Ajay Chauhan vs . State Of H.P.
2023 Latest Caselaw 18158 HP

Ajay Chauhan vs. State of H.P.

Cr. A. No. 490/2023 20.11.2023 Present: Mr. George, Advocate, for the appellant.

Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. Navlesh Verma & Ms. Sharmila Patial, Addl. A.Gs. for the respondent-State.

Cr.MP No. 4074/2023

This application has been filed by the convict/

applicant under Section 389(1) (2) of the Code of Criminal

Procedure (for short 'Code') for suspension of conviction

and sentence and for grant of bail.

2 The convict/applicant has preferred an appeal

under Section 374 (2) of the Code against the

judgment/order of conviction and sentence dated

25.07.2023 passed by the learned Special Judge-II,

Kinnaur at Rampur Bushahr, District Shimla, H.P.

whereby he has been convicted and sentenced to undergo

rigorous imprisonment for a period of 10 years and to pay

a fine of Rs.1,00,000/- and in default of payment of fine to

further undergo simple imprisonment for a period of one

month under Section 21 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'ND&PS Act').

3 It is submitted on behalf of the convict/applicant

that the punishment as imposed by the learned Court

below is far too excessive given the fact that even as per

the prosecution case, recovery of 5.68 grams of heroin is

stated to have been effected from the conscious possession

of the applicant which is an intermediate quantity and is

far less than the commercial quantity of above 250 grams.

It is further averred that the disposal of the appeal is likely

to take considerable time and in case, the

convict/applicant is not released on bail, then the very

purpose of filing the appeal would be defeated and it is

otherwise submitted that the convict/applicant, if released

on bail, will not jump over the bail and is ready and willing

to abide by any terms and conditions that may be imposed

by this Court. The convict/applicant has further

undertaken to appear before this Court as and when

required during the pendency of the appeal.

4 The respondent-State has filed the reply, wherein

only ground taken for opposing the application is that as

per Section 32(A) of ND&PS Act, there is a specific bar on

suspension of sentence in ND& PS cases. Therefore, the

convict/applicant should not be released on bail.

5 We have heard the learned counsel for the parties

and have gone through the records of the case.

6 Records of the case reveal that the

convict/applicant has admittedly been convicted and

sentenced for being in conscious possession of 5.68 grams

of heroin.

7 It is not in dispute that the quantity of heroin

ranging from 5 to 250 grams falls in the category of

intermediate category and is far too less than to the

maximum limit of intermediate quantity of 250 grams. The

convict/applicant is in custody since 6.1.2023 and there is

no material on record, which may even remotely suggest

that the convict/applicant in the event of being released on

bail would flee or jump over the conditions of bail granted

to him. This is more so when convict/applicant, is local

resident of village Tangru, Post Office Jhakri, Tehsil

Rampur, District Shimla, and is having roots in the

society.

8 The appeal filed by the convict/applicant after

hearing has been admitted only on 19.10.2023 and its final

adjudication is likely to take some time.

9 As observed above, the convict/applicant has

undertaken not to misuse the liberty if released on bail and

would abide by the conditions, as would be imposed by

this Court.

10 In the given facts and circumstances of the case,

we are of the considered view that it will be expedient in

the interest of justice in case the substantive sentence of

imprisonment and fine as imposed on the

convict/applicant vide judgment/order dated 25.7.2023 is

suspended till the disposal of the appeal and the

convict/applicant is ordered to be released on bail.

11 Accordingly, the instant application is

allowed. The substantive sentence of imprisonment along

with fine as imposed by the learned Special Judge-II on the

convict/ applicant vide judgment/order dated 25.7.2023 is

ordered to be suspended till the final disposal of the appeal

and the convict/applicant is ordered to be released on bail

subject to his furnishing personal bond in the sum of

Rs.1,00,000/- (Rs. One Lac) with one local surety in the

like amount to the satisfaction of the concerned Jail

Superintendent. The convict/applicant shall specifically

undertake therein that in case he remains unsuccessful in

the appeal, he shall immediately surrender before the

learned Special Judge-II, Kinnaur at Rampur Bushahr,

District Shimla, H.P. to receive the remaining part of the

sentence. Release warrants be prepared accordingly. The

application stands disposed of.

KALYAN Digitally signed by KALYAN CHAND AWASTHI DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, (Tarlok Singh Chauhan) Phone=068e8173504da3a6d6e56308707033e63c7253b 4e6eb0f2a8f0285cdb5737f49, PostalCode=171001, Judge CHAND S=Himachal Pradesh, SERIALNUMBER=7fe19e609f07c9899a24f7f61744de9a 7a35cc62f67431d8415b71bf186fbd4f, CN=KALYAN CHAND AWASTHI Reason: I am approving this document

AWASTHI Location:

Date: 2023-11-20 15:24:47

(Satyen Vaidya) Judge 20.11.2023 (pankaj)