Rajasthan High Court - Jodhpur
Kamal Kumar vs State Of Rajasthan (2026:Rj-Jd:686) on 7 January, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:686]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 2244/2025
In
S.B. Criminal Appeal No.2685/2025
Kamal Kumar S/o Shri Om Prakash Arora, Aged About 33 Years,
Resident Of Ward No. 03, Kaliya Police Station Sadar, Sri
Ganganagar. (At Present Lodged In Central Jail, Sri Ganganagar.)
----Petitioner
Versus
State Of Rajasthan, Pp
----Respondent
For Petitioner(s) : Mr. Sunil Vishnoi
For Respondent(s) : Mr. Sri Ram Choudhary, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order 07/01/2026
1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 04.10.2025 passed by the learned Special Judge, NDPS Act Cases, Sri Ganganagar in Sessions Case No.60/2019 whereby he was convicted and sentenced to suffer maximum imprisonment of five years along with a fine of Rs.20,000 and in default to further undergo one year's SI under Section 8/22 of the NDPS Act and lesser punishment for the other offence under Section 8/21 of the NDPS Act
2. It is contended by the learned counsel for the appellant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an (Uploaded on 09/01/2026 at 06:34:47 PM) (Downloaded on 09/01/2026 at 09:27:06 PM) [2026:RJ-JD:686] (2 of 8) [SOSA-2244/2025] erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. The appellant was on bail during trial and did not misuse the liberty so granted to him; hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.
3. Per contra, learned public prosecutor has vehemently opposed the prayer made by learned counsel for the accused- applicant for releasing the appellant on application for suspension of sentence.
4. Heard learned counsel for the parties and perused the material available on record.
5. There exists a fine yet significant distinction between the grant of bail under Section 439 of the Code of Criminal Procedure, 1973, and the suspension of sentence under Section 389 CrPC. While the power exercised under Section 439 CrPC is essentially discretionary in nature and operates at the pre-conviction stage, the jurisdiction under Section 389 CrPC, though also discretionary, is qualitatively different and operates post-conviction. Under Section 389 CrPC, the appellate court is vested with a distinct authority; however, the core consideration before the appellate forum must necessarily be whether the judgment of conviction and the consequent order of sentence are sustainable in the eyes of law.
6. It is trite that the presumption of innocence, which enures in favour of an accused, comes to an end upon conviction. Consequently, while considering an application under Section (Uploaded on 09/01/2026 at 06:34:47 PM) (Downloaded on 09/01/2026 at 09:27:06 PM) [2026:RJ-JD:686] (3 of 8) [SOSA-2244/2025] 389 CrPC, the appellate court is required to examine the grounds raised in the appeal, and for such purpose, the oral and documentary evidence must be looked into. Where, upon appreciation of evidence, it appears that the conclusions drawn by the trial court may be erroneous, and where logical, legal and sustainable arguments are advanced assailing the findings, disclosing a strong and arguable case, the appellate court is duty-bound to consider such contentions.
7. Where the sustainability of the conviction itself becomes debatable, and where the grounds raised in appeal, if adjudicated in favour of the appellant, disclose a real and substantial possibility of success, and where, prima facie, it appears that the conviction may be reversed and the appellant may be acquitted, the appellate court ought to suspend the sentence pending disposal of the appeal.
8. Such discretion deserves to be exercised with greater circumspection in cases where the appellate forum has sufficient reason to believe that the appeal is not likely to be taken up for hearing in the near future. In such circumstances, the court is required to assess whether the grounds raised are not merely ornamental but possess real substance and force, for the simple reason that if the appeal ultimately succeeds, the period of incarceration already undergone cannot be undone or restituted. In such a situation, the court should incline towards suspending the sentence.
(Uploaded on 09/01/2026 at 06:34:47 PM) (Downloaded on 09/01/2026 at 09:27:06 PM) [2026:RJ-JD:686] (4 of 8) [SOSA-2244/2025]
9. At the same time, it is well settled that the appellate court is not required to record any definitive or conclusive finding, as doing so would amount to forming a pre-determined opinion on the merits of the appeal at an initial stage, without affording a full hearing on the appeal itself. It is sufficient if the court merely indicates that the grounds raised are prima facie appreciable, logical and legally tenable, that they are founded upon settled principles of law, and that there appears to be improper evaluation or assessment of evidence, or non-consideration / disregard of relevant statutory provisions.
