[Cites 8, Cited by 0]
Rajasthan High Court - Jodhpur
Urn: Sosa / 1184U / 2026Shishpal Alias ... vs State Of Rajasthan (2026:Rj-Jd:20576) on 29 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:20576]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
No. 570/2026
Shishpal Alias Sanjay S/o Jagdish Chandra, Aged About 34
Years, R/o Ward No 35, Malladkheda, Tehsil Tibbi, District
Hanumangarh. (At Present Lodged In District Jail Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Achala Ram
Mr. Kanakraj
For Respondent(s) : Mr. NS Chandawat, PP
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 23.04.2026 passed by the learned Additional Sessions
Judge (NDPS Act Cases), Sangariya, District Hanumangarh
in Sessions Case No.05/2020 whereby he was convicted and
sentenced to suffer two years' RI under Section 8/18 of
NDPS Act along with fine and default sentence.
2. Learned counsel for the appellants submit 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
further submitted that the mandatory provisions of NDPS Act
have not been complied with. It is further submitted that the
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appellants 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 submission with regard to non-
compliance of mandatory provisions of NDPS Act requires
further scrutiny by this Court while re-appreciating the
evidence. The embargo contained under Sections 32-A and
37 of NDPS Act is not attracted in this case. The period of
sentence awarded to the appellant is four years which is
shorter side. 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 appellants.
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 they shall be released on bail provided
each of them 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 change 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 do
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
102-divya/-
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