Neutral Citation No. ( 2025:HHC:13722 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP No. 202 of 2025 in Cr. Appeal No. 15 of 2023 Reserved on: 06.05.2025 Decided on: 13.05.2025 ____________________________________________________ Prem Singh & another …..Applicants/Appellants Versus State of Himachal Pradesh ……Non-applicant/Respondent ____________________________________________________ Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? No. _____________________________________________________ For the applicants: Mr. Ajay Kochhar, Senior Advocate, with Mr. Varun Chauhan and Ms.Swati Sharma, Advocates. For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, with Mr. Ramakant Sharma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Additional Advocates General, Mr. J.S. Guleria and Mr. Raj Negi, Deputy Advocate General. Sushil Kukreja, Judge. This order shall dispose of an application filed by the applicants/appellants under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking suspension of 1 Whether reporters of Local Papers may be allowed to see the judgment? 1 Neutral Citation No. ( 2025:HHC:13722 ) sentence awarded by the learned Special Judge-II, Kinnaur at Rampur Bushahr, H.P., vide judgment of conviction and order of sentence, dated 01.12.2022, in CIS Regd. No. 62 of 2021, for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short “the NDPS Act”). The applicants were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- each and in default of payment of fine to undergo simple imprisonment for a period of two years. 2. Learned Senior counsel for the applicants/appellants contended that the judgment of conviction and order of sentence passed by the learned Trial Court is bad in the eyes of law as there is no evidence that the entire bulk of charas was sent to SFSL for analysis and in fact only 65 grams was sent to the laboratory that too without making the sample homogeneous, as such, even if they have been found in possession of the contraband, they could have been convicted and sentenced to undergo imprisonment only for possession of 65 grams of charas which quantity was sent to SFSL. He further contended that the learned Trial Court has failed to appreciate that the Magistrate, who conducted the proceedings under Section 52-A of the Act was not examined. He also contended that the applicants/appellants have already undergone 2 Neutral Citation No. ( 2025:HHC:13722 ) sentence of almost four years, as against the total sentence of ten years, therefore, the sentence imposed upon the applicants/ appellants may be suspended and they may be released on bail. 3. On the other hand, learned Additional Advocate General contended that the applicants/appellants are not entitled to be released on bail during the pendency of the present appeal, as they have been convicted in a serious offence after a full fledged trial. 4. We have heard the learned Senior counsel for the applicants/appellants as well as learned Additional Advocate General for the non-applicant/State and have also gone through the material available on record. 5. It is a settled law that in the cases under NDPS Act, the link evidence has to be established by the prosecution beyond reasonable doubt and in the absence of link evidence, no conviction can be made. Now adverting to the facts of the case on hand. Perusal of the record, prima facie, reveals that the link evidence in the present case is missing. Admittedly, the case of the prosecution is that the case property was in the shape of balls, which was sealed with six seals of ‘R-SUI’ by PW-8 HC Jagdish Kumar at the time of seizure and the entire case property was deposited in the Malkhana. PW-9 SI Pushp Raj had taken the case 3 Neutral Citation No. ( 2025:HHC:13722 ) property on 30.06.2021 for conducting proceedings under Section 52-A of the Act before JMFC, Anni. During the proceedings under Section 52-A of the Act, learned JMFC Anni had taken out four samples from the contraband, weighing 35 grams, 40 grams, 26 grams and 30 grams, which were sealed with five seals of seal impression "five rupee coin" by the Magistrate. Out of the four samples, two samples, weighing 35 grams and 30 grams bearing seal of ‘five rupee coin’ were sent to the SFSL, however, the remaining two samples were kept by the police and rest of the contraband was destroyed on 07.07.2021 by the orders of Drug Disposal Committee, vide certificate Ext.PW-1/B. The SFSL received the samples having seal of ‘five rupee coin’ and after examination issued report Ex.PX. However, when the case property was produced in the Court, neither seal of ‘five rupee coin’ was found on the sample parcels sent for chemical examination, nor on the samples kept by the police after the proceedings under Section 52-A of the Act. There is also no observation of the Court that the sample parcel was having the seal of ‘five rupee coin’, rather to the contrary, there is observation that it bears five seals of the Court, that too, only on one parcel Ext.MO-1 and in the other parcels Ext.MO-3, Ext.MO-5 and Ext.MO-7, there is no observation of the Court regarding seal of "five rupee coin" with which it was 4 Neutral Citation No. ( 2025:HHC:13722 ) allegedly sealed. 