[Cites 5, Cited by 0]

Rajasthan High Court - Jodhpur

Deepak Alias Dilip vs Union Of India (2026:Rj-Jd:4791) on 27 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:4791]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                               No. 1746/2025

Deepak Alias Dilip S/o Nandlal Soni, Aged About 49 Years, R/o
Mahaveer       Colony,geeta       Bhawan         Road,district          Mandsore,mp
(Confined In District Jail,chittorgarh)
                                                                         ----Petitioner
                                     Versus
Union Of India, Through Cbn
                                                                       ----Respondent


For Petitioner(s)          :     Mr Manohar Singh Hada
For Respondent(s)          :     Mr. K.S. Nahar, Special PP, with Mr.
                                 Gopal Singh Shekhawat, for CBN



                HON'BLE MR. JUSTICE FARJAND ALI

Order

27/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 13.08.2025 passed by the learned Special Judge,

NDPS Act Cases No.2, Chittorgarg in Sessions Case

No.143/2019 whereby he was convicted and sentenced to

suffer maximum imprisonment of 10 years R.I. along with a

fine of Rs.1,00,000/- under Sections 8/29 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

to be appreciated again by this court being the first appellate

Court.

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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 the trial court may be erroneous, and

where logical, legal and sustainable arguments are advanced

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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

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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

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, upon thoughtful consideration of the

rival submissions and a careful perusal of the record, this

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Court finds that the conviction of the appellant Deepak @

Dilip Soni under Section 8/29 of the NDPS Act is not founded

upon any recovery effected from his person or at his

instance, nor upon proof of physical possession or handling

of the contraband. The role attributed to the appellant is

essentially inferential, resting upon documentary material,

call detail records and statements of co-accused, the

evidentiary worth whereof raises arguable questions which

would require detailed re-appreciation at the stage of final

hearing. The receipt relied upon does not disclose the nature

of the goods, and the allegation of conspiracy is sought to be

established by circumstances which are not free from doubt.

It is also relevant to note that a co-accused, namely

Manphool, whose case arises out of the same occurrence and

rests on a comparable evidentiary foundation, has already

been granted suspension of sentence by this Court on

09.01.2026. The appellant has undergone substantial

incarceration and there is no allegation of misuse of liberty.

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 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.

14. Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that

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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.