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Rajasthan High Court - Jodhpur

Gurdev Singh vs State Of Rajasthan (2026:Rj-Jd:4390) on 23 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:4390]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                          JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                 No. 1334/2025

                                           in

                    S.B. Criminal Appeal No.739/2025

Gurdev Singh S/o Shri Pal Singh, Aged About 41 Years, R/o
Lakhasar       Police    Station       Goluwala,         District   Hanumangarh.
(Presently Lodged At District Jail-Hanumangarh)
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Pp
                                                                    ----Respondent


For Petitioner(s)            :     Dr. RDSS Kharalia
For Respondent(s)            :     Mr. Surendra Bishnoi, AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

23/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

17.03.2025 passed by the learned Special Judge NDPS Cases,

District Hanumangarh in Session Case No.08/2020 whereby he

was convicted and sentenced to suffer maximum imprisonment of

20 years' R.I. under Section 8/22 of NDPS Act (with a fine of

Rs.1,00,000/- and in case of default of payment, further 2 years'

R.I.).

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

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appreciated again by this court being the first appellate Court.

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 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

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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

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

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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 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, the petitioner is in custody for

approximately five years and this is the first offence of appellant.

There is submission regarding non-compliance of the mandatory

provisions under Section 52A of the NDPS Act. All the issues

raised are vital in nature and carry sufficient force and substance,

such that if they are adjudicated in favour of the appellant, the

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possibility of acquittal cannot be ruled out. The grounds raised are

appreciable and necessitate definitive adjudication, which 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. In light of the

judgment passed by Hon'ble the Supreme Court in case of

Nadeem Ahamed Vs. State of West Bengal, decided on

05.08.2025 in Criminal Appeal Nos.3573-3574 of 2025

(Arising out of SLP (Crl.) Nos.9446-9447 of 2025) and

Mohammed Khalid & Ors. Vs. The State of Telangana,

(2024)5 SCC393 this Court deems it appropriate to extend

benefit of bail to the appellant.

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:-

(i). That he will appear before the trial Court in the month of

January of every year till the appeal is decided.

(ii). 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.

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(iii). Similarly, if the sureties change their address(s), they

will give in writing their changed address to the trial Court.

15. The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant was tried and convicted. A copy of this order shall also

be placed in that file for ready reference. Criminal Misc. file shall

not be taken into account for statistical purpose relating to

pendency and disposal of cases in the trial court. In case the said

accused applicant does not appear before the trial court, the