6. The case property was again opened in the Court during the statement of PW-8 HC Jagdish and again there was no observation of the court that the case property was having seal of ‘five rupee coin’. Therefore, it appears that the seal of ‘five rupee coin’ was missing, which was affixed by learned JMIC, Anni and was found present on two samples sent to SFSL and on two samples kept by the police after the proceedings under Section 52- A of the Act. Thus the link evidence adduced by the prosecution appears to be unsatisfactory. The aforesaid discrepancy, pointed out in the link evidence by the learned Senior Counsel for the appellant, in our opinion, prima facie, affects the core of the prosecution case. 7. In Bhagwan Rama Shinde Gosai & others Vs. State of Gujrat, (1999) 4 SCC 421, the Hon’ble Supreme Court was dealing with a case where the appellants before it were sentenced to rigorous imprisonment for ten years. Their application for suspension of sentence was disallowed by the High Court and their motion for having their appeal expedited was also declined. In this factual background, the Hon’ble Supreme Court has held that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, 5 Neutral Citation No. ( 2025:HHC:13722 ) suspension of sentence can be considered by the appellant court liberally unless there are exceptional circumstances. The relevant portion of the judgment 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.” 8. In Kiran Kumar Vs. State of M.P., (2001) 9 SCC 211, the Hon’ble Supreme Court, while following its earlier decision in the case of Bhagwan Rama Shinde Gosai, held as under:- “3. This Court has held in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421 that when a person is convicted and sentenced to a short-term imprisonment the normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception and be put forward for such rejection. In such case also every endeavour should be made to have the appeal posted for early hearing and disposal. If the short-term sentence is allowed to run out during the pendency of the appeal, the appeal itself will become, for all practical purposes, infructuous so far as the appellant is concerned. It does not mean that the appellate court should suspend the sentence, if its consequence would be a danger to the society or any other similar difficulties. 4. No exceptional reason had been shown in the impugned order for not suspending the sentence in this case. We, therefore, deem it appropriate to interfere with the said order. We suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the trial Court.” 6 Neutral Citation No. ( 2025:HHC:13722 ) 9. Thereafter, in the case of Suresh Kumar and others Vs. State (NCT of Delhi), (2001) 10 SCC 338, following the principle enunciated in the judgment of Bhagwan Rama Shinde Gosai, the Hon’ble Supreme Court held as below:- "5. This Court has stated in Bhagwan Rama Shinde Gosai v. State of Gujarat [(1999)4 SCC 421]: (SCC p.422, para 3) 3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances." 6. No exceptional circumstance has been highlighted by the learned Single Judge for deviating from the aforesaid course suggested by this Court. We, therefore, allow this appeal and order the suspension of the sentence of imprisonment passed on the appellants during the pendency of the appeal before the High Court. They shall be released on bail on each of them executing a bond with two solvent sureties to the satisfaction of the trial court." 10. We have applied the test of the principles enunciated by the Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind, vis-a-vis the liberty of the appellants/applicants. In the background of the evidence available on record, the present case cannot be said to be one of the exceptional cases in which prayer for suspension of sentence should be refused. The sentence 7 Neutral Citation No. ( 2025:HHC:13722 ) imposed upon the applicants is for a limited duration, namely, imprisonment of ten years. The appellants have already undergone incarceration approximately for a period of three years and nine months and they cannot be made to suffer further incarceration on such evidence as the appeal which pertains to the year, 2023 is not likely to be taken up for hearing in near future. 11. Hence, keeping in view the aforesaid background of the present case, we are of the opinion that it is a fit case for bail and suspension of sentence of imprisonment. Therefore, while refraining to make any comment on merits of the case,  the substantive sentence imposed upon the applicants/appellants by learned Special Judge-II, Kinnaur at Rampur Bushahr, District Shimla, HP, in in CIS Regd. No.62 of 2021, vide judgment of conviction and order of sentence dated 01.12.2022, shall remain suspended till final disposal of the appeal, however, subject to the applicants’ furnishing personal bond in the sum of Rs.2,00,000/- each with one surety each in the like amount to the satisfaction of learned Trial Court and also subject to deposit of fine amount of Rs.1,00,000/- each. On furnishing the requisite bail bonds, they be released forthwith, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the appeal, the applicants/appellants will surrender before the 8 Neutral Citation No. ( 2025:HHC:13722 ) Court. 12. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of. ( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge May 13, 2025 (VH) 9 Digitally signed by VIRENDER BAHADUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898 117bfa738990a0ea7ba, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= fed3018c26866cd3d598cb3749b3fb29d4abef4b849836 89d027cb645c9bb134, CN=VIRENDER BAHADUR Reason: I am approving this document Location: Date: 2025.05.13 17:33:07+05'30' Foxit PDF Reader Version: 2023.2.0 VIRENDER BAHADUR