[Cites 5, Cited by 0]

Rajasthan High Court - Jodhpur

Buta Singh vs State Of Rajasthan (2026:Rj-Jd:8908) on 17 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:8908]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 1547/2025

1.       Buta Singh S/o Sh. Barkat Singh, Aged About 55 Years,
         R/o Sandeep Nagar Street No. 01, Danewala Ps City
         Police Malot Dist. Mukasar Punjab. (Now Presently Lodged
         In Central Jail Hanumangarh. )
2.       Bhupender Singh @ Bhinder S/o Sh Sukhdev Singh, Aged
         About 34 Years, R/o Ward No.8, Deengarh Ps Sangaria,
         Dist. Hanumangarh.(Now Presently Lodged In Central Jail
         Hanumangarh. )
                                                                     ----Petitioners
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. V.K. Bhadu
For Respondent(s)            :     Mr. Sri Ram Choudhary, AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

17/02/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicants in the matter of judgment

dated 11.08.2025 passed by the learned Addl. District &

Sessions Judge (NDPS Cases) Sangariya, District Sri

Ganganagar in Sessions Case No.26/2019 whereby they

were convicted and sentenced to suffer maximum

imprisonment of ten years RI along with a fine of

Rs.1,00,000/- paid by each of them and in default to further

undergo six months RI under Sections 8/15, 29 of the NDPS

Act.

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2. It is contended by the learned counsel for the appellants that

the learned trial Judge has not appreciated the correct, legal

and factual aspects of the matter and thus, reached at an

erroneous conclusion of guilt, therefore, the same is required

to be appreciated again by this court being the first appellate

Court. The appellants were on bail during trial and did

not misuse the liberty so granted to them; hearing of

the appeal is likely to take long time, therefore, the

application for suspension of sentence may be

granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made by learned counsel for the

accused-applicants for releasing the appellant on application

for suspension of sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. There exists a fine yet significant distinction between the

grant of bail under Section 439 of the Code of Criminal

Procedure, 1973, and the suspension of sentence under

Section 389 CrPC. While the power exercised under Section

439 CrPC is essentially discretionary in nature and operates

at the pre-conviction stage, the jurisdiction under Section

389 CrPC, though also discretionary, is qualitatively different

and operates post-conviction. Under Section 389 CrPC, the

appellate court is vested with a distinct authority; however,

the core consideration before the appellate forum must

necessarily be whether the judgment of conviction and the

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consequent order of sentence are sustainable in the eyes of

law.

6. It is trite that the presumption of innocence, which enures in

favour of an accused, comes to an end upon conviction.

Consequently, while considering an application under Section

389 CrPC, the appellate court is required to examine the

grounds raised in the appeal, and for such purpose, the oral

and documentary evidence must be looked into. Where,

upon appreciation of evidence, it appears that the

conclusions drawn by the trial court may be erroneous, and

where logical, legal and sustainable arguments are advanced

assailing the findings, disclosing a strong and arguable case,

the appellate court is duty-bound to consider such

contentions.

7. Where the sustainability of the conviction itself becomes

debatable, and where the grounds raised in appeal, if

adjudicated in favour of the appellant, disclose a real and

substantial possibility of success, and where, prima facie, it

appears that the conviction may be reversed and the

appellant may be acquitted, the appellate court ought to

suspend the sentence pending disposal of the appeal.

8. Such discretion deserves to be exercised with greater

circumspection in cases where the appellate forum has

sufficient reason to believe that the appeal is not likely to be

taken up for hearing in the near future. In such

circumstances, the court is required to assess whether the

grounds raised are not merely ornamental but possess real

substance and force, for the simple reason that if the appeal

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ultimately succeeds, the period of incarceration already

undergone cannot be undone or restituted. In such a

situation, the court should incline towards suspending the

sentence.

9. At the same time, it is well settled that the appellate court is

not required to record any definitive or conclusive finding, as

doing so would amount to forming a pre-determined opinion

on the merits of the appeal at an initial stage, without

affording a full hearing on the appeal itself. It is sufficient if

the court merely indicates that the grounds raised are prima

facie appreciable, logical and legally tenable, that they are

founded upon settled principles of law, and that there

appears to be improper evaluation or assessment of

evidence, or non-consideration / disregard of relevant

statutory provisions.

10. It is also to be borne in mind that in several cases, the

conviction may ultimately be converted to a lesser offence,

or the propriety of the sentence imposed by the trial court,

being within its discretionary domain may also require

reconsideration, particularly whether an adequate and

proportionate sentence was imposed after due hearing on

the point of sentence. These aspects, too, are open to re-

examination at the appellate stage.

11. An appeal, in its true sense, is an extension of the trial, for

the reason that additional evidence may be taken, and the

entire body of evidence is subject to re-appreciation on both

factual and legal parameters. At this stage, the appellate

court is empowered to set aside the conviction, modify it,

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remand the matter, or maintain the judgment, as the case

may be.

12. In the High Court, thousands of criminal appeals have

remained pending for the last 20-30 years, including jail

appeals, where even the likelihood of early hearing does not

appear forthcoming. In such matters, instead of taking an

irreversible risk, the court must proceed on the safer side by

placing paramount importance on human dignity and

personal liberty.

13. Upon a thoughtful and circumspect consideration of the

submissions advanced, this Court records the following

findings for the limited purpose of adjudicating the present

application seeking suspension of sentence:

a. At the outset, it is not in dispute that the appellant-

applicant Butta Singh has undergone incarceration for a

substantial period of five years and nine months, while the

co-appellant Bhupendra Singh has remained in custody for

a period exceeding five years in connection with the alleged

recovery of 51.5 kilograms of poppy husk. The quantity

attributed to the appellants, though categorized as

commercial under the statutory framework, is only

marginally above the threshold prescribed. The proximity of

the alleged recovery to the statutory demarcation assumes

significance, particularly when the precise and pure weight of

the contraband remains a matter requiring re-evaluation and

authoritative determination by this Court in appellate

scrutiny.

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b. Furthermore, it has been vehemently contended that the

search, seizure, and sampling procedures suffer from legal

infirmities. The plea regarding procedural irregularities, if

substantiated upon deeper examination, would strike at the

very substratum of the prosecution case. Such objections are

neither peripheral nor cosmetic; rather, they go to the root

of the matter and necessitate meticulous judicial scrutiny.

c. The issues so canvassed by the appellants are not merely

arguable but prima facie substantial in character. They are

imbued with sufficient force and legal tenability so as to

warrant comprehensive re-appreciation of the evidence on

record. The adjudication of these questions would inevitably

entail a detailed and nuanced re-examination of factual and

legal aspects, an exercise which cannot be summarily

undertaken at this interlocutory stage.

c. This Court is thus of the considered opinion that the

grounds urged are appreciable and call for definitive

adjudication in appeal. Given the length of custody already

undergone and the existence of substantial questions

touching upon the integrity of the prosecution case, there

emerges a reasonable and not illusory possibility that the

ultimate determination may enure to the benefit of the

appellants, including the prospect of acquittal. Thus, without

expressing any conclusive opinion on the merits of the

appeal, and confining the observations strictly to the

adjudication of the present application, this Court finds that

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the case presents circumstances warranting favourable

consideration for suspension of sentence.

14. Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. 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-applicants 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 they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.