10. It is also to be borne in mind that in several cases, the conviction may ultimately be converted to a lesser offence, or the propriety of the sentence imposed by the trial court, being within its discretionary domain may also require reconsideration, particularly whether an adequate and proportionate sentence was imposed after due hearing on the point of sentence. These aspects, too, are open to re- examination at the appellate stage.
11. An appeal, in its true sense, is an extension of the trial, for the reason that additional evidence may be taken, and the entire body of evidence is subject to re-appreciation on both factual and legal parameters. At this stage, the appellate court is empowered to set aside the conviction, modify it, remand the matter, or maintain the judgment, as the case may be.
12. In this High Court, thousands of criminal appeals have remained pending for the last 20-30 years, including jail (Uploaded on 09/01/2026 at 06:34:47 PM) (Downloaded on 09/01/2026 at 09:27:06 PM) [2026:RJ-JD:686] (5 of 8) [SOSA-2244/2025] appeals, where even the likelihood of early hearing does not appear forthcoming. In such matters, instead of taking an irreversible risk, the court must proceed on the safer side by placing paramount importance on human dignity and personal liberty.
13. In the present case, the appellant stands convicted and sentenced in connection with the alleged recovery of 25 strips of Tablet Trio-SR, purportedly recovered from the right pocket of his trousers. A careful scrutiny of the record reveals prima facie non-compliance with the mandatory safeguards engrafted under the NDPS Act, particularly Sections 50 and 52-A, which govern the manner of search, seizure, sampling, and certification of seized contraband. Such statutory safeguards are not merely procedural formalities but constitute substantive protections intended to ensure fairness, transparency, and credibility in prosecutions under the stringent regime of the NDPS Act.
14. It further emerges that, out of the total 25 strips allegedly recovered, samples were drawn from only two strips, and the forensic examination was confined to 20 tablets alone. The remaining strips were neither sampled nor subjected to chemical analysis. In the absence of representative sampling and comprehensive forensic corroboration, it cannot be presumed, with the degree of certainty mandated in criminal jurisprudence, that all the recovered strips contained the alleged narcotic or psychotropic substance. The sampling methodology adopted by the prosecution thus becomes (Uploaded on 09/01/2026 at 06:34:47 PM) (Downloaded on 09/01/2026 at 09:27:06 PM) [2026:RJ-JD:686] (6 of 8) [SOSA-2244/2025] vulnerable to serious doubt and undermines the evidentiary foundation of the conviction.
15. In this backdrop, a substantial and debatable question arises as to why the case should not be treated as falling below the commercial quantity, especially when the FSL report pertains to only a limited number of tablets and does not conclusively establish the nature or quantity of the substance allegedly contained in the remaining strips. The failure to scientifically establish the contents of the entire recovered material assumes critical significance, as the determination of quantity directly impacts the applicability of stringent penal provisions and sentencing consequences under the NDPS Act.
16. The issues so raised are vital, substantial, and replete with legal and factual significance. If adjudicated in favour of the appellant, the possibility of acquittal cannot be ruled out. These grounds necessitate definitive adjudication through meticulous scrutiny and re-appreciation of evidence, including an examination of procedural compliance, the integrity of sampling, and the probative value of the forensic report. There exists, therefore, a reasonable likelihood that such an exercise may ultimately ensure to the benefit of the appellant, warranting indulgence at this stage by allowing the instant application.
17. Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that (Uploaded on 09/01/2026 at 06:34:47 PM) (Downloaded on 09/01/2026 at 09:27:06 PM) [2026:RJ-JD:686] (7 of 8) [SOSA-2244/2025] the sentence passed by learned trial court, the details of which are provided in the first para of this order, against the appellant-applicant named above shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.
3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.
18. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant does not appear before the trial court, the learned trial (Uploaded on 09/01/2026 at 06:34:47 PM) (Downloaded on 09/01/2026 at 09:27:06 PM) [2026:RJ-JD:686] (8 of 8) [SOSA-2244/2025] Judge shall report the matter to the High Court for cancellation of bail.
(FARJAND ALI),J 155-Mamta/-
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