Delhi High Court

Ashish vs State Nct Of Delhi on 8 October, 2025

                          $~
                          *        IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                  Reserved on: 16.09.2025
                                                             Pronounced on: 08.10.2025
                          +        CRL.A. 677/2025 & CRL.M.(BAIL)1078/2025

                                   ASHISH                                    .....Petitioner
                                                           Through:    Mr. Karan Verma, Ms.
                                                                       Nayan Maggo, Mr. Yash
                                                                       Arora, Mr. Yuvraj Singh,
                                                                       Advs.
                                                        Versus
                                   STATE NCT OF DELHI                        .....Respondents
                                                           Through:    Mr.     Yudhvir     Singh
                                                                       Chauhan, APP for the
                                                                       State with SI Anil, PS
                                                                       Seemapuri.
                          CORAM:
                          HON'BLE MR. JUSTICE RAVINDER DUDEJA
                                                     JUDGMENT

RAVINDER DUDEJA, J.

CRL.M.(BAIL)1078/2025 (seeking suspension of sentence)

1. The present application is filed under Section 389(1) Cr.P.C.

[Section 430 BNSS, 2023] by the appellant seeking suspension of

sentence and release on bail during the pendency of Criminal Appeal

No.677/2025 against the Judgement dated 27.01.2025 and Order on

Sentence dated 28.01.2025 passed by Ld. Special Judge (NDPS),

Shahdara, Karkardooma Courts, Delhi ["trial court"], for the offence

punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 ["NDPS Act"], whereby the

appellant was sentenced to Rigorous Imprisonment for 10 years with

fine of Rs.1,00,000/-, in default to undergo further 6 months RI.

Factual background

2. Prosecution case, briefly stated, is that on 22.06.2022, the

appellant along with co-accused Mukesh Mishra was apprehended

near Kalyan Hospital, Seemapuri, while carrying three bags containing

commercial quantity of ganja. From the appellant, two bags were

recovered containing 25.086 kg ganja, while co-accused namely

Mukesh Mishra allegedly possessed 20.588 kg ganja. Subsequently,

FIR No.532/2022 under Sections 20/29 NDPS Act was registered at

PS Seemapuri, and both accused were arrested.

3. Upon completion of investigation, charges were framed under

Section 20(b)(ii)(C) NDPS Act for possession of commercial quantity

of Ganja. The Ld. trial court vide judgment dated 27.01.2025 and

order on sentence dated 28.01.2025, sentenced the appellant and co-

accused Mukesh Mishra to rigorous imprisonment for ten years with

fine of Rs.1,00,000 each, and in default, further imprisonment of six

months.

4. The appellant being aggrieved by the conviction and sentence,

has preferred the instant appeal challenging both the conviction and

the sentence awarded to him by the Ld. Trial court. The appeal has

already been admitted as CRL.A. no. 677/2025 and is pending final

hearing before this Court.

5. The appellant has filed the present application seeking

suspension of his sentence and release on bail during the pendency of

appeal preferred by him.

Submissions on behalf of the Appellant

6. Learned counsel for the appellant submitted that the conviction

is based on conjectures and surmises and that there are procedural

lapses in the prosecution case.

7. It is submitted that the conviction by the Ld. Trial court rests

solely on testimonies of police officials, without any independent

witness, despite recovery being effected in a public place. It is further

submitted that no photographs, videography or CCTV footage was

produced, although cameras were installed in the vicinity.

Furthermore, the recovery witnesses have made contradictory

statements regarding the place of duty, the apprehension of the

accused, and even the identification of the alleged contraband.

8. It is contended that there was unexplained delay in drawing

samples and forwarding them for FSL examination which is contrary

to Section 52A NDPS Act. Such a conviction, unsupported by credible

and independent evidence is a grave violation of the appellant's rights

under Articles 14 and 21 of the Constitution. It is also submitted that

co-accused Mukesh was granted bail by the Court pending trial vide

order dated 11.11.2024.

9. The Ld. Counsel submitted that the appeal raises substantial

questions of law and fact, particularly in regard to the alleged

recovery, procedural lapses under the NDPS Act, and absence of

independent witnesses. The appellant has been in custody since

22.06.2022 (i.e. for almost 03 years) and has undergone substantial

period of incarceration and his conduct is "Satisfactory" as per the

Nominal Roll dated 21.07.2025.

10. The Ld. Counsel urged that the appeal is not likely to be heard

in near future, and continued incarceration will cause grave prejudice

to the appellant and hence it is prayed that the sentence of the

appellant be suspended and he be released on bail.

Submissions on behalf of the State

11. Per contra, learned APP opposed the application and submitted

that the offence is of grave nature and has a negative impact on the

society. It is submitted that the recovery of contraband (Ganja) from

the appellant is of commercial quantity, and strict rigors of NDPS Act

apply. It is argued that the Ld. Trial Court has passed a well-reasoned

judgment after appreciating the entire evidence. It is contended that

given the serious nature of the offence, the appellant does not deserve

the suspension of sentence.

Analysis and Reasoning

12. I have considered the rival submissions and perused the material

on record.

