[ 2026:HHC:10515 ]

IN THE HIGH COURT OF HIMACHAL PRADESH

AT SHIMLA

Cr.MP No: 5601 of 2025 in

Criminal Appeal No. 476 of 2024

Reserved on: 23.03.2026

Decided on: 07.04.2026

____________________________________________________________

Kuldeep Singh @ Rana

...Applicant-appellant.

Versus

State of Himachal Pradesh

…Respondent.

Coram:

Hon’ble Mr. Justice Vivek Singh Thakur, Judge

Hon’ble Mr. Justice Ranjan Sharma, Judge

1 Whether approved for reporting? Yes.

For the petitioner: Mr. Sahil Malhotra, Advocate.

For the respondent: Mr. J. S. Guleria, Deputy Advocate

General.

Ranjan Sharma, Judge

Applicant, Kuldeep Singh @ Rana, being

appellant, who is undergoing sentence, has come up

before this Court by way of instant application under

Section 430(1) of the Bhartiya Nagarik Suraksha

Sahita 2023, seeking suspension of sentence, in

1

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

[ 2026:HHC:10515 ] - 2 -

terms of the judgement of conviction and sentence

dated 28.06.2024 and 10.07.2024 respectively, passed

by Learned Special Judge, Mandi, sentencing the

applicant to undergo rigorous imprisonment for a

period of 10 years and to pay fine of Rs. 1,00,000/-

[Rs One Lakh Only] and in default of payment of

fine to undergo simple imprisonment for a period

of one year for the commission of offences punishable

under Section 20(b)(ii)(c) and 29 of the Narcotic Drugs

and Psychotropic Substances Act, 1985.

GROUNDS FOR SUSPENSION OF SENTENCE IN

INSTANT APPLICATION:

2. Instant application, praying for suspension

of sentence, has been filed with the plea that

the applicant-convict has undergone two years and

seven months of substantive sentence. It is averred

that prolonged detention is weakening the economic

condition of the applicant. It is averred that the

prolonged incarceration has made the family to

starve and for enabling him to earn a livelihood

[ 2026:HHC:10515 ] - 3 -

for himself and family the prayer for suspension

of sentence has been made. It is averred that there

are inconsistencies and procedural irregularities in

the trial and the judgement passed by the Learned

Special Judge. It is averred that PW-9 Joginder

Singh ASI, had acted as a complainant and also

an Investigating Officer. It is averred that the non-

compliance of Section 42 and Section 50 of the

NDPS Act has vitiated the trial and the alleged

recovery is violative of the mandate of law in case

of State of Punjab versus Baldev Singh (1999) 6

SCC 172. It is averred that there is a discrepancy

between the contraband seized 1.350 Kg. vis-à-vis

1.310 Kgs. Plea for suspension of sentence on the

principle of parity as the sentence imposed on the

co-accused was suspended. It is further averred that

the conscious possession has not been proved.

2(i). It is averred that the applicant had earlier

also filed an application for suspension of sentence

Cr.MP No. 3837 of 2024, which was dismissed

[ 2026:HHC:10515 ] - 4 -

as withdrawn on 02.05.2025. Feeling aggrieved, the

applicant filed SLP before the Honble Supreme

Court, and the aforesaid SLP (Crl) No. 9495 of 2025,

was withdrawn on 07.07.2025. It is averred that since

the appeal is likely to take considerable time for

its disposal, therefore, the sentence imposed on the

applicant-appellant may be suspended during the

pendency of the instant application.

REPLY BY STATE AUTHORITIES :

3. Upon listing of instant application and

issuance of notice by this Court on 18.12.2025,

the State Authorities have filed the reply dated

02.03.2026, on affidavit of Superintendent of Police,

Mandi (HP), opposing the prayer for suspension of

sentence.

4. Heard, Mr. Sahil Malhotra, Learned Counsel

for the petitioner and Mr. J.S. Guleria, Deputy Advocate

General for the Respondent-State.

ANALYSIS:

5. Taking into account the averments made

[ 2026:HHC:10515 ] - 5 -

in the application for suspension and the reply

filed thereto and the evidence led during the trial,

this Court is of the considered view that the

prayer of the applicant for suspension of sentence,

is not made out, at this stage, for the following

reasons:

5(i). Prosecution story is that recovery relates

to Commercial Quantity of 1.350 kgs of Cannabis

-Charas, which was recovered from the bag kept

on his lap by the applicant-appellant Kuldeep

Singh who was accompanying the driver, namely,

Jaswant Singh @ Nitu. The contraband so seized-

recovered stands duly proved by prosecution beyond

all reasonable doubts. The applicant has failed to

point out glaring discrepancy and illegality which

goes to the root of the matter.

5(ii). Mere prolongation of incarceration does

not by itself constitute a ground for suspension of

sentence, imposed by Learned Trial Court after due

appreciation of evidence and full trial. Suspension

[ 2026:HHC:10515 ] - 6 -

of sentence cannot be asserted nor granted on

sympathetic grounds.

