Himachal Pradesh High Court
Virender Sharma vs . State Of H.P. on 1 May, 2025
Author: Virender Singh
Bench: Virender Singh
Virender Sharma Vs. State of H.P.
Cr. Appeal No.56 of 2025
01.05.2025 Present: Mr. Mukesh Sharma, Advocate for the
appellant.
Mr. H.S. Rawat, Additional Advocate General
with Mr. Rohit Sharma and Ms. Ranjna Patial,
Deputy Advocates General for the respondent.
Admit.
2. List along with Cr. Appeal No.599 of 2024.
CrMP No.313 of 2025
3. By way of the present application, indulgence
of this Court has been sought to suspend the order of
sentence dated 05.10.2024, 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.29-S/7 of 23/19, titled as 'State of H.P. Vs. Jai
Kumar & Anr.'.
4. Applicant-Virender Sharma has preferred the
present Criminal Appeal against the judgment of
conviction and order of sentence dated 05.10.2024,
passed by the learned trial Court, whereby, the learned
trial Court has convicted the applicant for the offence
punishable under Section 21 read with Section 29 of
the NDPS Act and sentenced him to undergo rigorous
imprisonment for a period of 5 years and to pay a fine of
Rs.25,000/-. In default of payment of fine, he has
further been sentenced to undergo simple
imprisonment for a period of six months.
5. The present appeal, preferred by the applicant,
has been admitted for hearing and it will take sufficient
long time, for its decision.
6. The sentence, which has been imposed by the
learned trial Court, in this case, falls within the
definition of 'fixed term sentence' and according to the
decisions of the 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
sentence, imposed by the learned trial Court, which
falls within the definition of 'fixed term sentence', can
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."
7. 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 re-
appreciating the evidence. The emphasis is on the
word "palpable" and the expression "apparent on
the face of the record"."
8. Consequently, application, under consideration
is allowed and the order of sentence dated 05.10.2024,
passed by the learned trial Court, is ordered to be
suspended, during the pendency of the appeal, and
applicant-Virender Sharma, who is presently in judicial
custody, in Model Central Jail, Kanda, District Shimla,
H.P. is ordered to be released on bail, in this case,
subject to the following conditions:
(i) That the applicant shall furnish personal
bond in the sum of Rs.1,00,000/-, along with
two sureties 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;
(ii) That the applicant shall deposit the fine
amount, with the learned trial Court, within a
period of two weeks from today, if not, already
deposited by the applicant.
(iii) The applicant shall not leave the territory of
India without the prior permission of the Court.
9. Application is, thus, disposed of.
10. A copy of this order be sent to the learned
trial Court, with a direction that the report of
compliance of this order be submitted to this Court.
May 01, 2025 ( Virender Singh )
(Gaurav Thakur) Judge
