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Rajasthan High Court - Jodhpur

Daulat Singh vs State Of Rajasthan (2026:Rj-Jd:19938) on 27 April, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:19938]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
                                  No. 547/2026

                                           In

                     S.B. Criminal Appeal No. 2308/2025

Daulat Singh S/o Shri Gauri Shankar, Aged About 32 Years, Ward
No. 18, Sindhi Market, Nohar, Teh. Nohar, Dist. Hanumangarh,
Rajasthan (Lodged At Sub Jail, Rajgarh, Dist. Churu)
                                                                        ----Petitioner
                                       Versus
State Of Rajasthan, Through The Government Counsel.
                                                                      ----Respondent


For Petitioner(s)            :     Mr. S.D. Goswami
For Respondent(s)            :     Mr. N.S. Chandawat, Dy. GA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

27/04/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 08.09.2025 passed by the learned Special Judge

(NDPS Act Cases), Taranagar, District Churu in Criminal

Case No. 03/2023 whereby he was convicted and sentenced

to suffer maximum imprisonment of 10 years along with a

fine of Rs. 1,50,000/- under Sections 8/15 & 25 NDPS Act,

1985.

2. Learned counsel for the appellant submits that the trial court

failed to properly appreciate the legal and factual aspects,

resulting in an erroneous finding of guilt. Being the first

appellate court, this Court may reappraise the evidence. It is

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further submitted that the appeal will take time for disposal,

the sentence deserves to be suspended.

3. Learned Public Prosecutor has opposed the prayer for

suspension of sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. The distinction between grant of bail under Section 439 CrPC

( corresponding to Section 483 BNSS)and suspension of

sentence under Section 389 CrPC ( corresponding to Section

430 BNSS)is well settled. While the former operates at the

pre-conviction stage, the latter comes into play post-

conviction and requires the appellate court to assess, prima

facie, the sustainability of the conviction and sentence under

challenge.

6. Upon conviction, the presumption of innocence stands

displaced; however, while considering suspension of

sentence, the appellate court is required to evaluate whether

the grounds raised in appeal disclose a substantial and

arguable case. If the material on record suggests that the

findings of the trial court may be debatable, the discretion

under Section 389 CrPC ( corresponding to Section 430

BNSS) can be justifiably invoked.Where the appeal raises

issues which, on prima facie consideration, indicate a

reasonable possibility of success, including reversal or

modification of conviction, the sentence may be suspended

pending adjudication.

7. This Court is guided by the enunciation of law by the Hon'ble

Supreme Court in Muna Bisoi v. State of Odisha

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(February 16, 2026) , wherein it has been held that

prolonged pendency of criminal appeals, not attributable to

the convict, constitutes a valid ground for suspension of

sentence. Reliance has also been placed on Kashmira

Singh v. State of Punjab (1977) 4 SCC 291 , wherein the

Supreme Court deprecated continued incarceration of

convicts for long periods during pendency of appeals,

observing that such practice would amount to a travesty of

justice.

8. It is equally settled that while considering such application,

the appellate court is not required to record conclusive

findings on merits, as that would prejudice the final

adjudication. A prima facie satisfaction regarding the

arguability and substance of the grounds would suffice. The

appellate jurisdiction being a continuation of trial, the entire

evidence remains open to re-appreciation. The court may

ultimately affirm, modify, or set aside the conviction, or alter

the sentence, depending upon the outcome of such re-

evaluation.

9. Additionally, even where conviction is sustained, the nature

of offence or quantum of sentence may warrant

reconsideration at the appellate stage, which further justifies

a liberal approach in appropriate cases. This Court cannot

lose sight of the fact that it is burdened with a large number

of pending criminal appeals, and the likelihood of their early

disposal remains uncertain. In such circumstances,

continued incarceration, despite arguable grounds in appeal,

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would not be justified, particularly when delay is not

attributable to the appellant.

10. In the present case, it is an admitted situation that though

the material has been produced to show that samples of the

seized material were forwarded to the chemical examiner at

FSL, the report was not tendered into evidence. In cases like

the present one, the entire prosecution case would hinge

upon the solitary fact that the accused was in possession of

a narcotic or psychotropic substance. Until and unless it is

proved beyond any shadow of doubt that the allegedly

seized article from the accused was a contraband, no

conviction can be made. The learned trial court, in its

impugned judgment at para 39, though conscious of the fact

that the FSL report was not tendered into evidence, ignored

the above legal position by observing that the report is

admissible under Section 293 of the CrPC. Even if the things

are relevant or admissible in evidence, the prosecution

cannot shirk from its responsibility to convert the document

into legally admissible proof. The very term "admissible"

would mean that the document can be tendered into

evidence; however, the contents of the document have to be

proved. The core legal aspect has been ignored by the

learned trial court, which, in my view, cannot be

appreciated, as when the prosecution has utterly failed to

establish that whatever was recovered from the appellant

was a contraband, his conviction and subsequent order of

sentence cannot be maintained. When there is a serious

deficiency in the case of the prosecution, the rigor of either

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Section 32A or Section 37 of the NDPS Act does not come in

the way of granting bail. The appellant has remained

incarcerated for about three and a half years, and early

hearing of the appeal is unlikely. The issues raised are

significant and merit consideration. If accepted, they may

result in acquittal. They require proper examination and re-

appreciation of evidence, with a fair possibility of benefit to

the appellant.

11. Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. ( corresponding to Section 430

BNSS) is allowed and it is ordered that 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.