5(iii). Plea of the applicant that PW-9 ASI

Joginder Singh, being the complainant was also

the Investigating Officer, cannot come to the aid

of the applicant for the reason, firstly, there is

no bar under the NDPS Act that an informant-

complainant cannot act as Investigating Officer ; and

secondly, merely because the complainant-informant

had investigated the case cannot be the ground to

doubt or discard the entire prosecution case unless

accused has established bias; and thirdly, except

in the case of established bias, after weighing the

evidence on record, there is no bar that informant

cannot act as Investigator, in terms of the mandate

of law declared by the Constitutional Bench of the

Honble Supreme Court in Mukesh Singh versus

State (NCT of Delhi) (2020) 10 SCC 120 {Paras

10.5, ; 12.1 and 13.1(II)}; and lastly, even on the

basis of evidence on record, the applicant has not

[ 2026:HHC:10515 ] - 7 -

been able to establish any bias and therefore, the

submission of the applicant has no force.

5(iv). Plea of the applicant regarding the non-

compliance of Section 42 and 50, is devoid of

any merit for the reason, firstly, the prosecution

story is that on 03.02.2018, police party consisting

of 5 persons, headed by PW- 9 Joginder Singh, were

on routine patrolling and nakabandi duty near gate

of Police Station, Thalout. At about 8.40 am, a car

bearing registration number PB-01A-4464, came from

Kullu side, in which two persons were found sitting

and the person on driver seat disclosed his name

as Jaswant Singh @ Nitu and the person sitting on

front seat disclosed his name as Kuldeep Singh @

Rana, who was carrying an orange color carry

bag (MO-2) on his lap. After associating independent

witnesses, the search of bag was conducted and on

checking, the bag was found containing black colored

stick substance, wrapped with transparent polyethene

wrappers. After competing codal formalities, recovered

[ 2026:HHC:10515 ] - 8 -

contraband was sealed and the Rukka was sent

to SHO, Police Station at Aut for registration of

FIR. Pursuant to the registration of FIR, the case

file alongwith documents were sent to PW 9 Joginder

Singh for conducting further investigation in the

matter; and secondly, perusal of prosecution story

and the evidence on record establishes that the

provision of Section 50 of the NDPS Act is attracted

in case of personal search of an accused before

a Gazetted Officer or a Magistrate ; and thirdly, the

prosecution has not conducted any personal search

of the applicant-accused and in the absence of

any personal search of the applicant-accused, the

provision of Section 50 is not applicable, in view

of the mandate of the Constitutional Bench of the

Honble Supreme Court in case of State of Punjab

versus Baldev Singh (1999) 6 SCC 172 and incase

a search or an arrest of a person is made during

the normal course of investigation leading to the

recovery of contraband then Section 50 of the Act

[ 2026:HHC:10515 ] - 9 -

is not attracted as in instant case.

5(v). Plea of the applicant about discrepancy of

weight of contraband, that at the time of recovery,

the weight of contraband (Charas) was 1.350 Kgs

whereas as per FSL Report Ex P-12, the weight came

out to be 1.310 Kgs. The aforesaid plea cannot come

to the aid of the applicant-accused, for the reason,

that weight of contraband came out to be 1.310

Kgs, after deducting the weight of carry bag, thread,

parcel, polythene wrappers and the certification of

seized contraband under Section 52-A (2) by the

Magistrate stands proved vide Ex P- 32 coupled with

the fact that the loss in weight is nominal and

even no suggestion was put by applicant-accused

during trial, therefore, the plea at this stage is not

tenable.

5(vi). Plea for suspension of sentence on parity

on the ground that that co-accused Jaswant Singh,

driver of the vehicle was granted the benefit of

suspension of sentence in Cr. MP No. 3974 of 2024

[ 2026:HHC:10515 ] - 10 -

in Criminal Appeal No. 494 of 2025, Jaswant Singh

@ Nitu vs State of Himachal Pradesh on 25.04.2025

cannot be a ground for parity, for the reason, the

claim for suspension of sentence is to be tested

keeping in view the role of the applicant-appellant

Kuldeep Singh who was the prime accused from

whom the alleged bag kept in his lap was recovered

vis-à-vis co-accused, Jaswant Singh, who was the

driver of the vehicle in question. Once the role of

both the accused was different therefore, the plea

for automatic parity is not tenable.

5(vii). The plea for suspension of sentence of

the applicant cannot sustain, when, the applicant-

appellant, at this stage, has not been able to

establish on the basis of the adduced evidence that

there are fair chances of his acquittal in the instant

appeal.

