of offence punishable under Sections 20(C) and 29 of NDPS Act, 1985.

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It is contended by Sh. I.N. Mehta, Sr. Additional Advocate General that keeping in view the gravity of offence, no leniency should be shown to the applicants and the present applications deserve to be rejected.

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We have heard Sh. Manoj Pathak, learned counsel for the applicants and Sh. I.N. Mehta, learned Sr. Additional Advocate General for the State.

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4( 2026:HHC:851 )

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Sh, Manoj Pathak, learned counsel for the applicants has argued that the learned Special Judge-II, Kinnaur at Rampur Bushahr, District Shimla, while convicting the present applicants has wrongly held them to be in criminal conspiracy between the accused persons. As per the version of the learned counsel, the accused Gurjant Singh has divulged the role of the present applicants and on the basis of confessional statement,the present applicants have been roped in a false case.

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Learned counsel for the applicants has further submitted that the prosecution has examined PW-6 Ajeet Mehta, who has stated in his testimony that he was running a highway food and home stay in front of Katoch dhaba at Arpu since 2017. As per the testimony of this witness, on 22.06.2021, at about 6. a.m., two young boys came to his counter and asked for room. He allotted a room to them on

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second floor and when the police came on the spot and asked him, he handed over to them the photocopy of visitor’s register dated 22.06.2021, which was taken into possession vide memo Ext.P-1/P6. Learned counsel for the applicants submits that the owner of the dhaba has not

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5( 2026:HHC:851 )

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named the present applicants in his testimony. He further submits that PW-6 has no where stated that on 22.06.2021, the applicants with the main accused stayed in his home stay or visited his home stay in the company of accused Gurjant Singh from whose conscious possession the contraband was confiscated.

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It is the contention of learned counsel for the applicants that as far as the CDR is concerned, the mobile number 8580490594 does not belong to the applicant Harsh Sharma rather as per the customer application form, the said number belongs to Yog Raj.

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Sh. Arun Mishra, Nodal Officer Reliance Jio Circle H.P. has been examined by the prosecution as PW19. In his deposition, he has stated that he is posted as Nodal Officer, Reliance Jio, H.P. since September, 2015. He has stated that on 11.02.2022, an application Ext.P-1/PW19 was received in the office with a request to provide CDR of mobile number 8894802524,8580605818 and 8580490549.

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In his cross-examination he had stated that there is no mention of the tower ID location in the CDR. He further stated that Akshay Kumar’s mobile number does not

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6( 2026:HHC:851 )

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belong to Reliance Jio. He has further stated that customer application form of Gurjant Singh was not sought by the police.

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In the cross examination by learned counsel for accused No.3, PW-19 has admitted that mobile phone No.8580490549 is issued in the name of one Yog Raj as per record. He further stated that customer application form of Gurjant Singh was not sought by the police.

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The prosecution has based its case on the confessional statement Ext.P-1/PW7 as made by Gurjant Singh on 24.06.2021.

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The Hon’ble Supreme Court had the occasion to deal with the issue in case titled as State (By NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another

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(2022) 12 SCC 633 , on the point of confessional statement and has held as follows:

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“11. Having gone through the records alongwith the tabulated statement of the respondents submitted on behalf of the petitioner-NCB and on carefully perusing the impugned orders passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves

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7( 2026:HHC:851 )

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recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569/2021, none of the other respondents were found to be in possession of commercial 6 ( 2025:HHC:45122 ) quantities of psychotropic substances, as contemplated under the NDPS Act. 12. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019……..”

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The statements of PW-6 and PW19 create

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doubt in the prosecution story and this is being observed

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so only for the determination of the present applications for the suspension of sentence.

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8( 2026:HHC:851 )

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The Hon’ble Apex Court in the case of Tofan

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Singh vs. State of Tamil Nadu (2021) 4 SCC 1 has

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held that confessional statement recorded under Section 67 of the NDPS Act will remain in admissible in the trial of offence under NDPS Act. It has been further held that an arrest made by the prosecution on the basis of the confessional/voluntary statements of the co-accused under Section 67 of the NDPS Act cannot form the basis for denying the benefit of release on bail.

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It has also been held in the case of Tofan Singh (supra) that CDR details of some of the accused, or allegations of tampering with the evidence on the part of one of the respondents, is an aspect that will be examined at the stage of the trial.

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There is force in the pleas as taken by the learned counsel for the applicants and a prima-facie case has been made out by the applicants for the suspension of sentence during the pendency of the appeal.

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9( 2026:HHC:851 )

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At this stage, we are only dealing with the applications for the suspension of sentence and the merits of the entire case in depth and detail shall be considered at the time of hearing of the main appeals.

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Therefore, faced with the situation, without commenting upon the merits of the entire evidence, we are of the opinion that for determination of the present applications, the applicants have made out a prima facie case for suspension of substantive sentence imposed upon them and for their enlargement on bail as the final hearing in the appeals may take some time, since both the appeals pertain to the year 2024.

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In view of above, the present applications are allowed and the substantive sentence imposed upon the applicants/ appellants by the Court below is suspended subject to their furnishing personal bonds in the sum of Rs.1,00,000/- each with one surety each in the like amount to the satisfaction of the Court below within a period of four weeks from today undertaking therein to appear before the Court as and when directed to do so

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and also to surrender before the Court in case of

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10( 2026:HHC:851 )

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dismissal of their appeals. Bail bonds so furnished by the applicants shall be transmitted by the Court below to this Court for placing the same on record.

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Before parting, it is made clear that any observation made here-in-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observations made here-in-above, which are only for the purpose of determination of the instant applications.

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Parties are permitted to produce a copy of this order downloaded from the web-page of the High Court of Himachal Pradesh before the Court below and the Court below shall not insist for production of a certified copy of order, rather, the Court below shall verify passing of this order from the web-page of the High Court.

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( Vivek Singh Thakur) Judge Digitally signed by VEENA VEENA SHARMA Date: SHARMA 2026.01.05 15:31:50 +0530 (Romesh Verma) Judge

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January 5, 2026(veena)

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11( 2026:HHC:851 )

Akshay Kumar v. State of Hp

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Akshay Kumar v. State of Hp

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