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Rajasthan High Court - Jodhpur

Yogesh Kumar vs State Of Rajasthan (2026:Rj-Jd:20540) on 30 April, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:20540]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc. Suspension Of Sentence Application (Appeal)
                                 No. 641/2026

                                          in

                     S.B. Criminal Appeal No.675/2026

Yogesh Kumar S/o Shri Satyanarayan, Aged About 30 Years,
Resident Of Jhansal, P.s. Bhirani, District Hanumangarh (Raj).
(Presently Lodged In District Jail Hanumangarh)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)            :    Mr. Satyanarayan, present in person
For Respondent(s)            :    Mr. Deepak Choudhary, GA-cum-AAG
                                  Mr. SR Choudhary, PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

30/04/2026

1. The instant application for suspension of sentence has

been moved on behalf of the applicant in the matter of

judgment dated 21.01.2026 passed by the learned Special

Court, NDPS Court, District Hanumangarh in Sessions

Case No.49/2021 whereby he was convicted and sentenced

to suffer maximum imprisonment of 20 years under

Sections 8/21 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

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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 appellant has already languished in

jail for long four yeas during the trial and he has again been

taken into custody after pronouncement of impugned

judgment. A very significant point is involved in this case

and which is very much evident from the seizure memo and

the statement of PW-1 Ramesh, the seizing officer; that the

sample was taken from only one packet which was sent to

the chemical examiner and where upon presence of

medicinal drug was found. Whether all the packets were

having content of medicinal drug is a question unresolved. It

was imperative for the prosecution to take samples from

each packet so as to establish the fact that all the packets

were containing medicinal drug. This is a very crucial aspect

and may turn the fate of the case. He has already

languished in jail for 4 years for a single packet. The another

aspect for consideration is non-compliance of the mandatory

provision of Section 42, 50 & 55 of NDPS Act which also

requires further appreciation of this Court. Not taking

samples in accordance with the guidelines issued by

Government of India vide Standing Order 1/1989 further

puts a serious dent in the story of the prosecution. In such

circumstances, the embargo contained under Sections 32A &

37 of the NDPS Act would not come in the way since prima

facie it can be observed that the prosecution failed to

establish possession of the appellant over commercial

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quantity. The presence of drug in a single packet would

make him amenable to prosecution for a case which is below

the bracket of commercial quantity. 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.