13. It is trite that suspension of sentence under Section 389 Cr.P.C.

(Section 430 BNSS) is not a matter of right and the nature and gravity

of the offence committed are vital considerations for deciding such

application. In the present case, the recovery effected from the

appellant is of 25.086 kg ganja, which squarely falls within the

definition of commercial quantity.

14. The argument regarding non-joining of public witnesses does

not render the prosecution case doubtful at this stage. The trial court

has relied on consistent testimony of police witnesses, duly

corroborated by seizure memos, FSL report, and chain of custody. It is

well settled that police officers are not to be disbelieved merely

because they are official witnesses, unless motive to falsely implicate

is demonstrated as held in Sunil Tomar V. State of Punjab, Criminal

Appeal no. 1690-1691 of2012. In Ajmer Singh V. State of Haryana,

2010 (2) SCR785 it was held that if public witness could not be joined

despite efforts having been made by police, then non-joining of such

independent witness is not fatal to the prosecution case. The Hon'ble

Supreme Court in Rohtas V. State of Haryana, JT 2013(8) SC 181

held that police officials are considered to be equally competent and

reliable witnesses and their testimony can be relied upon even without

corroboration by an independent witness if same is cogent and

reliable.

15. The recovery cannot be doubted merely due to non-joining of

independent/public witness. The Ld. Trial Court, while convicting the

appellant, has specifically held that the recovery of ganja was proved

beyond reasonable doubt. The testimonies of recovery witnesses were

found credible and consistent. The argument regarding absence of

independent witnesses does not by itself vitiate recovery when the

testimony of police witnesses is otherwise trustworthy, as held in State

v. Sunil (2001) 1 SCC 652.

16. The contention regarding non-collection of CCTV footage or

lack of videography may constitute a deficiency; however, such

omission cannot by itself vitiate seizure proceedings. The present case

is of a chance recovery which occurred at about 3 AM. Hence, non-

production of CCTV footage cannot be a sole ground to discard

recovery, particularly when seizure memos, FSL report and consistent

depositions corroborate the prosecution version.

17. Furthermore, reliance placed by the appellant on the order dated

11.11.2024 granting bail to co-accused Mukesh is misplaced. The said

observations were made at a pre-conviction stage when the

presumption of innocence was available. Now, after conviction on

merits, those prima facie observations lose significance.

18. The objective of the NDPS Act, 1985 is to curb the menace of

drug trafficking, protect society from the devastating impact of

narcotics, and deter offenders by prescribing stringent punishment.

The Supreme Court in Shivani Tyagi v. State of U.P. & Anr., (2024

SCC OnLine SC 842) held that in serious offences, suspension should

be the exception, not the rule. The mere fact of incarceration or delays

in appeal process cannot justify suspension unless accompanied by an

assessment of seriousness and other statutory factors.

19. The Supreme Court in Sonadhar v. State of Chattisgarh, 2021

SCC OnLine SC 3182 and Saudan Singh vs. The State of Uttar

Pradesh, 2021 SCC OnLine SC 3259 held that the applications for

suspension of sentence may be considered once the appellant has

undergone 50% of their sentence prescribed. Perusal of the Nominal

roll of the appellant shows that he was sentenced to undergo a

cumulative sentence of RI for 10 years and that at present, he has

undergone almost 03 years of his sentence leaving an unexpired

portion of almost 07 years. The appellant has not undergone 50% of

his sentence and hence he is unfit to take the averment that his

sentence be suspended as he has completed 50% of the sentence

awarded to him.

20. The Supreme Court in Jamnalal Vs. State of Rajasthan &

Anr., 2025 INSC 935observed that while deciding an application of

suspension of sentence of the accused, the High Court must assess if

the convict has a fair chance of acquittal. The relevant paras are

reproduced hereinunder:

"10. One would have expected the High Court hearing an application under Section 389 of Cr.P.C. for suspension of sentence to examine whether prima facie there was anything palpable on the record to indicate if the accused had a fair chance of overturning the conviction. In Omprakash Sahni v. Jai Shankar Chaudhary and Another, this Court had the following to say on the scope of Section 389 of the Cr.P.C.

"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 competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.

24. From perusal of Section 389 CrPC, it is evident that save and except the matter falling under the category of subsection (3) neither any specific principle of law is laid down or 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 competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post conviction stage viz. Sections 437, 438, 439 and 389(1)CrPC.

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 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 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 re-appreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or therein the case of the prosecution. Such would not be a correct approach."

21. In NDPS matters, the interest of justice demands that such

convicts should not be released merely on account of the long

pendency of appeal, unless exceptional circumstances are shown. No

exceptional or compelling circumstance has been brought to the fore

that would warrant suspension of sentence at this stage.

22. In the present case, the appellant was in possession of

commercial quantity of 25.086 kgs of Ganja and was convicted of

offence under section 20(b)(ii)(C) of NDPS Act- being an offence of a

grave and serious nature. At this stage, after conviction on merits, the

presumption of innocence no longer operates in favour of the

appellant. This Court is not prima-facie convinced on the basis of

grounds pressed that appellant has fair chances of acquittal.