[Cites 10, Cited by 0]
Rajasthan High Court - Jodhpur
Bhupendra Alias Bhopal vs State Of Rajasthan on 29 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension of Sentence Application
No.786/2026
IN
S.B. Criminal Appeal (Sb) No. 825/2026
Bhupendra Alias Bhopal S/o Mukanaram Vishnoi, Aged About 42
Years, Resident Of Bavarla, Police Station Dangiyawas, District
Jodhpur, Rajasthan. (Presently Lodged In District Jail
Chittorgarh)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Ashok Khilery
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
29/04/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment
dated 27.04.2026 passed by the learned Special Judge,
NDPS Act Cases, (Additional Sessions Judge) Kapasan,
District Chittorgarh in Sessions Case No.04/2025 whereby he
was convicted and sentenced to suffer maximum
imprisonment of 5 years' RI along with a fine of Rs.50,000/-
under Section 8/15 of the NDPS Act and lesser punishment
for the other offences under Sections 420, 468 of IPC.
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
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appellate court, this Court may reappraise the evidence. It is
further submitted that the appellant remained on bail during
trial without misuse of liberty, and as 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.
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7. This Court is guided by the enunciation of law by the Hon'ble
Supreme Court in Muna Bisoi v. State of Odisha
(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,
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continued incarceration, despite arguable grounds in appeal,
would not be justified, particularly when delay is not
attributable to the appellant.
10. In the present case, the recovered contraband is below the
commercial quantity. Therefore, the embargo contained
under Sections 32-A and 37 of the NDPS Act is not attracted.
The maximum punishment prescribed for the alleged offence
is five years, out of which the petitioner has already
undergone approximately two and a half years of
incarceration. 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.
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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.
12. 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
Judge shall report the matter to the High Court for
cancellation of bail.
(FARJAND ALI),J
199-Samvedana/-
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