Himachal Pradesh High Court
Ramesh Kumar vs . State Of H.P. on 28 May, 2025
Ramesh Kumar Vs. State of H.P.
Cr. Appeal No.158 of 2025
Reserved on: 25.04.2025
28.05.2025 Present: Mr Rajesh Kumar & Dr Om Guleria,
Advocates, for the applicant/appellant.
Mr. Lokender Kutlehria, Additional Advocate
General, for the respondent-State.
Cr. MP No.1341 of 2025
The applicant/appellant has filed the present
application seeking suspension of the sentence. It has
been asserted that the applicant/appellant was convicted
by the learned Trial Court for the commission of offences
punishable under Sections 27(b)(ii) and 28 of the Drugs &
Cosmetics Act, 1940 and was sentenced to undergo
rigorous imprisonment for five years, pay a fine of
₹1,00,000/- and in default of payment of fine to undergo
further simple imprisonment for one year for the
commission of an offence punishable under Section 27(b)
(ii) of the Drugs & Cosmetics Act. He was also sentenced to
undergo rigorous imprisonment for one year, pay a fine of
₹20,000/- and in default of payment of the fine to undergo
further simple imprisonment for three months for the
commission of an offence punishable under Section 28 of
the Drugs & Cosmetics Act. Both the substantive sentences
of imprisonment were ordered to run concurrently. The
applicant has a prima facie case in his favour. He was on
bail throughout the trial, and in case the operation of the
judgment and order passed by the learned Trial Court is
not suspended, the very purpose of filing the appeal would
be frustrated. Hence, the application.
2. The application was opposed by filing a reply
making preliminary submissions asserting that the
application is not maintainable as there is no patent
infirmity in the findings recorded by the learned Trial
Court. The Drugs Inspector, Chamba, inspected the
applicant's shop on 24.06.2017. He found various
allopathic drugs stocked on the racks for sale and
distribution to the general public. The Drugs Inspector
asked the applicant to produce the drugs license for
purchase & sale bills or any other Certificates of a
Registered Medical Practitioner of the Allopathic system of
medicines. The applicant produced the certificate issued by
the Vice Chancellor, Hindi Sahitya Sammelan, Allahabad &
Registration Certificate issued by the State Ayurvedic &
Unani Medical Council, Bihar. The qualification submitted
by the applicant is not part of the Second Schedule of the
Indian Medicine Central Council Act, 1970, and the
applicant is not authorised to practice as a Registered
Medical Practitioner and to open/run an allopathic medical
shop. The applicant cannot indulge in the practice of
Allopathic Medicine without a valid license. The drugs
were sent for analysis. The Drugs Inspector verified the
certificates from the Medical Council of India, and the
applicant was not found to be registered with the Medical
Council of India. The Drugs Inspector conducted the
investigation and filed the complaint before the Court. The
Court conducted the trial and convicted the applicant. The
offences committed by the applicant are serious in nature,
as the safety of the public was compromised. Therefore, it
was prayed that the present application be dismissed.
3. I have heard Mr. Rajesh Kumar, learned
counsel for the applicant and Mr. Lokender Kutlehria,
learned Additional Advocate General, for the respondent-
State.
4. Mr. Rajesh Kumar, learned counsel for the
applicant, submitted that the applicant had a valid
Certificate, which was not verified by the competent
authority. As per the answer given by the Minister of
Health and Family Welfare in the Rajya Sabha, the State
Government can authorise a person practising in
Ayurveda, Unani, Siddha and Homoeopathy Systems to
prescribe allopathic medicines. The State of Himachal
Pradesh had issued such a notification, and the applicant
can possess the allopathic medicines. The applicant has
not been stocking/storing the medicines for sale, and there
is no evidence to show such a fact. Therefore, it was prayed
that the present application be allowed and the sentence
imposed by the learned Trial Court be suspended.
5. Mr Lokender Kutlheria, learned Additional
Advocate General for the respondent-State, submitted that
the applicant has produced a certificate issued by the Vice
Chancellor of Hindi Sahitya Sammelan, Allahabad, which
is not recognised. He had no right to possess the
medicines, and he was rightly held guilty by the learned
Trial Court. Therefore, he prayed that the present
application be dismissed.
6. I have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
7. It was submitted that the applicant was on bail
throughout the trial, and he is entitled to bail as a matter
of right. This submission is not acceptable. It was laid
down by the Hon'ble Supreme Court in State of Haryana v.
