Decided On: 02.06.2025 vs State Of Himachal Pradesh
2025 Latest Caselaw 987 HP

Himachal Pradesh High Court

Decided On: 02.06.2025 vs State Of Himachal Pradesh on 2 June, 2025

Bench: Tarlok Singh Chauhan, Sushil Kukreja

                                                1               Neutral Citation No. ( 2025:HHC:17158 )



    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                    Cr. MP No. 287 of 2025 in
                                                    Cr. Appeal No. 196 of 2023

                            Decided on: 02.06.2025
_____________________________________________________
Vipin Thakur                    .....Appellant/applicant.
                        Versus

State of Himachal Pradesh         ......Respondent/non-applicant.
_____________________________________________________
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
1
  Whether approved for reporting? Yes.
_____________________________________________________
For the applicant:          Ms. Swati Sharma and Mr. Varun
                            Chauhan, Advocates.
For the non-applicant/State: Mr. I.N. Mehta, Senior Additional
                             Advocate    General,     with    Mr.
                             Ramakant Sharma, Mr. Navlesh
                             Verma, Ms. Sharmila Patial, Mr.
                             Sushant     Kaprate,      Additional
                             Advocates General, and Mr. Raj Negi,
                             Deputy Advocate General.

Sushil Kukreja, Judge. (Oral)

This order shall dispose of application, filed by the

applicant/appellant Vipin Thakur, under Section 430 of The

Bharatiya Nagarik Suraksha Sanhita, 2023, seeking suspension of

sentence awarded by the learned Special Judge-II, Kinnaur at

Rampur Bushahr, District Shimla, H.P., vide judgment of

conviction, dated 20.03.2023, and order of sentence, dated

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

2 Neutral Citation No. ( 2025:HHC:17158 )

21.03.2023, in Case No. CIS Registration No. NDPS/28/2021, for

the commission of offences punishable under Sections 18(c) and

20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act,

1985 (hereinafter referred to as "the NDPS Act") and releasing him

on bail.

2. The learned Counsel for the appellant/applicant

contended that the appellant/applicant has got a very good

arguable case on merits, as the evidence relied upon by the

learned Trial Court is shaky, thus not tenable in the eyes of law.

She also contended that the prosecution has failed to comply with

the mandatory provisions of the Act, which castes a doubt qua the

alleged recovery from the conscious possession of the

appellant/applicant. She further contended that there are material

contradictions in the statements of the prosecution witnesses,

which the learned Trial Court has lightly brushed aside and there is

no evidence at all which shows that the appellant/applicant had

any connection with the alleged contraband. She also submitted

that as the applicant has already undergone sentence of more

than four years and four months, as against the total sentence of

ten years awarded to him and the appeal is not likely to be decided

in near future, therefore, in view of the peculiar facts and

circumstances of the case, the sentence imposed upon the 3 Neutral Citation No. ( 2025:HHC:17158 )

appellant/applicant by the learned Trial Court be suspended in the

interest of justice and fair play.

3. Per contra the learned Additional Advocate General

contended that the appellant/applicant is not entitled for

suspension of sentence, as huge quantity of contraband, i.e.,

802.45 grams of charas and 560.20 grams of opium, was

recovered from the exclusive and conscious possession of the

appellant/applicant and the learned Trial Court had found him

guilty. It is further contended that after the judgment of conviction,

there is no presumption of innocence in favour of the

appellant/applicant and the instant application, being devoid of

merits, deserves to be dismissed.

4. We have heard the learned counsel for the

applicant/appellant as well as learned Additional Advocate General

and have also gone through the material available on record.

5. The perusal of the record reveals that learned Special

Judge-II, Kinnaur at Rampur Bushhahr, District Shimla, H.P., for

the alleged alleged involvement of the applicant/appellant in

possessing 802.45 grams of charas and 560.20 grams of opium,

vide judgment of conviction, dated 20.03.2023, and order of

sentence, dated 21.03.2023, convicted him under Sections 18(c)

of the NDPS Act and sentenced him to undergo rigorous 4 Neutral Citation No. ( 2025:HHC:17158 )

imprisonment for a period of ten years and to pay fine of

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

simple imprisonment for a period of two years. The

applicant/appellant was also convicted under Section 20(b)(ii)(B) of

the NDPS Act and sentenced to undergo rigorous imprisonment for

a period of ten 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 two years.

6. Before adverting to the rival contentions raised by the

learned counsel for the appellant/applicant as well as learned

Additional Advocate General for the non-applicant/State, it would

be beneficial to refer to the settled legal position, to the effect that

when the appellant/applicant accused is convicted by the

competent Criminal Court, the initial presumption of innocence is

no more available to him.

