[Cites 6, Cited by 0]

Rajasthan High Court - Jodhpur

Kulvinder Singh vs State Of Rajasthan (2026:Rj-Jd:4196) on 22 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:4196]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
     S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 1355/2025

                                          in

                    S.B. Criminal Appeal No.1823/2025

 Kulvinder Singh S/o Shri Gurdayal Singh Ramgadhiya, Aged
 About 30 Years, Resident Of Chak 2G Kaliyan Police Station
 Sadar, Sri Ganganagar. At (Present Lodged In Central Jail, Sri
 Ganganagar)
                                                                     ----Petitioner
                                      Versus
 State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Sunil Vishnoi
                                  Mr. Dungar Dan Charan
For Respondent(s)           :     Mr. SR Choudhary, PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

22/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 15.07.2025 passed by the learned Special Judge,

NDPS Cases, District Sri Ganganagar in Sessions Case

No.12/2018 whereby he was convicted and sentenced to

suffer maximum imprisonment of 20 years along with a fine

of Rs.1,000/- under Sections 8/22 of 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

(Uploaded on 24/01/2026 at 12:13:22 PM)

[2026:RJ-JD:4196] (2 of 7) [SOSA-1355/2025]

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 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-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 Cr.P.C. 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 Cr.P.C, 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 ensures

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

(Uploaded on 24/01/2026 at 12:13:22 PM)

[2026:RJ-JD:4196] (3 of 7) [SOSA-1355/2025]

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

(Uploaded on 24/01/2026 at 12:13:22 PM)

[2026:RJ-JD:4196] (4 of 7) [SOSA-1355/2025]

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 he 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 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

(Uploaded on 24/01/2026 at 12:13:22 PM)

[2026:RJ-JD:4196] (5 of 7) [SOSA-1355/2025]

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

placing paramount importance on human dignity and

personal liberty.

13. In the present case, learned counsel for the petitioner

pointed out a serious defect in the case of prosecution by

contending that the seizure in this case was made by an

unauthorized person; and not competent to make search

and seizure as per provision contained under Section 42 of

NDPS Act. He invited attention of this Court towards

statement of PW-6, Sub-Inspector Jaideep Singh who though

claimed himself to be a posted SHO of Police Station

Hindumalkot on the relevant date, but at the same time

admitted that no record or order to this effect was there on

record or any instance. When comes to the statement of PW-

5 Raj Kumar an Assistance Sub-Inspector of the same police

station, his reply in cross-examination turns turtle the

testimony of PW-6 Jaideep Singh. The witness PW-5

categorically admitted that on 13.09.2017 one Ramesh

Kumar Sarvatta was the posted SHO. The question why to

disbelieve this prosecution witness and why to believe only

PW-6 is certainly a serious question open to moot, but this

Court would refrain from giving any definite opinion in this

aspect at this stage since the appeal is to be heard on

merits. All the issues raised are vital in nature and carry

sufficient force and substance, such that if he are

adjudicated in favour of the appellant, the possibility of

acquittal cannot be ruled out. The grounds raised are

appreciable and necessitate definitive adjudication, which

(Uploaded on 24/01/2026 at 12:13:22 PM)

[2026:RJ-JD:4196] (6 of 7) [SOSA-1355/2025]

would require meticulous examination and re-appreciation of

evidence, and there exists a reasonable possibility that such

exercise may ultimately ensure to the benefit of the

appellant. This Court feels it appropriate to extend the

benefit of bail in light of Roy V.D. Vs. State of Kerala

(2000)8SCC590.

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-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 change the place of residence, he will give in writing their changed address to the trial Court as well as to the counsel in the High Court.