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Rajasthan High Court - Jodhpur

Amareekram vs State Of Rajasthan (2026:Rj-Jd:9234) on 18 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:9234]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
     S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                   No. 1122/2025

                                           In

                    S.B. Criminal Appeal No.1335/2025

 Amareekram S/o Bhuraram, Aged About 47 Years, R/o Ward No.
 10, Dabalibas Maulavi, Police Station Sadar Hanumangarh, Dist.
 Hanumangarh         (Raj.)       (At   Present       Lodged         In    Central    Jail,
 Hanumangarh)
                                                                            ----Petitioner
                                        Versus
 State Of Rajasthan, Through Pp
                                                                          ----Respondent


For Petitioner(s)             :     Mr. J.K. Haniya
                                    Mr. Vijay Raj Bishnoi
For Respondent(s)             :     Mr. Surendra Bishnoi, AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

18/02/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 02.06.2025 passed by the learned Special Judge,

NDPS Cases, Hanumangarh in Sessions Case No.13/2019

whereby he was convicted and sentenced to suffer

imprisonment of twenty years RI along with a fine of

Rs.1,00,000/- under Section 8/22 of the NDPS Act.

2. It is contended by the learned counsel for the appellant 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

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to be appreciated again by this court being the first appellate

Court. The appellant was on bail during trial and did not

misuse the liberty so granted to him; 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-applicant 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

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

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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

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

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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,

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

may be.

12. In this 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

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

placing paramount importance on human dignity and

personal liberty.

13. Upon a careful, reflective, and judicious evaluation of the

rival submissions advanced at the Bar, this Court deems it

appropriate to record the following prima facie observations,

strictly confined to the adjudication of the present

application seeking suspension of sentence:

(a) At the threshold, it remains undisputed that the

appellant-applicant has endured incarceration for a

protracted and substantial duration of more than six years.

The conviction arises out of the alleged recovery of certain

medicinal preparations, namely 150 strips containing 1500

tablets of Trio-SR, 45 strips comprising 450 tablets of

Foridol, and 14 strips containing 140 tablets of XL-Pam 0.5

(Alprazolam). The length of custody already undergone is

neither fleeting nor negligible; rather, it assumes material

significance while assessing the equities governing

suspension of sentence pending appeal.

(b) It has been strenuously and emphatically urged on

behalf of the appellant that the search, seizure, and

sampling procedures were vitiated by palpable procedural

irregularities. The challenge is not of a superficial or

technical complexion; instead, it purports to impugn the very

legality and sanctity of the foundational steps upon which

the prosecution edifice rests. If such infirmities are

ultimately substantiated upon thorough appellate scrutiny,

they would corrode the substratum of the prosecution case

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and render the conviction legally vulnerable. Objections of

this genre cannot be dismissed as ornamental or ancillary,

they penetrate to the root of admissibility, evidentiary

integrity, and statutory compliance, thereby necessitating

meticulous and circumspect judicial examination.

bereft of substance. On the contrary, they appear, at least

prima facie, to be arguable, substantial, and imbued with

sufficient legal gravitas to warrant comprehensive re-

appreciation of the evidentiary record. Their adjudication

would inevitably entail a detailed, nuanced, and

dispassionate reassessment of both factual matrices and

legal principles, an exercise which transcends the limited

compass of interlocutory consideration and must properly

await final hearing of the appeal.

(d) In view of the foregoing, this Court is of the considered

opinion that the grounds urged merit earnest and definitive

adjudication in appeal. The considerable period of custody

already undergone, coupled with the existence of substantial

questions touching upon the procedural integrity and

evidentiary sustainability of the prosecution case, engenders

a reasonable though not pre-judged, possibility that the

ultimate outcome of the appeal may enure to the benefit of

the appellant, potentially extending even to acquittal.

14. Without expressing any conclusive or determinative opinion

on the merits of the appeal, and confining these

observations strictly to the disposal of the present

application, this Court is satisfied that the cumulative

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circumstances justify a favourable exercise of judicial

discretion in suspending the sentence during the pendency

of the appeal.

15. 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-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.