[Cites 12, Cited by 0]

Rajasthan High Court - Jodhpur

Sahi Ram vs State Of Rajasthan on 30 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
     S.B. Criminal Misc Suspension of Sentence Application
                         No.198/2026

                                       IN

             S.B. Criminal Appeal (Sb) No. 220/2026

Hanuman S/o Bhallaram, Aged About 41 Years, Resident
Ofkalla,p.s Pipad City District Jodhpur Raj.. Presently Lodged In
Central Jail Jodhpur
                                                                  ----Appellant
                                   Versus
State Of Rajasthan, Through Pp
                                                                ----Respondent
                             Connected With
     S.B. Criminal Misc Suspension of Sentence Application
                         No.199/2026

                                       IN

             S.B. Criminal Appeal (Sb) No. 221/2026
Sahi Ram S/o Bagruram, Aged About 52 Years, R/o Bhimsagar
Ps Lohawat District Jodhpur (Presently Lodged In Central Jail
Jodhpur)
                                                                  ----Appellant
                                   Versus
State Of Rajasthan, Through Pp
                                                                ----Respondent


For Appellant(s)         :     Mr. Robin Singh
                               Mr. BR Godara
For Respondent(s)        :     Mr. NS Chandawat, Dy.G.A.



            HON'BLE MR. JUSTICE FARJAND ALI

Order

30/01/2026

1. The instant applications for suspension of sentence have

been moved on behalf of the applicants in the matter of

judgment dated 28.01.2026 passed by the learned Special

Court, NDPS Court-02, District Jodhpur Metro in Sessions

Case No.34/2023 whereby they were convicted and

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sentenced to suffer maximum imprisonment of 4 years' R.I.

along with a fine of Rs.20,000/- under Section 8/18 of the

NDPS Act.

2. It is contended by the learned counsel for the appellants 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 apreciated again by this court being the first appellate

Court. The appellants were 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 applications 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-applicants 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,

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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

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

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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 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.

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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

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 recovered contraband is below

commercial quantity. There is submission regarding non-

compliance of the mandatory provisions of the NDPS Act.

The embargo contained under Sections 32-A and 37 of NDPS

Act is not attracted in this case. The seizure was made by an

unauthorised person has a substance. As per the Notification

No. 1/86 issued by the Government of India, only those Sub-

Inspectors who are duly posted and authorized are

empowered to exercise such powers.

14. Hon'ble the Supreme Court passed a landmark judgment in

the case of Roy V.D. Vs. State of Kerala reported in AIR

2001 SC 137 wherein, in a similar situation, it was

observed as under:-

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16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the Narcotic Drugs & Psychotropic Substances Act or make a complaint under Clause (d) of Sub-section (1) of Section 36A of the Narcotic Drugs & Psychotropic Substances Act. If follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the Narcotic Drugs & Psychotropic Substances Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the Narcotic Drugs &Psychotropic Substances Act and use of such a material by the prosecution vitiates the trial.

18. It is well settled that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice.

Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence bases on such material butal so the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Cr. P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice.

15. 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

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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.

16. Accordingly, the applications for suspension of sentence filed

under Section 389 Cr.P.C. are 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-applicants named above shall remain suspended

till final disposal of the aforesaid appeal and they shall be

released on bail provided each of them 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 they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.