Hasmat, (2004) 6 SCC 175: 2004 SCC (Cri) 1757: 2004 SCC
OnLine SC 741 that the mere fact that the accused was on
bail during the trial and he had not misused his liberty is
no reason to suspend the sentence. It was observed on
page 177:
"8. The learned Sessions Judge, Gurgaon by a
judgment dated 24-10-2001 had found the
accused-respondent guilty. Criminal Appeal
No. 100-DB of 2002 was filed by the
respondent. The fact that during the pendency of
the appeal the accused-respondent was on parole
goes to show that initially the accused-
respondent was not given the benefit of
suspension of execution of sentence. The mere
fact that during the period of parole, the accused
has not misused the liberties does not per se
warrant suspension of execution of sentence and
grant of bail. What really was necessary to be
considered by the High Court was whether
reasons existed to suspend the execution of
the sentence and thereafter grant bail. The
High Court does not seem to have kept the
correct principle in view.
8. It was held in Omprakash Sahni v. Jai Shankar
Chaudhary, (2023) 6 SCC 123: 2023 SCC OnLine SC 551 that
the Court should consider the gravity of the offence while
considering an application for bail under Section 389 of Cr.
P.C. It was observed:
"21. Suspension conveys postponement or
temporarily prevents a state of affairs from
continuing. According to Black's Law
Dictionary (Seventh Edition), the word "suspend"
means, inter alia, to interrupt; postpone; or
defer. Black's Law Dictionary (Seventh Edition)
describes the word "suspension" to mean, inter
alia, an act of temporarily delaying, interrupting or
terminating something. Attributing the same
meaning to the word "suspend" as pointed out
above, the New Oxford Dictionary of English (1998
Edition) describes suspending as temporarily
preventing from continuing or being enforced or
given effect or deferring or delay an action, event
or judgment.
22. Thus, when we speak of suspension of sentence
after conviction, the idea is to defer or postpone
the execution of the sentence. The purpose of
postponement of sentence cannot be achieved by
detaining the convict in jail; hence, as a natural
consequence of postponement of execution, the
convict may be enlarged on bail till further orders.
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 competent jurisdiction. Once the accused
is found 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 a perusal of Section 389 CrPC, 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
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) Crpc.
9. It was further held that while deciding the
application for suspension of the sentence, the Court
should consider whether the applicant has a fair chance of
acquittal. It was observed:
33. Bearing in mind the aforementioned principles
of law, the endeavour on the part of the court,
therefore, should be to see 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 abovesaid 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 takes very long for
decision and disposal. However, while undertaking
the exercise to ascertain whether the convict has a
fair chance 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, based on 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 CrPC and try to pick up a few
lacunae or loopholes here or there in the case of
the prosecution. Such would not be a correct
approach."
10. Similarly, it was held in (NCT of Delhi) v.
Lokesh Chadha, (2021) 5 SCC 724: (2021) 2 SCC (Cri) 704:
2021 SCC OnLine SC 178, that while granting bail under
Section 439 Cr.P.C., the Courts are liberal and apply the
principle that bail is a rule and jail is an exception;
however, in case of post-conviction bail, there is a finding
of guilt and the question of presumption of innocence does
not arise. It was observed:
"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, once there is a
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 the 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."
11. This position was reiterated in Shivani Tyagi v.
State of U.P., 2024 SCC OnLine SC 842, wherein it was
observed:
3. Section 389 of the Code of Criminal
Procedure (for short the "Cr. PC") deals with the
suspension of execution of sentence pending the
appeal against conviction and release of
appellant(s) on bail. The said provision mandates
for recording of reasons in writing leading to the
conclusion that the convicts are entitled to get
suspension of sentence and consequential release
on bail. The said requirement thus indicates the
legislative intention that the appellate Court,
invoking the power under Section 389, Cr. P.C.
should assess the matter objectively, and such
assessment should reflect in the order.
4. We will briefly refer to some of the relevant
decisions dealing with Section 389, Cr. P.C. In the
case of short-term imprisonment for conviction of
an offence, suspension of sentence is the normal
rule, and its rejection is the exception. (See the
decision in Bhagwan Rama Shinde Gosai v. State of
Gujarat (1999) 4 SCC 421). However, we are of the
considered view that the position should be vice-
versa in the case of conviction for serious offences
when the invocation of power under Section 389 is
invited. This Court, in the decision in Kishori
Lal v. Rupa (2004) 7 SCC 638, held in paragraphs 4
and 5 thus:--
"4. Section 389 of 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 the 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 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.