5(viii). Even, Para 66 of the judgement passed

by the Learned Trial Court negates the prayer for

suspension, in view of categorical findings, recorded

[ 2026:HHC:10515 ] - 11 -

after due trial, that the stand of the prosecution

was consistent throughout and no major contradiction

exists in their testimonies. It was further held that

minor contradictions, if any, were not sufficient

to make the prosecution case suspectable as has

been alleged by the applicant. The evidence on record

consistently indicate that the recovery of contraband

from the bag kept in the lap by applicant-appellant

Kuldeep Singh was sufficient to hold him guilty of

the offence. In these circumstances, the recovery of

contraband from the alleged bag from the conscious

and exclusive possession of the applicant-appellant

was validly accepted, making him liable for the

offence. Learned Trial Court had recorded in Para

74 of the Judgement that provision of Section 42

and 50 were not at all attracted. Findings recorded

in Para 83 of the Impugned Judgement denying

any enmity between the accused and the police

officials. The applicant-appellant at this stage has

not been able to establish on the basis of adduced

[ 2026:HHC:10515 ] - 12 -

evidence that there are fair chances of his acquittal

in the instant appeal. Moreover, applicant-appellant

has not pointed out any palpable or gross error

in the impugned judgement passed by the Trial

Court. The conviction and sentence imposed on the

applicant after due trial and said findings cannot

be brushed aside at this stage. The scope of Section

389 Cr.P.C [now Section 430 Bhartiya Nagarik

Suraksha Sahita, 2023] has been outlined by the

Hon’ble Supreme Court in Aasif @ Pasha versus

State of Uttar Pradesh and others, 2025 SCC

OnLine SC 1644, in the following terms:

18. In “Omprakash Sahni vs. Jai Shankar

Chaudhary and Anr. (2023) 6 SCC 123 ,

this Court while considering the scope of

389 CrPC in cases of life imprisonment

held as under:-

30. In Kishori Lal v. Rupa (2004) 7 SCC

638 this Court has indicated the

factors that require to be considered by

the courts while granting benefit

under Section 389CrPC in cases involving

serious offences like murder, etc. Thus,

[ 2026:HHC:10515 ] - 13 -

it is useful to refer to the observations

made therein, which are as follows:

(SCC pp. 639-40, paras 4-6)

“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 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.

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

[ 2026:HHC:10515 ] - 14 -

High Court for directing suspension

of sentence and grant of bail is the

absence of allegation of misuse of

liberty during the earlier period when

the accused respondents were on bail.

6. The mere fact that during the

trial, they were granted bail and there

was no allegation of misuse of liberty,

is really not of much significance. The

effect of bail granted during trial loses

significance when on completion of trial,

the accused persons have been found

guilty. The mere fact that during

the period when the accused persons

were on bail during trial there was

no misuse of 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 is whether reasons existed to

suspend the execution of sentence and

thereafter grant bail. The High Court

does not seem to have kept the correct

principle in view.”

31. In Vijay Kumar v. Narendra (2002) 9

SCC 364 and Ramji Prasad v. Rattan

Kumar Jaiswal (2002) 9 SCC 366, it

was held by this Court that in cases

involving conviction under Section 302

IPC, it is only in exceptional cases

[ 2026:HHC:10515 ] - 15 -

that the benefit of suspension of

sentence can be granted. In Vijay

Kumar v. Narendra, it was held that

in considering the prayer for bail in

a case involving a serious offence like

murder punishable under Section 302

IPC, the court should consider the

relevant factors like the nature of

accusation made against the accused,

the manner in which the crime is

alleged to have been committed, the

gravity of the offence, and the

desirability of releasing the accused

on bail after they have been convicted

for committing the serious offence

of murder.

32. The aforesaid view is reiterated by

this Court in Vasant Tukaram Pawar v.

State of Maharashtra , (2005) 5 SCC

281 and Gomti v. Thakurdas (2007)

11 SCC 160.

33. Bearing in mind the aforesaid principles

of law, the endeavor 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 abovesaid question is to

[ 2026:HHC:10515 ] - 16 -

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

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

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 .”

6. Besides, the above discussion, this Court,

at this stage is satisfied that on the basis of the

adduced evidence, the prosecution has proved its

[ 2026:HHC:10515 ] - 17 -

case against applicant-accused beyond all reasonable

doubts. In the instant application, the applicant-

appellant has not been able to point out any palpable

or grave error in the impugned judgement. Nothing

has been pointed out that the applicant has a

fair chance of acquittal. Even, Learned state Counsel

states that the case of the applicant does not fall

under Section 479 BNSS (earlier Section 436-A Cr PC).

Plea of the applicant for reappreciating the evidence

bare-thread, at the stage of considering the prayer

for suspension of sentence under Section 389 CrPC

[now Section 430 BNSS, by taking up few lacuna

or loopholes in prosecution case, cannot be acceded

to.

DIRECTIONS:

7. In view of the above discussion and for

the reasons recorded hereinabove, instant application

for suspension of sentence, is devoid of any merit,

and consequently, the same is dismissed.

8. Before parting, this Court observes that

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instant appeal relates to the year 2024 and appeals

against conviction have reached the hearing board

of docket of this Court. In the totality of above

circumstances, the applicant-accused, if so desires,

may move this Court afresh, in case, appeal is not

listed for hearing within 6-8 months hereinafter.

9. The observations made in this order shall

not be construed in any manner as an indictive

of findings, for or against any of the parties to

accompanying appeal.

In the aforesaid terms, instant application

stands disposed of.

(Vivek Singh Thakur)

Judge

(Ranjan Sharma)

Judge

April 07, 2026

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