Himachal Pradesh High Court
Rahul Sharma & Anr. vs . State Of H.P. on 2 May, 2025
Author: Virender Singh
Bench: Virender Singh
Rahul Sharma & Anr. Vs. State of H.P.
Cr. Appeal No.495 of 2023
02.05.2025 Present: Mr. Rajeev Sharma, Advocate for appellant
No.2/applicant.
Mr. H.S. Rawat, Additional Advocate General
with Ms. Ranjna Patial, Deputy Advocate
General, for the respondent.
CrMP No.1471 of 2025
By way of the present application, moved by
the applicant (appellant No.2), indulgence of this Court
has been sought to suspend the judgment of conviction
dated 27.09.2023 and order of sentence dated
29.09.2023, passed by the Court of learned Special
Judge, Hamirpur, District Hamirpur, H.P. (hereinafter
referred to as the 'trial Court'), in NDPS Trial No.34 of
2020, titled as 'State of H.P. Vs. Rahul Sharma & Anr.'.
2. Appellants-Rahul Sharma and Aditya Vashisth
(applicant) have preferred the present Criminal Appeal
against the judgment of conviction dated 27.09.2023
and order of sentence dated 29.09.2023, passed by the
learned trial Court, whereby, the learned trial Court has
convicted the applicants for the offence punishable
under Section 21(b) of the NDPS Act and sentenced
them to undergo rigorous imprisonment for a period of
seven years and to pay a fine of Rs.50,000/-. In default
of payment of fine, they have been further sentenced to
undergo rigorous imprisonment for one year.
3. The custody certificate of the applicant
(appellant No.2), dated 18.03.2025, has been placed on
record, in terms of which, applicant/appellant No.2-
Aditya Vashisth has undergone 01 year, 06 months and
09 days of imprisonment.
4. The present appeal, preferred by the
appellants, will take sufficient long time for its decision.
5. 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."
6. 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"."
7. Moreover, the order of sentence in issue has
already been suspended, so far as it relates to
appellant No.1-Rahul Sharma, vide order dated
19.03.2025, passed by this Court in CrMP No.4524 of
2024.
8. Consequently, application, under
consideration, is allowed and the order of sentence
dated 29.09.2023, passed by the learned trial Court,
so far as it relates to appellant No.2-Aditya Vashisth
(applicant), is ordered to be suspended and appellant
No.2-Aditya Vashisth (applicant), who is presently
lodged in Model Central Jail, Kanda, 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;
(ii) That the applicant shall deposit the fine
amount, with the learned trial Court, within a
period of four 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 02, 2025 ( Virender Singh )
(Gaurav Thakur) Judge