5. The appellate Court is duty-bound to
objectively assess the matter and to record
reasons for the conclusion that the case
warrants suspension of execution of sentence
and grant of bail. In the instant case, the only
factor which seems to have weighed with the
High Court for directing suspension of sentence
and grant of bail is the absence of an allegation
of misuse of liberty during the earlier period
when the accused-respondents were on bail."
5. In the decision in Anwari
Begum v. Sher Mohammad (2005) 7
SCC 326, this Court in paragraphs 7
and 8 held thus: --
"7. Even on a cursory perusal, the
High Court's order shows complete
non-application of mind. Though
a detailed examination of the
evidence and elaborate
documentation of the merits of the
case is to be avoided by the Court
while passing orders on bail
applications, yet a Court dealing
with the bail application should be
satisfied as to whether there is a
prima facie case, but an exhaustive
exploration of the merits of the
case is not necessary. The Court
dealing with the application for
bail is required to exercise its
discretion in a judicious manner
and not as a matter of course.
8. There is a need to indicate in the
order the reasons for prima facie
concluding why bail was being
granted, particularly where an
accused was charged with having
committed a serious offence. It is
necessary for the Courts dealing
with applications for bail to
consider, among other
circumstances, the following
factors before granting bail, they
are:
1. The nature of the accusation
and the severity of punishment in
case of conviction, and the nature
of supporting evidence;
2. Reasonable apprehension of
tampering with the witness or
apprehension of a threat to the
complainant;
3. Prima facie satisfaction of the
Court in support of the charge.
Any order dehors of such reasons
suffers from non-application of
mind as was noted by this Court
in Rama Govind
Upadhyay. Sudarshan
Singh(2002) 3 SCC 598, Puran
v.Rambilas(2001) 6 SCC 33 and
in Kalyan Chandra
Sarkar v. Rajesh Ranjan (2004) 7
SCC 528."
12. It was further held that the suspension is to be
granted by recording the reasons, and it is impermissible to
release the accused simply because the appeal was not likely
to be heard soon. It was observed:
"9. We have already referred to the mandate under
Section 389 Cr. P.C. that the order passed invoking
the said provision should reflect the reason for
coming to the conclusion that the convicts are
entitled to get suspended their sentence and
consequential release on bail. In the decision
in State of Haryana v. Hasmat (2019) 5 SCC 373: 2019
INSC 377, this Court held that in an appeal against
conviction involving a serious offence like murder
punishable under Section 302, IPC the prayer for
suspension of sentence and grant of bail should be
considered with reference to the relevant factors
mentioned thereunder, though not exhaustively.
On its perusal, we are of the opinion that factors
like the nature of the offence held to have been
committed, the manner of their commission, the
gravity of the offence, and also the desirability of
releasing the convict on bail are to be considered
objectively and such consideration should reflect
in the consequential order passed under
Section 389, Cr. P.C. It is also relevant to state that
the mere factum of sufferance of incarceration for
a particular period, in a case where life
imprisonment is imposed, cannot be a reason for
invocation of power under Section 389 Cr.
P.C. without referring to the relevant factors. We
say so because there cannot be any doubt with
respect to the position that disposal of appeals
against conviction (especially in cases where life
imprisonment is imposed for serious offences),
within a short span of time, may not be possible in
view of the number of pending cases. In such
circumstances, if it is said that disregarding the other
relevant factors and parameters for the exercise of
power under Section 389, Cr. P.C., the likelihood of
delay and incarceration for a particular period can be
taken as a ground for suspension of sentence and to
enlarge a convict on bail, then, in almost every such
case, favourable invocation of said power would
become inevitable. That certainly cannot be the
legislative intention, as can be seen from the
phraseology in Section 389 Cr. P.C. Such an
interpretation would also go against public interest
and social security. In such cases, giving preference
over appeals where the sentence is suspended, in the
matter of hearing or adopting such other methods,
making an early hearing possible could be resorted to.
We shall not be understood to have held that,
irrespective of inordinate delay in consideration of
the appeal and long incarceration undergone, the
power under the said provision cannot be invoked.
In short, we are of the view that each case has to be
examined on its own merits and based on the
parameters, to find out whether the sentence
imposed on the appellant(s) concerned should be
suspended during the pendency of the appeal and
the appellant(s) should be released on bail."
