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Rajasthan High Court - Jodhpur

Urn: Sosa / 1342U / 2026Umesh vs State Of Rajasthan (2026:Rj-Jd:20742) on 29 April, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:20742]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
                                   No. 649/2026

Umesh S/o Shri Ganeshlal Vyas, Aged About 32 Years, Resident
Of    Garawala,      Police       Station    Dungla,        District    Chittorgarh,
Rajasthan. (Presently Lodged In District Jail Rajsamand)
                                                                       ----Petitioner
                                      Versus
State Of Rajasthan, Pp
                                                                   ----Respondent


For Petitioner(s)             :    Mr. Prakash Banjara
                                   Mr. Bharat Gurjar
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 27.03.2026 passed by the learned Special Judge,

NDPS Act Cases, Rajsamand in Sessions Case No.32/2022

whereby he was convicted and sentenced to suffer 13 years'

RI under Section 8/15 of NDPS Act along with fine and

default sentence.

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

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.

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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

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

prolonged pendency of criminal appeals, not attributable to

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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,

would not be justified, particularly when delay is not

attributable to the appellant.

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10. Upon a meticulous scrutiny of the record, it emerges that the

seizing officer, Udai Singh (examined as PW-4 Bhanwar Lal),

in response to a specific query regarding compliance with

mandatory statutory safeguards, unequivocally admitted

that prior to conducting the search, no notice under Section

50 of the NDPS Act was served upon the accused. This

admission goes to the root of the matter and reflects a clear

infraction of a mandatory procedural requirement. It is well

settled that non-compliance with Section 50 vitiates the

recovery, as authoritatively laid down by the Hon'ble

Supreme Court in Vijaysinh Chandubha Jadeja v. State

of Gujarat (AIR 2011 SC 77).

11. Further, with respect to the integrity of the sampling

process, the record indicates that although samples were

drawn at the time of seizure, the same were dispatched to

the Forensic Science Laboratory after an unexplained delay

of seventeen days. The absence of any cogent explanation

regarding the custody and handling of the samples during

this intervening period casts a serious doubt on the sanctity

of the chain of custody. Such a lapse assumes greater

significance when viewed in light of the allegation of prior

enmity between the seizing officer and the accused, thereby

raising a reasonable apprehension regarding the possibility

of tampering or mala fide conduct.

12. The law governing cases under the NDPS Act mandates strict

adherence to procedural safeguards, particularly in relation

to search, seizure, sampling, and forwarding of samples for

chemical examination. The evidentiary value of the FSL

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report is contingent upon an unbroken and legally compliant

chain of custody. It is also a settled proposition that for the

sampling process to attain legal sanctity, it ought to be

verified by a Magistrate prior to being forwarded for analysis.

In the absence of such compliance, the FSL report loses its

evidentiary worth and cannot form the basis of conviction.

Any breach in this regard renders the entire prosecution case

vulnerable, as the foundational evidence itself becomes

unreliable. Additionally, considering the prolonged

incarceration of the appellant, who has remained in custody

for more than four years, coupled with the fact that the

appeal stands admitted and is not likely to be heard in the

near future, the principles enunciated by the Hon'ble

Supreme Court in Satender Kumar Antil Vs. CBI (2022 ) 10

SCC 51 assume relevance. The relevant paragraphs of the

afore-mentioned judgment are as follows:-

"41.Sub-section (2) has to be read along with Sub-section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable

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and prolonged delay in concluding atrial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436 A of the Code which stands on a different footing.

42. ......

43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436 A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436 A of the Code among other factor sought to be considered for a favourable release on bail."

In view of the guidelines propounded by Hon'ble the

Supreme Court in the case of Satender Kumar Antil

(supra) on the subject of bail on the ground of long period

of incarceration, the sentence of the present applicant

deserves to be suspended as the right to a fair and speedy

trial, being an integral facet of Article 21 of the Constitution,

cannot be defeated by inordinate delay in adjudication.

13. In the totality of circumstances, where (i) there is prima

facie non-compliance of mandatory statutory provisions, (ii)

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serious infirmities exist in the chain of custody of samples,

(iii) the conviction substantially rests upon an FSL report of

doubtful admissibility, and (iv) the appellant has undergone

substantial incarceration, it is evident that the rigours

contained under Sections 32-A and 37 of the NDPS Act would

not operate as an absolute bar. The issues raised are

substantial in nature and warrant a comprehensive re-

appreciation of evidence. There exists a reasonable

possibility that, upon such re-evaluation, the appellant may

derive benefit. Consequently, the case presents itself as a fit

one for suspension of sentence during the pendency of the

appeal.

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

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changed address to the trial Court as well as to the counsel in the High Court.