7. In State of Maharashtra vs. Madhukar Wamanrao

Smarth, (2008) 5 SCC 721, the Hon'ble apex Court referred to the

parameters delineated in Kishori Lal vs. Rupa & others, (2004) 7

SCC 638 to be observed by the High Court while dealing with an

application for suspension of sentence and grant of bail and

reiterated the view taken in Vasant Tukaram Pawar vs. State of

Maharashtra, (2005) 5 SCC 281. The relevant part runs as under:

5 Neutral Citation No. ( 2025:HHC:17158 )

"10. The parameters to be observed by the High Court while dealing with an application for suspension of sentence and grant of bail have been highlighted by this Court in many cases. In Kishori Lal v. Rupa it was observed as follows:

"4. Section 389 of the Code of Criminal Procedure, 1973 (in short "the Code") deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

The above position was reiterated in Vasant Tukaram Pawar v. State of Maharashtra (2005 (5) SCC 281)"

8. In Preet Pal Singh v. State of U.P. & Anr. reported in

(2020) 8 SCC 645, the Hon'ble Supreme Court of India held that

for grant of post-conviction bail to a convict under Section 389 of

Code of Criminal Procedure, there has to be strong and compelling

reasons and such strong and compelling reason must be recorded

in the order granting bail. The relevant para of the aforesaid

judgments reads as under:

"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 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. (2018 3 SCC

22). 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 6 Neutral Citation No. ( 2025:HHC:17158 )

there is conviction upon trial. 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."

9. In (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC

724, it was held that the principle of bail being the rule and jail

being an exception cannot be attracted, once there is conviction

upon trial. The relevant para of the aforesaid judgment reads as

under:

"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 U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645 : (2020) 3 SCC (Cri) 897] where Indira Banerjee, J., speaking for the Court, observed as follows : (SCC p. 655, para 35)

"35. There is a difference between the grant of bail under Section 439 CrPC in case of pre- trial arrest and suspension of sentence under Section 389 CrPC and the grant of bail, post- conviction. In the earlier case there may be a 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. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] 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 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 7 Neutral Citation No. ( 2025:HHC:17158 )

389(1) CrPC."

10. It has further been laid down by the Hon'ble Supreme

Court in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6

SCC 123 that while deciding the application for suspension of the

sentence, the Court should consider whether the applicant has a

fair chance of acquittal. The relevant para of the aforesaid

judgment is extracted hereunder:

""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 the 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 of the Cr. PC, it is evident that save and except the matter falling under the category of sub-Section 3 neither any specific principle of law is laid down nor 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 the 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) of the Cr. PC.

25 to 32 xxx

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 above said 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 take 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 reappreciate the evidence at the stage of Section 389 of the Cr. PC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach."

8 Neutral Citation No. ( 2025:HHC:17158 )

11. Taking into consideration the position of law, as can be

gathered from various judgments of the Supreme Court, it is very

clear that discretion at the time of considering the plea of the

accused for suspension of sentence pending final hearing of

appeal has to be exercised judiciously and not as a matter of

course as once the conviction is recorded, the presumption of

innocence is no longer available to the appellant. A perusal of

Section 430 of BNSS would show that suspension of sentence

during pendency of appeal is not the absolute right of the convict.

The discretion to suspend the sentence vests in the court and it is

required to be exercised judicially keeping in view all facts and

circumstances and the nature of offence. The Court has to

exercise this discretion with utmost care and caution, balancing

one's right and liberty on one hand and the interest of the society

on the other.

12. In the instant case, the nature of the allegations

against the accused are serious, as he was found in exclusive

and conscious possession of 802.45 grams of charas and

560.20 grams of opium. The learned counsel for the

appellant/applicant highlighted some contradictions in the

statements of prosecution witnesses and also contended that

the prosecution had failed to comply with the mandatory 9 Neutral Citation No. ( 2025:HHC:17158 )

provisions of the NDPS Act, which castes a doubt qua the alleged

recovery from the conscious possession of the appellant/applicant.

However, the contentions raised by the learned counsel for the

appellant/applicant cannot be accepted at this stage, as the same

cannot be gone into in detail at the stage of deciding the present

application for suspension of sentence. Whether these

contradictions in the testimonies of the prosecution witnesses are

so glaring to affect the core of the prosecution case, can only be

examined at the stage of final hearing. In Om Prakash Sahni's

case (supra), Hon'ble Supreme Court has clearly held that the

Appellate Court should not re-appreciate the evidence at the stage

of Section 389 of the Cr.PC and try to pick up few lacunas or

loopholes here or there in the case of the prosecution, which would

not be a correct approach.

13. In view of the aforesaid discussion and keeping in

mind, the nature of conviction and sentence imposed by the

learned Trial Court, that too, after a full-fledged trial, we feel our

self persuaded to hold that the appellant/convict, at this stage, has

miserably failed to carve out a strong case for suspension of

sentence and his release on bail. The application for suspension of

sentence and release of appellant/convict on bail, therefore being

misconceived, is dismissed and stands disposed of accordingly.

10 Neutral Citation No. ( 2025:HHC:17158 )

14. Since the appeal pertains to the year 2023 and already

stands admitted, the appellant/applicant is at liberty to move

appropriate application for early hearing of the appeal.

( Tarlok Singh Chauhan ) Judge

( Sushil Kukreja ) Judge 2nd June, 2025 (virender)