Khem Raj @ Khemu vs . State Of H.P.
2025 Latest Caselaw 1979 HP

Citation : 2025 Latest Caselaw 1979 HP
Judgement Date : 16 July, 2025

Himachal Pradesh High Court

Khem Raj @ Khemu vs . State Of H.P. on 16 July, 2025

Author: Virender Singh

Bench: Virender Singh

Khem Raj @ Khemu vs. State of H.P.

Cr. Appeal No.251 of 2025

16.07.2025 Present: Mr. Arirudh R.H. Sharma, Advocate, for the applicant.

Mr. Anup Rattan, Advocate General with Mr. Tejasvi Sharma, Mr. Varun Chandel & Mr. H.S. Rawat, Additional Advocates General, for the respondent/State.

Cr.MP No.2600 of 2025

1. By way of the present application, indulgence of this

Court has been sought to suspend the judgment of conviction and

order of sentence dated 25.04.2025, passed by the Court of learned

Special Judge(II), Solan, District Solan, H.P. (hereinafter referred to

as the 'trial Court'), in Sessions Trial No.160-S/7 of 23/19, titled as

'State of H.P. Vs. Khem Raj and others'.

2. Applicant has preferred the present Criminal Appeal

against the judgment of conviction and order of sentence dated

25.04.2025, passed by the learned trial Court, whereby, the learned

trial Court has convicted the applicant for the offence punishable

under Sections 20 & 29 of the NDPS Act and sentenced him to

undergo rigorous imprisonment for a period of five years and to pay

a fine of Rs.15,000/-. In default of payment of fine, he has been

sentenced further undergo simple imprisonment for a period of six

months.

3. The present appeal, preferred by the applicant, will

take sufficient long time for its decision.

4. On the basis of the above facts, a prayer for allowing

the application has been made.

5. When, put to notice, the respondent-State has filed

the reply, disclosing therein, that the factual position with regard to

the involvement of the applicant in the present case. Apart from

this, it has also been pleaded that another case bearing FIR No.24

of 2021, dated 21.04.2021, has been found, registered under

Section 21 of NDPS Act, with Police Station, Arki. District Solan,

H.P. However, in the said case, applicant has been acquitted, vide

judgment dated 29.12.2023. This fact has been highlighted to show

that in case, the order of sentence will be stayed, in that eventuality,

the applicant may again indulge in the same activities.

6. As such, a prayer has been made to dismiss the

application.

7. Heard.

8. The sentence which has been imposed by the

learned trial Court in this case, falls within the definition of fixed term

and according to the decisions of Hon'ble Supreme Court in

'Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat',

reported in (1994) 4 SCC 421 and in 'Bhupatji Sartajji Jabraji Thakor Vs. State of Gujarat', reported in '2024 SCC OnLine SC

3320', the term which falls within the definition of 'sentence of fixed

term', is liable to be suspended. Relevant paragraph 3 of the

judgment in Bhagwan Rama Shinde Gosai's case (supra) is

reproduced, as under:-

"3. When a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter suspending the sentence, so as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted."

9. Relevant paragraph 7 of the judgment in Bhupatji

Sartajji Jabraji Thakor's case (supra), is reproduced, as under:-

"7. There is a fine distinction between a sentence imposed by the trial court for a fixed term and sentence life imprisonment. If a sentence is for a fixed term, ordinarily, the appellate court may exercise its discretion to suspend the operation of the same liberally unless there are any exceptional circumstances emerging from the record to decline. However, when it is a case of life imprisonment, the only legal test which the Court should apply is to ascertain whether there is anything palpable or apparent on the face of the record on the basis of which the court can come to the conclusion that the conviction is not sustainable in law and that the convict has very fair chances of succeeding in his appeal. For applying such test, it is also not permissible for the court to undertake the exercise of reappreciating the evidence. The emphasis is on the word "palpable" and the expression "apparent on the face of the record"."

10. Considering the factual position of this case and

considering the period of custody of 108 days, the applicant is

able to make out a case in his favour for suspending the order of

sentence.

11. Consequently, application, under consideration is

allowed and the judgment of conviction and order of sentence

dated 25.04.2025, passed by the learned trial Court, is ordered to

be suspended and the applicant, who is presently lodged in

Model Central Jail, Kanda, Shimla, District Shimla, H.P., is

ordered to be released on bail, in this case during the pendency

of the appeal, subject to the following conditions:

(i) That the applicant shall furnish personal bond in the sum of Rs.50,000/-, along with one surety of the like amount, to the satisfaction of the learned trial Court, within a period of four weeks from today, with an undertaking that he will surrender before the learned trial Court to serve the remainder substantive sentence, in case of ultimate dismissal of the present appeal, by this Court;