13. Therefore, the applicant can be released on
bail if it is shown that his appeal is likely to succeed on
merits.
14. It was laid down by the Hon'ble Supreme Court
of India in Rajasthan Pradesh Vaidya Samiti v. Union of
India, (2010) 12 SCC 609: 2010 SCC OnLine SC 649, that
Hindi Sahitya Sammelan Allahabad is not a university. It is
a Society registered under the Societies Registration Act,
1860, and mere inclusion of the name of a person in the
State Register is not enough to make him eligible to
practice. It was observed: -
51. At the cost of repetition, it may be pertinent to
mention here that in view of the above, we have
reached the following inescapable conclusions:
(I) Hindi Sahitya Sammelan is neither a
university/deemed university nor an educational
board.
(II) It is a society registered under the Societies
Registration Act, 1860.
(IV) No school/college imparting education in
any subject is affiliated with it. Nor Hindi
Sahitya Sammelan is affiliated with any
university/board.
(V) Hindi Sahitya Sammelan has had no
recognition from the statutory authority after
1967. No attempt had ever been made by the
Society to get recognition as required under
Section 14 of the 1970 Act, and further did
not seek modification of Entry 105 in Schedule II
to the 1970 Act.
(VI) Hindi Sahitya Sammelan only conducts
examinations without verifying whether the
candidate has some elementary/basic education
or has attended classes in Ayurveda in any
recognised college.
(VII) After the commencement of the 1970 Act, a
person not possessing the qualifications
prescribed in Schedules II, III and IV to the 1970
Act is not entitled to practise.
(VIII) Mere inclusion of the name of a person in
the State Register maintained under the State Act
is not enough for making him eligible to practise.
(IX) The right to practise under Article 19(1)(g) of
the Constitution is not absolute and thus subject
to reasonable restrictions as provided under
Article 19(6) of the Constitution.
(X) Restriction on practice without possessing
the requisite qualifications prescribed in
Schedules II, III and IV to the 1970 Act is not
violative of Article 14 or ultra vires to any of the
provisions of the State Act.
15. Therefore, prima facie, it is difficult to rely
upon the Certificate issued by Hindi Sahitya Sammelan,
Allahabad, to hold that the applicant has a right to practice
in the allopathic system of medicines.
16. It was submitted that the Drugs Inspector had
not verified the license of the applicant from the
competent authority, and the inquiry was made from the
Indian Medical Council, which is not sufficient. This
submission cannot be accepted. Once the Hon'ble Supreme
Court held that Hindi Sahitya Sammelan Allahabad is not a
University/Deemed University but only a Society which
does not impart education to any person, a mere failure to
verify the degree/diploma of the applicant will not assist
the applicant.
16. Reliance was placed upon the answer given by
the Ministry of Health and Family Welfare. However, no
notification issued by the State Government permitting an
Ayurvedic Practitioner to possess Allopathic Medicines
was brought on record. Therefore, no advantage can be
derived from the written answer given by the Ministry in
the present case.
17. The judgment of the learned Trial Court shows
that the accused admitted that he was running a clinic, and
the samples were drawn from Allopathic Medicines. He
admitted that the samples were prepared as per the Rules.
His defence that he was a Medical Practitioner was
negated. Prima facie, the applicant has failed to establish
any material to show that he is a registered medical
practitioner.
18. It was submitted that no person was harmed
by any medicine prescribed by the applicant. Therefore,
the applicant was wrongly convicted. This submission is
only stated to be rejected. The provision of law does not
require harm to any person, but a license for stocking the
drugs. Therefore, the fact that no person was harmed is
immaterial in the present case.
19. It was submitted that the appeal is not likely to
be listed soon, and the applicant is entitled to suspension
of sentence on this consideration as well. This submission
is not correct. The Roster of Criminal Appeals for the year
2024, pertaining to an under-trial prisoner, is available
with this Court and considering the number of under-trial
prisoners, the case of the applicant is likely to be taken up
soon for hearing. However, he is at liberty to approach this
Court in case there is an unreasonable delay in the hearing
of the appeal.
20. No other point was urged.
21. Consequently, the present application fails,
and the same is dismissed. The observation made
hereinabove shall remain confined to the disposal of the
application and will have no bearing, whatsoever, on the
merits of the case.
Call for the records.
List the matter for hearing expeditiously.
(Rakesh Kainthla)
Judge
28th May 2025
(Shamsh Tabrez)
