[Cites 6, Cited by 0]

Rajasthan High Court - Jodhpur

Jagdish vs Union Of India (2026:Rj-Jd:9408) on 19 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:9408]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
     S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                 No. 196/2026

                                          In

                    S.B.Criminal Appeal No.1664/2024

 Jagdish S/o Gisulal, Aged About 54 Years, R/o Village Badavali,
 Ps Kanera Dist. Chittorgarh. Raj. (Confined In District Jail
 Chittorgarh)
                                                                     ----Petitioner
                                      Versus
 Union Of India, Through Cbn Neemach (Mp)
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Bhagirath Bishnoi
For Respondent(s)           :     Mr. Gopal Singh for
                                  Mr. K.S. Nahar, Spl. PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

19/02/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 05.10.2024 passed by the learned Special Judge,

NDPS Cases No.2, Chittorgarh in Sessions Case No.38/2019

(16/2018) whereby on each count he was convicted and

sentenced to suffer maximum imprisonment of fifteen years

RI along with a fine of Rs.1,50,000/- under Section 8/15 &

8/25 of the NDPS Act and minimum sentence and lesser

punishment for the other offences under Section 8/18 of the

NDPS Act.

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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

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.

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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

ultimately succeeds, the period of incarceration already

undergone cannot be undone or restituted. In such a

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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,

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

may be.

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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

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

placing paramount importance on human dignity and

personal liberty.

13. In the case at hand, the appellant-applicant has languished

in incarceration for an extended span approximating six

years during the pendency of trial, and subsequent to the

pronouncement of conviction, has remained confined for an

additional period of nearly one and a half years. Having

accorded anxious, deliberate, and judicious consideration to

the competing submissions advanced with considerable

vehemence at the Bar, this Court considers it apposite to

delineate certain prima facie observations, expressly

circumscribed to the determination of the present prayer for

suspension of sentence pending appeal.

(a) At the outset, it is incontrovertible that the appellant has

already undergone a prolonged and onerous deprivation of

liberty exceeding six years. The conviction emanates from

the alleged seizure of 5709.72 kilograms of poppy husk and

1.315 kilograms of opium. The quantum of custody suffered

cannot be characterized as ephemeral or inconsequential;

rather, it constitutes a factor of undeniable weight in

calibrating the judicial discretion vested in this Court while

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adjudicating an application for suspension of sentence during

the interregnum of appellate scrutiny.

(b) Learned counsel for the appellant has, with marked

insistence, assailed the legitimacy of the search, seizure, and

sampling processes, contending that they were marred by

manifest procedural deviations. The challenge articulated is

neither pedantic nor hyper-technical; it strikes at the

foundational legality of the investigative steps that underpin

the prosecution's case. Should such alleged infractions

withstand rigorous appellate examination, they would

possess the potential to erode the evidentiary substratum of

the conviction and expose it to legal fragility. Contentions of

this character are neither peripheral nor cosmetic; they

traverse the core concerns of admissibility, evidentiary

sanctity, and statutory fidelity, thereby compelling

scrupulous and cautious judicial appraisal.

illusory or bereft of merit. On a tentative assessment, they

disclose arguable and substantial questions imbued with

discernible legal substance, warranting a comprehensive re-

evaluation of the evidentiary corpus. Their ultimate

determination would necessitate an elaborate, balanced, and

detached reappreciation of both factual configurations and

governing legal doctrines, an exercise that properly falls

within the ambit of final appellate adjudication rather than

the constrained parameters of interlocutory consideration.

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14. In the conspectus of the foregoing circumstances, this Court

is persuaded that the issues canvassed merit earnest and

authoritative determination at the stage of final hearing. The

considerable incarceration already undergone, when

juxtaposed with the presence of substantial questions

touching upon procedural propriety and evidentiary

robustness, engenders a reasonable, though by no means

pre-emptive possibility that the appellate outcome may tilt in

favour of the appellant, potentially culminating in

exoneration.

15. 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

circumstances justify a favourable exercise of judicial

discretion in suspending the sentence during the pendency

of the appeal.

16. 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

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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.